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About Tri-weekly constitutionalist. (Augusta, Ga.) 18??-1877 | View Entire Issue (July 25, 1869)
BY STOCKTON & CO T'errns ot Subscrrotion Daily, ftnc year $lO 00 ** 6 months 5 00 •* 3 months 2 60 Tri-WeetGy, <>ue year 7 00 “ 6 mouths 360 “ 3 mouths 800 Weekly one year 3 00 ** 6 months 150 Rates of Advertising IN TAB U O NST LTIJ I’ION AIRIS'! From February I, 1867. i ijST! oo" r&0 $ S 00 13 M 17 00 “iolT 2S 5G 2oCC S f 99 3 00 11 00 13 00 S2 00- 58 00 32 60 31 00 i -41 50 3 I 60 11 00 14 00 17 00 28 00 36 50 42 O' 4? 00 63 50 4 5 00 ’.4 00 17 CO 20 0C fe 00 43 00 50 00 57 00 68 60 t if 6* 16 30 20 00 23 00 33 00 60 00 6s 00 86 00 73 50 <8 U 0 IS 00 23 00 26 00 43 00 56 *0 65 00 74 09 33* 00 7 #2 5 80 00 25 00- 26 00 48 00 62 50 72 00 S2 :ji 92 00 • 8 'l4 O’- 22 or- 2-* 00 32 <#> 53 00 66 00 30 00 51 00 100 <0 3 15 60 24 00 80 00 35 00 5s 00 j 75 00 37 00. 9S 00 105 no 10 i 17 00 26 00 32 00 37 00 61 60 I 80 00 fa 00 104 00 j 115 90 if Co'- 1 22 60 32 60 ♦;L4a007600 j 57 00 U 260 127 60 j 149 90 1 Cos!. 36 00 60 90 ! 90 00 70 00 116 GO I loii SO 172 50 i 192 6 . 210 00 One square, 1 innniu->ii, 76 o-iilh; each additions nsertion, nnJ..r 1 week, 60rents. 26 per rent. >t l-litn>ual (or ndvortlHemeali. kept o. he lueiitu. 26 pei cent. ad litimntl In Hperlul Column, 25 pcreenr.. ud Ifi.iniial f..r Double Column Harrier :ui.l Funeral Nolines, sl. i lltltuiu-los, 20 cents per line. (iormnnnicnti'ins, 20 rente per lino. Tri-Weekly or Daily c. o. <l. for one month or tougoