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CONSTITUTIONALIST.
SUNDAY MORNING, JULY 25,1869
LAW OF GEORGIA.
■PflPthe Atlanta Intelligencer we get the"
Precision rendered by the Supreme Cout of this
State, sustaining the Relief Law, in the case of
“ Cntts & Johnson, et. nl, pl.iintiffa in error, vs.
N. A. Hardee, survivor, defendant in error,”
which is copied from Part First—Volume
xxxviii—of this Reports of the Decisions of
the said Court, made by its Reporter, Col. N.
J. Hammond, and just issued Irom the press.
We have been unable to find room in our
present issue lor the dissentient opinion of
Judge Warner, but will lay it before on.* read
ers on Tuesday morning.
In presenting this decision we have sacrificed
our usual variety oi mailer, in order to aid, to
the extent of our circulation, in placing it be
fore the people of the State. The volumes em
bracing tbe reports and decisions the Su
preme Court reach but few outside of tbe legal
profession. At the subject of “ Relief" is of
general and absorbing interest to tbe people of
Georgia in all professions and pursuits, we
conceive that the space occupied by the an
nexed decision of the Supreme Court is well
employed in dissemiuating information which
the people of the Stale will acquire in uo other
manner so readily and cheaply as through l ire
press of Ihe Slate. Helow will be iound the
decision :
Cults & Johnson cl., al. plaintiffs in error, vs.
N. A. Hardee, survitor, defendant in error.
Brown, C. J.
1. While Hie courts have the power, and it is
their duty, when a proper case is matte, to de
clare acts of the legislature unconstitutional
and void, such acts are always presumed to he
constitutional, and the authority of the courts
to declare them void should he exercised will)
great caution, and should never be resorted to
bnt in clear ami in gent cases.
3. That provision of the Constitution of the
United States which denies to a State the right
to pass any law impairing the obligation of
contracts, does not interfere with the right of a
State to pass laws acting upon the. remedy.
3. There is a plain -distinction between the
obligation ot a contract and the remedy for its
enforcement, and while the Legislature may
not 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 substitute remedy is always left to the credit
or, so long ns the State does not deny to her
courts jurisdiction of contracts), and to pro
scribe such rules of procedure and of evidence
as may, in its wisdom, seem best suited to ad
vance the administration ol justice in its courf.s.
4. That part of the act of Hie Legislature
passed at its fate session, entitled “An act for
the relief of debtors, and to authorize the ad
justment of debts,upon principles of equity,"
which provides for a change of the rules ol
eV'id&ecc, (under which this-ease originated), is
hot unconstitutional, though it may permit
evidence to go to Lite jury which has not here
tofore been allowed, and which the courts may
consider irrellevcnt and improper. It is the
province of the Legislature to prescribe the
rnles of evideuce and of the courts to adminis
ter them.
5. It is no objection to the constitutionality
ot this act that it authorizes the jury to reduce
the amount of the debt sued for, according to
the equities of the case, as this is done every
day in court, in case of partial failure of con
sideration, and the like. This must be done,
however, according to the real equities between
the parties, and not according to the caprice of
the jury, and when so done, it neither impairs
the obligation of the contract nor works injus
tice to the parties litigant.
6. If this should he seized upon by the jury,
and used as a pretext for reducing the debt,
otherwise than the equities between the parties
permit, it will be the duty of the court to set
aside the verdict when that fact is made plain-
ly to appear.
7. In this case, the obligation of the contract
was not in any degree impaired by the filing of
the pleas by the defendant, to which objection
was made, as a foundation for the introduction
lion of evidence under the statute, and the evi
dence should have been received, and if the
jury had made au improper use of it, or found
contrary to law and evidence, it would then
have been time enough for the court to inter
fere and set aside the verdict.
8. When the statute authorizes certain facts
to be given in evidence, a demurrer to a plea
which lays the foundation for such evidence,
sbonld not be sustained. The old rules of
pleading iu such cases must yield to the stat
ute.
McCay, 3.—Concurring.
1. It is not to be presumed that the Ligiela-
Sri-tUcekli) Constitutionalist
tore intends to violate the Constitution of the
United States, and when words are used in an
aet, they ought to be construed, if possible, so
as to make tbe act consistent with that Consti
tution.
2. Tbe consideration of a contract, and
whether there has been a tender of the whole
or any part of a debt sued on, and if the debt
was not paid, that it was the creditor’s fault,
are not only in all cases fit matters for proof,
but are often of great importance in arriving at
proper conclusions as to the true rights of the
parties iu the matters before tbe court. Nor
can such evidence, in any proper use ot it, at
all tend to impair the obligation of the contract
sued on.
3. If the property, upon which the credit
was given in the contract, has been lost, or
rendered worthless, it is competent for the
Legislature to permit the defendant, when the
contract, is sued upon, to show by whose lanlt
I hat property was lost or destroyed, and the
value of it at the lime of the contract, and al
the time of the loss.
4. 'J’kat clause ol the act of the Legislature
under discussion, which authorizes the jury,
in suits upon certain contracts, to reduce the
debt sued upon, according to the equities of
each case, was not intended to permit them to
impair the obligation of tbe contract of the
phrties. The equity and justice there mean!, is
that lair and honest duty which each owes to
the other under the contract, to be gathered
from the whole transactions it actually ocenrred
between them, and from the nets creating legal
j** equitable obligations, which have happened
’.ft!" “Y,t* •dace the date of tbe contract.
5. Ihe obligation .. _ «* uuul i* j m .
paired by I lie Legislature of a State, übßer m<
guise ol changing Ibe rules of evidence, or al
tering the mode of procedure. Nor can the
Legislature authorize a court or a jury so to
adjudicate between the parties to a contract, as
to alter or impair its obligation as it was, in
fact, entered into.
tt. Consistently with these principles, a State
Legislature may-alter the rules of evidence,
aud change tbe mode of proceeding in the
State courts. Nor is it the province of this
court to declare an act of the Legislature void,
because it permits the introduction of evi
dence, which, in the opinion of the court, may
be irrelevant to the issue, aud calculated to
distract or mislead the minds of the jury.
7. The act of the Legislature, in 1808, so far
as it allows the defendant, in all suits upon
ihe eontraets dated before the Ist of June, 1865,
to give; in evidence the consideration of the
debt sin and on, whether any tender has been
made, and if Ihe and ibt was not paid, whose
fault it was, wlmt properly ihe credit was giv
en upon, and if that properly has been lost, by
whose fault it. was, and so far as it authorizes
the jury in such eases, to reduce the debt sued
on, according lo Ihe principles of equity, is
not, if construed according to the well estab
lished rules for the construction of statutes, in
violation oi l bat clause of tbe Constitution of
the United Stales which prohibits aqy Stale
from passing a law impairing the obligation ol
contracts.
8. Should any court of this Slate give to the
act in question, in any c ise tried before it,
such a construction as would impair the ob
ligation ol the contract under investigation,
this court, iu a proper case made, will correct
the error.
•J. A plea flle<(, selling up any fact which, by
express enactment of the Legislature, are per
mitted to be given in evidence, is not detnurar
blc.
Squarea.
a Week.
12 Weeks-’
I
3 Work*.
1 Month.
2 MoutLx
3 Months.
I
j ■[ Months,
jf. Month#.
|« Months.
VVarnp.u, J., dissenting.
This was an notion brought by the plaintiff
against the defendants, on a promissory note
for the sum of $5,220, dated January 22, 1861,
and due forty-five days after date.
The defendant, Stewart, filed a plea setting
up, by wav of defense to the note, certain facts,
:ts provided by the provisions ol the first sec
tion of the act of 1868, “ lor the relief of debt
ors, and to authorize the adjustment of de’-ts
upon principles o! equity.” The plaintiff de
murred to the defendant’s idea, ’ and the court
below sustained the demurrer, and the defend
ant excepted.
The decision of this question necessarily in
volves the, constitutionality of the act of 1868.
Ttie first section of that aet. provides “ that, in
all suits which shall tie brought for the recov
ery of debts, in any of the courts of this State,
or upon contracts for the payment of money,
made prior to the Ist of June,.lßos, (except
Nfeuwhc hi"- or sale of- laves,) it ahatl he KtWIWT
’for the pnrtlesTTuid! sut h cases, to give in evi
dence before the jury impannelled to try the
same, the consideration of the debt or con
tract which may be the subject of .the suit, the
amount and value of the property owned by
the defendant at the lime the debt was eon-
traded, or the contract entered into, to show
upon thfc faith of yvhat property c-iedit was
given to him, and what, tender or teuders of
payment lie 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 re
ceive the money tendered or offered, to be tender
ed, the destruction or loss of Ihe property
upon tbe faith ol which the credit was given,
and how aud in what manner the property was
destroyed or lost, and by whose deiaull, and in
all such cases the juries, which try the same,
shall have power to reduce the amount of debt
or debts sued for , according to the equities of
each case , and render such verdicts ns to them
shall appear just and equitable .” This Act ol
the Legislature, in my judgment, necessarily
impairs the obligation of the contract, as it ex
isted under the law at the time the contract teas
made, and it makes no difference whether that
result is produced under the name of a remedy
or under the pretext, of regulating the admissi
bility of evidence Is the contract and the obli
n-atiori to perform it as valuable now, under the
provisions ot the Act of 1868, as it was under
the law applicable to the contract at the time it
seas made t
ltehef law. Demurrer. Dec id dby .ludye J. M.
'Clarke. . Sumter Superior Court. October
Term, 1868.
iCutts& Johnson and James Stewart., on the
22,1 ol January, IS6I, gave their single bill or
bond for $5 219 01, payable to the order of N.
A. Hardee & Cos., forty five days after date, and
also an agreement to pay expenses if suit had
to tie in-ought, on it. Suit was brought thereon,
in March, 1801. One of the plaintiffs died, and
the case proceeded in the name of the survivor.
The cause was pending in October, 1868, and
then Stewart, plead that “ 6aid note was m ide
prior to the Ist day of June, 1865 ; that the con
sideration for the same, was a security of A. S.
Cutis only; that, that at the time said note was
made, the amount and value ol the property
owned by the defendant, was about s'loo,ooo,
and that on or about, the day of , 18—,
said dcfeijd int tendered, or offered to tender,
payment of said draft in currency, then in cir
culation generally, and which said plaintiff re
fused to receive iu payment thereof; said prop
erty was lost or destroyed in the following man
ner, 10-wil : one hundred negroes, worth
SIOO,OOO, were manumitted, and the property
therein destroyed ; he owned about five thous
and acres ot land in Sumter and Schley coun
ties, then of the wine of about $45,000, and
not worth more now than $7,000 or $8,000;
he, sold the most valuable place; *>" ,or
$5 000, in Cou/«'»' rate money, most of which
money is now on hand, and worthless ; lie had
no interest In the consideration of said note ;
said property was destroyed by fire, etc., and,
fijrther, “ that by the Constitution of the State
ol Georgia, this court has uo jurisdiction of this
case."
The plea was demurred to. .and the demurrer
was sustained. This is assigned as error.
W. A. Hawkins, Lyon & DeGraflenreid, Va
son & Davis, lor plaintiffs in error.
J. J. Scarborough, C.T. Goode,for defendant
in error.
Brown, C. J.
The first section pf the act of the Legislature,
passed at the session of 1868, entitled “ an act
lor Uie relief of debtors, and to authorize the
ad justment ot debts upon principles of equity,”
is in these words :
“ That in all snits 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 he lawful for the parties, in all
such cases, to give in evidence before the jury
empanelled to try the same, the consideration
of the debt or contract which may he the sub
ject of the suit, Uie amount and value of the
property owned by the debtor at the lime 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
ot the property upon the faith of which the
creditor was given ; and how and in what man
ner the property was destroyed pr lost, and by
whose default; and in all snch cases, the juries
which try the same, shall have power to reduce
the amount of the debt or debts sued for, ac
cording to the equities of each case, and render
such verdicts as to them shall appear just and
equitable.”
The picas filed in this ewe were such as were
necessary to let in the evideuce 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 unconsti
tutional and void. The court suslaiued the de
murrer, and ordered the pleas to l>e stricken
from the record, and that decision is assigned
as error.
1. It cannot be questioned that the conrts
have the power to declare acts of the Legisla
ture unconstitutional, null and void ; and to re
fuse, on that gronnd, 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 presume! to be
constitutional and binding, am! should never
be set aside by the courts, except iu clear and
urgeut 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
tbe United States which denies to any State the
power to pass any law impairing the obligation
of contracts. But that provision of the Con
stitution dogs not prohibit the passage of laws,
by the State acting upon the remedy.
3. The distinction between the "obligation ol
a contract aud the remedy for its enforcement,
is well established by the authorities; and
while the Legislature has no right to impair tbe
obligation of the contract, it has the undoubted
right to change, modify, or vary the nature and
extent of tfee remedy, proving a. substautive
remedy is left to the creditor. 12 Wheat., 285,
349-350 ; 4 Wheat., 200.201 ; 1 Howard’s Reps.,
315,316; Story on the Const.,’ srt. 1385; 3
Peters’ Reps.. 280 ; 5 Pet., 4">6 ; 13 Pet., 312;
23 Maine Reps., 318,323; 18 Maine, 109; 2
Fairs., 284; 6 Pick., 501; ICo wen, 501; 2 Ala.
»?•».. 4ft|; 9 Ala., 713; 1 Texas, 598; 630; 4
.Wntls <ST Serg., **so; 5 How. Miss. Reports,
285; 1 Kvrnan’s Reps., gfw; a Uouin, 274 ’ 4
Gilmer, 221; 1 Morris, 70*: 7 Ga. ft., 163; 9
Ga. ft,, 258; 12 Ga. ft., 437; 13 Ga. ft, 306;
16 Ga. ft., 151 ; 28 Ga. ft, 345 ; 37 Ga. It., 440 ;
and numerous other authorities which might
be cited sustaining the same doctrine.
So loug as the State undertakes to furnish
remedies, she may vary or modify them at
pleasure, if she does not destroy their sub
stantive charnctc - . But it does not necessarily
follow that a Slate is hound to furnish any
remedy at all for the enforcement of contracts.
If, in the organization of their government, she
should determine to establish the cash system
in all trade and commerce, and should deny to
her courts jurisdiction over any executory con
tract for the payment of money, I know of no
coercive power under our system of govern
ment 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 sueb a refusal on the
part ot a Slate to enforce the contract, as the
injured party, in ease the coutraot were not de
clared illegal by the laws of the State where
made, would have his right of action wlieivvr-r
he might, find the other party or his property,
within the jurisdiction of a State whose laws
afford remedies for the enforcement of such
eontraets.
The late Chief Justice Marshall, who was
certainly one of the ablest jurists ot any age,
while he characterizes the conduct of a Stale,
which would refuse t-' afford remedies to en
force contracts, in very strong terms of re
proach, admits the power-of the Stale to with
hold all remedy, and denies that there is any
coercive power over her, to compel her to en
force Ihe performance of contracts. In Ogden
t'.f. Sanuders, 12 Wheat, 350-1-2, be says:
“ Our country exhibits the extraordinary spec
tacle of distinct, and, in many respects, inde
pendent governments, over (lie same territory
and the same people. The local governments
are restrained from impairing the obligation
of contracts, hut they furnish the remedy to en
force them, and administer that remedy in tri
bunals constituted by themselves. It lias been
shown tbaf the obligate n is distinct from
remedy, and it would seem to follow that the
law might set on the remedy without acting
on the obligation. To afford a remedy is cer
tainly the high duty of those who govern to
those who are governed.
A failure in tbe performance of this duty,
subjects the Government to thejnu reproach
of the world, lint the Constitution has not un
derlaken to enforce its performance. That in
strument treats the States with the respect
which is due to intelligent beings, understand
ing their duties, and willing to perform them ;
not as insane beings, who must be compelled
to act for selfnrcsfr.ya.tiou. Its language is
S|33t*S??lJ3^«of risirgitU. rfbt coercion. It pro
hibits the States from passing any law Impair
ing .tho obligation of contracts; it does not en
join them to enforce contracts. Should a State
be sufficiently insane to shut up or abolish its
courts, aud thereby withhold all. remedy, would
Ibis annihilation of remedy annihilate Ihe ob
ligation also of contracts? We know it would
not. If the debtor should come within the ju-
risdiction of auy court of another State, the
remedy would he immediately applied, and the
inherent obligation of the contract enforced.
This cannot be ascribed to a renewal of the oli
ligatoin ; for passing the line of a Stale cannot
recreate an obligation which was extinguished.
It must be the original obligation, derived
from the agreement of the parlies, and which
exists unimpaired, though the remedy was
withdrawn.” “ The Constitution contemplates
restraint as to the obligation of contracts, not
as to the application ot remedy." So, if a
State shall not merely modify or withhold a
particular remedy, hut shall apply it in such
manner as to extinguish the ob’igation without
performance, it would be an abuse of power
which could scarcely be misunderstood, but
which would not prove that ixmedy could not
be regulated without regulating obligations."
“If it leaves the obligation untouched, bnt
withholds <he remedy , or affords one which is
merely nominal , it is like all other cases of inis
goverument, and leaves the debtor still liable
to his creditor, should he be found, or should
iiis property be found, where the laws afford a
remedy.”
These quotations from this great luminary of
legal science, who was neVer accused 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.
1 am now discussing the question of tlie pow
er of the States to vary, modify, change, or with
hold remedies ; and not the justice or proprie
ty of sueh action on their part. It the. state of
things had existed when Chief Justice Marshall
delivered theuliove opinion which now exists
in Georgia; if two-thirds of the whole property
of the State, including over $300,000,000, of
one. particular kind of property, had been de
stroyed by the fortunes of war and the action
of Government, and the Slate had, in such an
emergency, before her people had time to re
cover from the sebock, attempted, by the exer
cise of all her powers, to save something of the
wreck, and to relieve them from the payment
of debts contracted for property destroyed l»y
the Government, which must have been a.total
loss to the vendor, it he had retained it; or, in
case of tbe destruction of the property on the
taitb ot which debts were goji traatmt, if she
had attempted, by tbe rullest exercise of her
»w-A:t!ic of her powers, to compel nn 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, while acknowledging the ampli
tude of her power to modify, change, or with
hold remedies.
It is claimed, however, that the Supreme
Court of the United States, iu the ease ol Mc-
Cracken tis. Hayward, 2 llow., 60S, has ruled
that the law of the State, in existence at the
time the coatraet is nfnde, becomes part of the
contract, and that the Legislature has no right
to ehauge that law, no matter whether it ap
plies 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. lam free to admit that there are
expressions in the opinion delivered by Mr.
Justice Baldwin, in tint case, which seem to
favor that constructicm. It is worthy of re
mark that tint base does not seem to have iieen
very well considered by the court, as there was
no appearance by counsel on either side. A
writteH argnment was submitted for the plain
tiff in error, in whose favor the decision was
made; but nothing, whatever, was submitted
for the defendant. Justice Catron observes,
“ I have formed no opinion whether the Statute
of Illinois is constitutional or otherwise. The
question raised on it is one ot the most deli
cate and diflcult of any ever preseuted to this
court; and as our decision affects tlie State
Courts throughout, in their practice, I feel
unwilling to form or express any opinion on
so grave a question, unless it is presented in
the most undoubted form, and argued at the
bar.”
It is farther to be observed, that it was not
necessary to go to this to decide the
question made by the record then before the
mnrt..
The State of Illinois had not denied to her
courts jurisdiction of the class of cases then
before the court. But, while she undertook to
furnish a remedy, she had enacted that prop
erty levied on to satisfy executions on debts
contracted prior to the Ist of May, 1841, should
be appraised by three householders, and have
its value endorsed upon the exjeutiou, or upon
a piece of paper thereunto attached, signed by
them; and a sale was forbidden, till two thirds
of tbe appraised valne should be bid tor the
fOfJGUSTA ’(Ga,) SUNDAY' MORNING, JULY 25, 18(59
property. It is *«f**lear that this provision of
tbe statute might defeat-all remedy, while the
State professed to fufcnish a remedy, as no sale
could ever be made tilP two-thirds of the val ue
placed upon thepropeHy'by the appraisers was*
bid, no matter how unreasonably, or how much '
above the true value, the apjjraiacrs might price
tbefproperty. The substantive character of. the:
remedy was destroyed by the statute, which
proposed to give a remedy, aud the decision of
the court, declaring this statute unconstitu
tional, was in harmouy with current of author
ities on this subject. The constitutionality of
this act was (fee only question presented for
the cousideratStoof the court. They declared
it uuconstitutiOTMltond, to that extent, the de
cision is authority. But all that is said about,
tbe law of the remedy, enteriqg into the con
tract, and forming part of it, is obitet. And
with-the most profound respect lor that high
tribunal, and for the opinions of tjie able judges
who then sat on the bench, I will add, it is
against the current qf authority, and in conflict
with the opinions of many of the ablest jadges,
including Chief Justice Marshall, who have
adorned the position held by Mr. Justice Bald
win and his associates.
In commenting on the decision hi this ease,
in 1 Roman ’6 Reps., 386, Judge Dooio, of New
York, Rays: "In the able and discriminating
: opinion of Chief Justice Taney, in the first
case (firotfsontw. Keu2'ie),'.lhe-'Htrt»t tqw’make
such changes (ih tbe remedy) Is distinctly as
sci ted; and, U the opiniou in McCraken. vs.
Hayward held the contrary, it was nscessarv to
go to that length, and the doctrine would be
hostile to the principle of several prior cases,
and au unwarrantable restriction upon the
powers of the State governments.”
The objection to the constitutionality of the
Illinois act rested upon tbe ground that the
property might never bring two-thirds of tbe
appraised value. This view is suslaiued by
the decision iu the rise, Tbe Uirtted States vs.
Conway, Hemp., 313, in which it was ruled that
a law which protects the debtor’s property
from sale ou execution for one year , if two
tbirds of the appraised value shall not be of
fered, does not impair the obligation of tbe
contract.
The ease ol Van Hoffman t’s. The City ot
Quincy, 4 Wallace, 535, when carefully exam
ined, is found to contain no authority for the
position I am controverting.
At tbe time the bonds in question were is
sned by the city, there were statutes of the
State of Illinois authorizing the city to issue
them, and authorizing and requiring the corpo
ration to levy, from lime to time, sufficient taxi
to pay the coupons and bonds as they become
due. The aet of 1863 attempted to repeal the
acts authorizing and requiring the collection of
sufficient tax to meet the payments at required,
by the terms of the contract, Aud the sole
question presented lor tbe consideration ol the
Supreme Court of the United Suites 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 th* issuing of the
bonds under tbe 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 Ibis ease, that the
statutes themselves formed part of the con
tract, as it was under their express authority
that the city issued the bonds, and their re)mat
amouuled to a repudiation of the bonds. Well
might the learned Judge who delivered the
opinion say, that the which subsisted at
the time and place ot making the contract, and
where it was to- he. pen-formed, entered into and
formed part of it. As applicable to tbe case
before the court, no one can question the cor
rectness of this position.
The very illustrations given by tho teamed
Judge show that bn does not intend to lay
down the broad proposition contended for in
this court, that the law of the remedy existing
at the time outers into the contract, and be
comes part ol it. Mr. Justice 8 way up says:
“ Illustrations ol the proposition are found iu
the obligation of the debtor to pay interest alter
the maturity of tbe debt, when tbe contract is
silent ; iu the liability of tbe drawer of a pro
tested bill to pay exchange tor damages, and
in the right of the drawer and endorser to re
quire prool of demand and notice.” These il
lustrations show what is meant by (lie general
language usad, aud are not inconsistent with
the position that the Legislature may pass lawn
actiug upon the rgjttJcft/. while it inAw *■»"*•’iff«-
pair the obhdkt&n of u.e c-onti-act/ '. *
Indeed, tbe learned Judge distinctly admits’
Ibis power in the Legislature. He says: "This
has reference to legislation which affecis the
contract directly, and not indirectly, or only by
consequence.” Again he says: “ They (the
States) may also exempt Irom sale, under exe
cution, the necessary implements of agriculture,
the tools of a mechanic, and articles of house-
hold furniture. It is said, regulations ot this
description have always been considered, iu
every civilized community, as properly belong
ing to the remedy, to be exercised by every sov
ereignty according to its own views of policy
and huiuauily. It is competent for the Slates
to change the form of the remedy, or to modify
it otherwise, as they may see tit, provided no
substantial right secured by the contract is
thereby impaired. No attempt has been made
to fix definitely the line between alterations of
the remedy, which are to be deemed legitimate,
aiul those which under the form of modifying
the remedy, impair substantial rights. Every
case must be determiued upou its own circum
stances.”
Again, he adds: “If these doctrines ware
res integrm, the consistency and soundness of
the reasoning which maintains a distinction be
tween the contract aud 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 ;
aud they are supported by such ‘ au array of
judicial names that it is hard for the mind not
to feel constrained to believe they are correct.”
Here, then, the difference., lietween obligation
and remedy, or between contract and remedy, is
admitted in the fullest sense as firmly estab
lished in the Snpreme Court ol the United
States ; 100 firmly established to lie shaken ,
and the right ol a State to chan/e the formal
the remedy, and otherwise to modify it, is dis
tinctly conceded in the very case relied on in
this court by those who deny this power in the
Legislature, and contend that the law ol the
remedy in existence at the time tbe contract
was made, enters into aud becomes a part of it.
The Supreme-Court docs not hesitate to admtt
that there, is no definitely fixed line between
alterations of a,remedy, which are to be deemed
legitimate, and those which, under the form ol
modifying the remedy, impair substantial
rights ; and that every ease must be determined
“upou its own circumstances.” Theadmission
by that high tribunal of the right of the Legis
lature to alter or modify Uie law of remedy at
all, is a conclusive admission that tire law ol
remedy in existence at the time is no part ol
the contract, and does not enter into it. II it
did, the least change or modification ol the
law ol the remedy would, to that extent, impair
the Obligations 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 the critical examination ? Can it be
sustained upon principal or anthoaity? I
think not. When an attempt is made to re
duce it to practice, its advocates, appalled by
the mischief that would result from its enforce
ment, are driven to engraft upon it so many
exceptions, resting upon principles so abso
lutely in conflict with the principles upon
which the rule is claimed to rest, that its force
is destroyed, and theunsounduess of the posi
tion 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 he a sound one, how it is
that the Legislature may shorten the period to
four years, or extend it to eight years, and com
pel parties to contracts then in existence, to
conform tojit 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 ol
the note stipulates that he shall be allowed six
years alLer the note is due to bring his suit, and
the maker agrees to it, and no change ot the
law, reducing it to four years, can bind the
payee or holder of the note. Ou the other
hand, if the rule he 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, ex
tending the period to eiglt years, impairs the
obligation of the contract,iwd is null and void.
I need not cite authorities to prove that the
Legislature, in the case supposed, has the pow
er to limit the period to foof 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 tbe Legislature Iris the undoubted
right to vary, alter or modify the remedy at
pleasure. How can this universally acknowl
edged rnle of decision tie sustained, if the law
of the remedy, as it exists at ttaf.tirae the con
tract is made, enters into, and becomes part of
it? U
I will cite a single ease, decided by the Su
preme Court of the United States. The Bank
of Alabama vs. Dalton, 9 Howard, 522, to Bhow
the extent to which this doctrine has been car
, • ff
■ State of Mississippi passed a statute
Koiis, ih 1844, which barred all suits on
! recovered within that State, after a
ven years; and ail suits on judgments
rendered but (If the State after six
Ml suits obtained
Slate before tho passage pf Act, with
ears after the passage of the Act.
was obtained by the plaintiff' against
lant, hi Alabama, on the 7th of Feb
ruary, 1843. The defendant, afterwards, re
moved to Mississippi, where he arrived on the
iGtb dav of-November, 1546, more than two
y*ars after H|e date of tbe limitation Aet above
iqeationed. Suit was commenced against him,
oh the judgment iu the United States District
II Northern District of Mississippi,
arrived within that State,
inf pleaded the statute of limita
isippi As his defense, to-wit : that
tot commenced within two years
j of said Act. It was admitted
the first day he had been in Mis
»uld have been sued there. The
rt of the Unitfed States were uuan
io opinion and so ruled, that the
litatious ot Mississippi governed
,(SBSsgii
dß&Bm&trm .swS Jiwk j •
.'-nd am governed by the laws and
hWßwcipal regulation's oi .Uce Sftotc yfaeretbe
pthedy is sought, amkm&lSof' controlled
by tbe . a***?
tbe laws t" r 1 Tpi I Ini n ~ffwri i i’n it
Was not so in lhi»c|H.
lost his remedy, in AlTtmefS; by th3 idiaC
«f tbe defendant- frlfei ihatJHnie) "MlnK
fie sued tbe jirst. fltjj tbe defehdaut feJpSflTfLi
Mississippi.-it was Jield that the lawaJWWI
State, which deriied him any remedy.; SWW
In violation ol llicUoiistittition. laothci wuiijfv]
the Supreme Oouit of the United Statcs'hasTVu.j
<ffet:tf held (Mpw State might destroy the*
remedy within ser juris a -judg- j
meat from un/iper State, faj stjaKgof Jirnilaj
tions, without ftnpMrlng thjl
qonlract. f .-,4w>
Again, the lSwid|i!bc Suite, at the tiuteApL
contract is made.'SillftDt ioiprispnraanfilFj
debt. The debtor- contract witf.Jfy
ktfß*jyleGge that it isjjro right' of the eng f fl ’
ini&;r fheTdjF governing the; remedy tkkJp
exMertop, ufarresl andamprffton him
4f tiou-perfoweancV tfll die ddfct is paid. ’
creditor knows thiA to tie tffo lew of the mini p
dy, and contracts willtreferpn<S|%o it.
iMfeirtay rest on this ivMie only reliable and -jf.
ieejive ceined_p i He>-m*M<Sow thfe ebara«jter
q|ihe dehtorf that lie fs wanting iu. mjncpdc,
that all hi« property is in money^aonds,
Lr other chases iu action, wbh-h cannot be
rafcibed by tlie fevying olheV-r. tbit be knows
jiitaTiis right.,* under lb* rente:f. i•' nvj n( tiff,
arre»M»Uo oi- !* ca. *d, v .iu4
‘ti»» till he delivers up his hidcfeh treasure,
thicii is ample for tbe satisfaction of the debt.
olying on Mils remedy In*, gives credit, which
pe would not give if Ilia remedy by imprison-*
wrat did not exist. Now. H sh.- >le under
(ottMderation.be correct, lie eontraets for the
jigSt to resort to ibis means, and use this
remedy to collect bis n it, H<- givef4’»f eadll
hpon ibis faith, and up* n tins alone. A change
pf Ihe taw which abolishes imprisonment for
jlgbt, and takes away this remedy, destroys the
-cry remedy upon the faith of which (he credit
jyas given ; it takes away all etfeetivV remedy,
#«• renders the hiss of lire f’"bt absolutely ce'r
l-tiM, which, Without lir, nui.ge, he would have
fad n« difficulty in collecting, the payment of
thleh the debtor would not have attempted
§> evade, but for the in it I >.« ’ the
fpwfetty. '- ,
£ And, in thi" w n*t n. ' *arjtc in |
:4ldnd that th- I--ng'i J l ,/ *. - .’'.oja*!* 1
4As adopted -•* this ton-a t- |> .
&s4 Wf may reasonably »■ ',* ft at bT- f. ]
Wm* of lire C.'on.fitUtio;', . •• • .(. diar
rtpMLtfie rule,.anil wljAv, - lij i: Jy?
eat im-,1 dot iu h:H . .>-! !
YS« «.‘y-q t-‘ - P I’ l any ntlue n y when
v'- •:» n ,>U6AOt the
«ft*-B’wii.c. (yf-lp passing law. > 'fidg :
of ci>ii w „., Then, ui >»? J
f insisted that they inter* !.t- . j
jfrjjy to alter, vafji, or uotdish Uni J
MjPfu- 4 ) f’»«i U* liotiy tlierii the- right to, t'fwuea
y-?4jh(jßjK‘f’rsfnieii>tts of. much less value td
n,o ci • *>vr v
£»'• bod.v i-.io
•Isywr mini seizure for tbe tion-paymerit of a
fielit 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 lorce to tire other V If one impairs the
obligation of the contract, the other does ; both
do, or Deitber does. II the Legislature may
exempt the body, and leave the property sub
ject, why may it not reverse the rule, and ex
empt the property and leave the body subject?
Whatever may ire said about, the humanity
of the age allowing the one and revolting at the
other, the lei/al reason is the same in both
cases, and the power of the Slate over the
remedy is the same. 1 have seen no successful
attempt by the abvocates of tho rule I am now
combating to draw a solid distinction between
the two eases, supported by logical or legal
reasons. 1 expect to see none, for the simple
reason that the legal distinction does not exist.
Bat what say the courts on this question?
The decisions are as unauimous as they are on
the question of the statutes of limitations.—
They hold that the law authorizing imprison
ment for debt is a law pertaining to the reme
dy, 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 their
obligation. - > ,
The case of Mason vs. Haile, decWed by tho
Supreme Court of the United Slates, reported
in 12 Wheat., 3ft), is a 6trong one. In that
case Haile was iu prison, having the benefit of
prison bounds, under'a final process against
the body, and was discharged bv a resolution
of the Legislature of Rhode Island, without
the payment of the debt; and the Supreme
Court hbld that this resolution did not impair
the obligation of the contract. The court
says : “This is a tue.isnre which must be regu
lated by the views of policy and expediency en
tertained by the State Legislatures. Such laws
act mainly upon the remedy, aud that in part
only. They do not take away the entire remedy,
I ait only so far as imprisonment forms a part of
such-remedy."
Mr, Justice Story, iu his commentaries on
the Constit.rltion, section 1381, says : “ Right#
may, indeed, exist, without any prawiitt, ade
quate, 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
tile future property ol tbe debtor.” Again. t jn
section 1385, he says : “ And a State Legisla
ture may discharge a party from imprisonment
upon a judgment in a civil case of contract,
without infringing the Constitution, for this-is
bnt a modification of the remedy, and does not
impair the obligation of tbe contract.’’
The same doctrine is held in tbe case of Stnr
ges vs. Crowuinshield, 4 Wheat., 200, where
Chiei Justice Marshall says: . “ The,distinction
between the obligation~rif a contract, and the
remedy given by the Legislature to enforce that
obligation, has been taken at the bar, and exists
in the nature ol things. Without impairing
Hre obligation of the contract, the remedy may
certainly b¥ modified as the wisdom of the na
tion shall direct.” In that case, the insolvent
law of New York, which discharged the de
fendant from imprisonment without the pay
ment 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 iu the decisions of the
Supreme Courts of the several States, sustain
ing the constitutionality of the stay laws, for
bidding the execution of process for the en
forcement 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 observa
tion, 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.peo
plq than in the Norlherti States, where the
losses by the war were leai ruinous, have set
aside stay laws as unconstuutional. in Penn
sylvania, the doctrine is Veil settled, that the
Legislature may pass a stay buy, prohibiting the
sale of property, or staying process for the en
forcement of contracts 'in existence, for a defi
nite aud reasonable time ; and it has Been ruled
that a stay of three years is not an unreasonable
period. This has been the rale 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 tecal statutes which sus
pend, for a reasonable lime, execution of a
judgment on a previons contract, are not pro
hibited by the Constitution of the United States,
and that the statute pissed by tbe Legislature
Os that State in 1842, suspending, for a year, a
sale under execution for less thau two-thirds of
the appraised value, is not unconstitutional.
That able jurist, Chief Jnstice Gibson, deliver
ing the opiniou of the court, says: " This case
differs from the Illinois statute held bY' tho-
Supreme Court of the Uuited States to be un
constitutional, in 2 How., 608, in this cardinal
- feature—that Us prohibition of execution was
perpetual , while (he duration of the stay, in
.was limited. In other words,
the one might entirely destroy the remedy,
while the other, as in the s»sc at the bar, only
postponed the period of its performance."
Tile same doctrine has been affirmed in’
Brietenback vs. Bush, 8 Wright’s Reps., 318;
Cox vs. Martin, ibid, 322; Drexel et. al. vs.
Miller, 13 Wright, 246; and Clark t>*. Martin,
13 Wright, 299. Tbe statute uuder which these
decisions were made authorized a Btay- which
might last for three years.
In Banmback vs. Bade, 9 Wisconsin Reps.,
559, the Snpreme Court of that -State fully sus
tains the constitutionality of a stay-law. The
same doctrine is ably sustained by the Supreme
Court of lowa, in McCormick vs. Busch—sec
Law Reg. for December, 1863. In this case the
learned Chief Jastlce, delivering the opinion,
says: tl We have found ho case which bolds
that laws, giving the right io a stay of exccu
: tjm npou certain terms, would' be invalid, a?
applied to prior contracts, unless It be certain
caaps in Kentucky, which seem to be based
upon cerium peculiar provisions in the
1 may remark, thnoy *''jssd-*nWP"jO
hOouj-W (rs some of anthem States had uotY
s*ii beeu^~ i ’'*X*’’rhese Southern decisions.
been unanimous, and with
i*{P®uceto the opinion of the majority
dIgRPNgVv'I must say, that the dissenting
been 'sustained by the weight ot
, JPW'Uffan'd the better reason. See the able
g”ff tl| SqF o pmionß of Judge Walker, of this
g<i of South Carolina, and
.Yppraside from the numerous decisions on
ttgPfcnhjqpt, aud the contradictory .positions
JtPrff she advocates of tbo doe-trine that the
laws ot the State, In existence at the
enter into, and become part of, the con
eyflct, art'driven to assume, the doctrine has no
pLundation in principle, and rests upon no
[sufficient reason.
There have been various definitions of the
obligffion of a con tract. Mr. Justice Baldwin,
in the case of McCracken vs. Hayward, says :
" The-obligation of a contract consists in.tho
power and efiedey of the 1 tw, which applies to
.’amTenforces performance of the jeontrs.ct or
ifhe payment of an equivalent for non-perform
ance.” Mr. Webster,, in . the argument of the
Mune case, defines it th be “the duty of per
formfiig: a legal agreement.” Whatever miay be
the cot lio -,r*c.uunn. (and upon this point
scarcely any two Judgwt YiETcwj, ttm Jpcxriilon
that the remedial laws of.the State, in existence
at the time, from part of it, is untenable.-
The remedial 1-tws of almost every State fix
a.tiipo within which debts may be collected by
sujt iff the courts. If these laws enter into the
Contract., Its obligation is impaired • by-an
change made In Hie lav? of the remedy. A en
ters into a contraet with 13, by which lie binds'
himself", to pay one thousand dollars by the
first day pf January next. - -
The presumption ol the law is, that . A will
two his promise, athj u fie doits so, the reme
dial .aws of the State Itave po connection wimt
ever with the contract. But sfippose the con
tract is broken by non-perlprmanre, the obli
gation still exists, and A is still under “ the
duty ot performing bis legal agreement,” and
B is enlitled to bis remedy to enforce perform
ance. v ßul wli it remedy V The particular one
afforded by the law of the State at the time the
contract was made, or the one afforded to suit
’«r« at the time the aid of the'eourts is sought V
Unquestionably the latter. II tlie,.loci{|w- sftb>
hi.l ritrhL.be Wohid.’fe tStSiSvTi’to it, iy» m tttcr
wjiere’iii tel ton tut brought. rjl.llic
•'minis# . re in»de Im Sfew Yorfe-.and ilr -.flit
-/as Veraft hi' »ji Wunie. i
that he the mle, lie entitled / 10 tinve Hvf-r T)U>.
dial laws oj' New York, which were in exist
ence at the time the contract was ru'adc, eu
irtrcpd in the eburts of Georgia, which is eon
racy Hi the practice and decisions of all the
cfuirfs.
Qr, suppose tli« suit is brought in the couris
■ ! Gqpvgia upon a contract made in Georgia
u yVnuitt, #ince. Than, the law allowed
parti*** trial, first by a petit jury, ayd Ml,<*t
party iTist-.tisfied was entitled to an appeal to a
special jury, on payment of cost and «.iviwg
7our cfays frorl?
Thehiew constitution ftholishes the appeal, and
allows but one jury trial, but gives the courts
the power to grant new trials ip proper cases.
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 5*
Again, the change made by the new consti
tution greatly accelerates the collection of debts
in. this State. Under the old law, the defend
ant 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 mast be tried
by the petit jury, and either party dissatisfied
might enter an appeal to a special jury. The
ease 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 shonld 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 ol
the jury, in all civil cases founded on contract
when an issuable defense is not filed on oath.
This not only cuts off the appeal from the petit
to the special jury, with alt its delay, but it
abolishes jury trial, in all civil cases founded on
contract, unless the defendant flics an issuable
plea under oath. This change greatly abridges
the right of defense 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
constitntion. 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, en
ters into, and becomes part of it; and, in that
case, any debtor would have aright to claim
that his cause bo tried under the old constitu
tion and laws, which are no longer in existence.
This would be contrary tq the practice .of the
courts, and the almost unbroken current of de
cisions.
After a contract lias been broken by the fail
ure of the debtor to pay at the lime agreed
upon, 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 Lite remedial laws
of the forum where he sues; which are no part
of the contract, and are the subject of change
by the LegishCture, 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 SSOO. The
Now York creditor may sue in either the
courts of the State, or of tn<. flniU'd States.—
In the one court, prior to the adoption of onr ■
new constitution, he could, in no' case, get
judgment before the second tdrm. In the
other conrt, if no issuable plea was filed, he
could get judgment at the first term. Here arc
two laws, each affording a remedy in the same
State, for the collection of the same debt.—
Now, il the law of the place in existence at the
time the contract was made, enters intOj and.
becomes a part of 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 ac
cordance 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 ol Georgia, that
the Superior Courts should sit but once a year,
instead of once in six mouths, 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 mouths longer than the time allowed by
law when they were rendered ; and would havo
delayed the rendition of judgment, in case of
contracts then in existence, tor 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 eases of
contracts made prior to the change? Unques
tionably not. Why not ? For the simple rea
son 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 the old constitution .the Supreme
Court was obliged to deliver its deciscions in
every case that cameAefore it, at the first term,
except for providential canse, and the creditor,
if the judgment were in his favor, had the
right toAhe benefit of the decision at the fir9t
term. The new constitution authorizes the
court, in its discretion, to withhold its decision
till the second term. This may delay the credit
or six months in making collection, but it will
not probably be contended that the Supreme
Conrt violates the obligation of contracts made
prior to the new constitution, by holding up
its decision till the second term.
I might multipfy illustrations and authori
ties to prove that the law of the remedy, in
existence SCthe time, is no part of the contract,
but I deem it unnecessary. Those already pro
duced are, to my mind, sufficient to show that
the dicta of Mr. Justice Baldwin, in the case re
ferred to, are not law, and are unreconcilable
with the current of the decision 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.
4v Whether tire 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 toot the province of the
courts to prescribe the rules of evidence by
which they will be governed in the investiga
tion of causes. That power belongs to the
legislative department of the government. The
Legislature may establish new rules of evidence
in derogation of common law, bnt the judicial
power is limited to the rule laid down. Smith
v*. the United States, 5 Pet., 392. 85 Ga. R.,26.
5. It is no good objection to the constitution
ality of this act, that it authorizes the jury to
adjust the equities between the parties, and to
roduce the amount ot the dchi
for, according- ter the equities if eaelfpSe. Thl*'
Is done every day In bur courts iu cases where
the defendant feels up a partial failure of con
sideratiou, fraud, mistake, and the like. In
deed, it is one of the objects of trial by jury to
hear nil the facts pertinent to the issue, and
, tu*Jk to the face tot each written
contra "fr'lfY the real equities be
Me partiesareSSW^ 11 '
according to those
of the rigid rules Os the commoniSw, this can-
not be done, the Court of Chancery is ever
ready to aid the courts of law In the accom
plishment of this great aim of all enlightened
jurisprudence.. The new constitution gives
the General Assembly power to uiergo 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 Hie forum where the litigation may
be commenced. And the Legislature is not
confined in its enactments to the old law ol
remedies, as it, existed’in any particular coun
try or age. The science of jurisprudence, as
well as alt others; is progressive, and ilie rules
governing the courts in the administration of
the law ol rights and remedies, are varied
and changed, as the civilization and enlight
enment of the age, and the changing neces
sities of society may require. This is illustrat
ed by the endless variety ol rules and forms in
the different States ot the Union, all acting un
der the same Constitution ot the United Slates,
which it is claimed this change violates. The
rules of evidence by which the courts and
juries are governed, in decidin£~upon the
equities between the parties litigant, are ever
changing in each of this large family of States.
Probably no two arc alike. The Constitution
of the United States does not require thatt&ey
shall be. In Borne 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 ids interest, except in certain caseß
mentioned in the statute. The Change was
made in this State within the last few years. Jt
was as much at variance with the old rules of
evidence known to Hie courts and the profes
sion as is the act now under consideration.
B.ut the courts have upheld it, and the Supreme
Court of the United States, in the case ot a sis
ter State, has held that this State Jaw, making,
this radical change in the rules ol evidence,
binds the courts of tire United States sitting in
Micji States as have made the change. 1 HI.,
01-', Ibid 48V. And just here, let me inquire
how this decision can lie sustained, if the re
nledial laws of; the State, which necessarily in-
Chide the law of evidence, enter Into and bc
\OpiyVH of the contract, and ciuinot.be chang
ed without impairing its obligation.
.'Bet 1 iU>not consider this an open question
Hi tips court, since the numerous decisions
mailer by sustaining ilm ordinance of the cou-
vemibn ut ISlifi, by which it is ordainecU That
■ rtf! you '-wj.i; made between the first of June,
iSftl, -nut the first, of June, 1805, whether ex
pressed, in writing Or implied, or cxi ting in
paroti/inA »ipt yet executed, shall receive an
eqnitydiitgpnt traction, and either 'iu any
euft fttrfle deforcement of any such contract
tniUi upoij the trial, give in evidence the consul
cratod -mis the balue thereof at any lime, an A the
intention of the parties asko the particular cur
rency in which payment was to be made, and
the valtic of such currency at any lime, and the
fcatipA akaiUta. m
I am aware that those who attempt to draw a
distinction iu principle between that ordinance
and this statute, allege that it was passed to ad
just the equities and do justice between the par
ties to contracts made during the war, most of
which were made with reference to Confederate
treasury notes, and were intended to he paid in
that currency ; and further, that the true object
of that ordinance was only topermitnn inquiry
in court as to the meaning of the word “‘dol
lar ” when used in such contracts. But an ex
amination of the language of-the ordinance at
once shows that it has no such limited import.
It is not confined to contracts made with refer
ence to Confederate treasury notes, or intended
to be paid in such notes. It expressly em
braces all contracts made within the period men
tioned, and lets in the evidence, on the trial, of
each and every oue of them, no matter what
may have been the intention of the parties, the
currency in view, or the consideration ; and it
authorizes the jury to adjust the equities be
tween 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 Die period covered by it,
is equally unfounded. The ordinance author
ized either thirty to give in evidence the con
sideration and the value thereof at any time.
Suppose the consideration of the note in suit,
dated in 1861, to he 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 infereifee
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 in
creased or decreased ten fold in value ? What
more relevancy does such evidence have to the
issue, ttiau the evidence authorized liy the
statute now under consideration ?
Again, the ordinance authorizes the parties
to give in evidence the particular currency in
which payment was to he made; aud the value
of such currency at any time. Suppose the
contract was made on the Ist 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 Ist January, 1863, in that
currency, which, at the date when due, was
worth in gold, eighty cents on the dollar.—
Now, I ask, how evidence as to the value of
Confederate treasury notes on the Ist day of
Mafy, 1865, when *1,300 of those notes were
worth but *1 in gold, tends to illustrate the is
•»ue, as to the due sense in which he parties
used the 'ww« doii» » it cannot be denied
that the evidence, in the case supp~,«d, would
be admissible, under the rulings of this court,
which have repeatedly sustained the constitu
tionality of the ordinance. But it would bo ad
missible, not so much to show the sense in
which the parties used the word “dollar,” as
to place all the facts and circumstances con
' nected with the whole transaction before the
jury, to enable them to “adjust the equities
between the parties.”
In Hudspeth vs. Johnson, 84 Ga. R., 405, that
great and good mhn, Chief Justice Lumpkin,
says: “-Wc know full well, that the letter of
that ordinance only applies to contracts , 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 $ Cos. 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 consider
ation lor which the note was given, how much
ought to be deducted from the amount of said
note, by the nnsoundness of the tobacco for
which the note was given, what is the usage ot
trade in the community where the parties
resided, as it respects settlements between mer
chants, 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 ver
dict accordingly.”
He then relers to the statute 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 : “ 1 will not
undertake to say that this legislation was not
just at the time ; hut that it would be a proper
standard now, it requires no degree of experi
ence in business to satisfy any one to the con
trary. Our convention has acted |more wisely
under the circumstances, past and present, by
which they were surrounded.
Walker, Judge, says, iu Cothran et al. vs. Scan
lon, 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 lor mves
t'*ln the case ol Slaughter et. al- vs. Culpeppir
VOL. 26— SO.
et. al., 35 Ga. R. 27, Judge Harris
the opinion of the court, holds the wdinance
constitutional. He says: “I cannott.mik thifl
clause of the ordinance obnoxious to the
tion. It does too more, really, than change a
rule regulating the admission of testiniony tn
the courts of taw; it removes the
created by technical rules to a full inquiry lot
and investigation of, executory contract#, made
within the periods of time mentioned. Itw ap
prehended, that to have done this was within
the competency of the legislative power at uy
time, Who is prepared to de*y thatthe
latnre may not, at its discretion, alter and anaend
old roles of evidence and establish new Y wn ,
that it may not obliterate all distinctions which
now characterize modes of procedure
of law and courts of equity a " d „? 0l!n ? ll ®”t-A,- 1
they so enact that the broad and liberal prwci
pics upon which justice is administered o*tb
equity side of the Superior Court, shall «PP I
to and control the verdicts Os juries pn its 1
side?” .
Tbo validity <?f the ordlWMftce was again*!
tamed in ttvetob'&t.-'-
After laying down the rule that the -l.i _ _JI
tries each case Should give tbe tyMe
in charge to the jury, Chief Justice
says: “Wc certainly think- OiMtthu.-votfm
lion intended to give to the jury H
ordinary discretion delegated
of the onTh-aneS mTuylor vs. I?kpywr
124, and susttilieU, & q execute®** V
lowing cases: Elder wL-ngtet***
Cherry vs. Walker, 36 On, •wSPA ? Atr "
vs. Coleman et. al., 36 Ga.fß., a city :
In tins ease, Jndge Warn<!T; lrfiintre and
rule that the court should nffow tluq-ont
liberal discretion under the ordinance.
No one can draw a solid distinction M j _
pie between the ordinance Os 1865 aver 1
statute ot 1868. If one is constitutional t.
Other is also. Both change the old rule of evt
dence, and let in evidence heretofore consider
ed by the courts irrelevant and improper. Tha
object is the same in both cases, to reduce tho
debt " mmu! for," in accordance with the real
equities cxistiirp; between the parties, and not
to allow a recovery ittuording to the f»oc of the
contract, uulcss the equities of the case juslUy.
it. And I apprehend neither of tm- tour learn
ed Judges above named, in sustaining the con
stitutionality of the ordinance,, felt lor a mo
ment that he was u embalming himself in his.
own infamy upon the records ot this court as %
debauched ,) u ilicial officer.” .
I am aware that an attempt was made in this
court, at -the hearing to draw a distinction,
growing but of tbs power given by t.ho statute
to the jury, to reduce tbc debt. But a mo
ment’s examination will show that none in fact
exist. The statute euacts that “in all 6iich.
eases, the jilrics 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 tueaiiingjof this ? That the
jury shall hear all the'evidence necessary to
place them in possession of all the lab Is and
circumstances connected with the contracts,
and the relations and Hie condition of Jhe par
ties,and shall find the'iv verdict according to
the real equities existing between them ; or, in
other words, after examining the whole ease,
in the light of all the surrounding- circum
stances, they are to render such verdict as la
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 andagraut anew trial, because the verdict,
is. unjust and inequitable. This is the full
measure of the power aßd discretion jyiveu tOr
the jury by the statute. * And this fa, what the
juries have long had the power to -dO, under
Buell rules of evidence as -existed at the time,
and "have done, iu a thousand cases where tha
defence' of .fraud, accident, mistake,, iihaue In*
fluouce.ulnress, total or partial failure of con
sideration, have been srt tip. In all such eases,
they find snob verdict, under the evidence
submitted to tbcih, as seem to them just
and equitable. The oath administered to every
special jury in Georgia, from 1799 to r' r >3, re
quired this. They were sworn wall and truly
to try each cause submitted to them, and a trua
verdict give, (not according to the rules of law
in force when the coptract was made. tndJ.
Cording to equity and the opinion
your skill and knowledge,
affection to either party.”
ford’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 ot evidence to govern in
ease of contracts made between June, 1861, and,
June, 1865, the ordinance declares that the ver
dict and judgment rendered shall be on princi
ples of equity. And the. caption, or title, de
clares it to be an ordinance “ to authorize tbo
courts of this State to adjust the equities be
tween parties to contracts made, but not exe
cuted.” What does this mean Y Simply that
the jury, alter hearing ail the evidence author
ized by the ordinance, shall adjust the equities
betweeu the parlies, fu other words, they
shall find “ such verdict as to them shall ap
pearpisf and equitable." And this rale applies
with equal force to all verdicts, whether ren
dered under the ordinance or under the statute.
I need iu considering this branch
of the case, no honest man has auy good rea
son to'complain, when the verdict rendered in
his case gives him all, to which in justice,
equity and good conscience, he is entitled.
6. But if the jury should seize upon the dis
cretion given by the statute, as a pretext lor
the exercise of an unjust and. arbitrary caprice,
and to dispense that equity between the parties
which grows ont of all the facts and surround
ing circumstances of each case, it-will be the
duty of the courts to exercise their undoubted
power, and set aside such unjnst verdicts,
whether rendered in favor of plaintiffs or de
fendants.
7. In this casc.no complaint can bo made at
the finding of the jury, as there was uo verdict.
The defendants filed pleas which were intend
ed to lay the foundation for the introduction of
the evidence authorized by the statute, and the
court sustained the plaintiff’s demurrer to the
pleas, and ordered them stricken from the re
cord. A majority of this court are of opinion
that this ruling of the conrt below was' erro
neous. We are unable to see how the obliga
tion of the contract was in any degree impaired
by the filing of these pleas.
8. When a statute authorizes certain facts to
bo given in evidence to the jury, which, under
the old law, were excluded, and the defendant,
so shapes his picas as to lay the proper founda
tion for the introduction of the evidence au
thorized by the statute, such pleas arc not had
on demurrer, because not authorized by the
old rules of pleading. If a statute gives anew
defense, or authorizes the introduction of evi
dence not previously admissible, the defendant
may so shape hie 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 ma
jority of the court, conscious of the rectitude
of their own motives, feci it due to themselves,
in. closing this opinion, to remark that they
will not iicfioond from their proper position on
the bench to engage in controversy with the
dissenting Judge; nor will they inquire into
the incentive which have prompted the unjust
and insidious assault made upon them. Ex
traordinary and unprecedented as the attack
has been, the proprietors of the occasion, qua
the dignity of the court, alike forbid a reply. *
After a carelul examination of the ao.Vhori
.tics, we arc satisfied that the judgment of the
conrt below is erroneous, and ought to be re
versed.
McOay, J., concurring, announced his views
by the head notes, whieh appear under his
name, but he wrote uo opiuion in the case.
Furniture, Furniture,
AND
WINDOW SHADES.
-A. LARGE and full stock of New Styles of
FURNITURE and SHADES, for sale cheap. (Jail
nd ox amine at
nov2o-tf PLATT BROTHERS.
PETEK BRENNER,
PIANO MAKER and
Agent for the sale of
- - |r PIANOS
Manufactured by CHICKERING & SONS,
GEORGE STECK & CO., WM. KNABE &
CO., and others.
ALSO,
Parlor aml ♦Church ORGANS, and dealer iu all
kinds of Musical Instruments, Strings, &c., 322
Broad street, opposite Planters’ Hotel, August
ta, Ga. 1 my29-ly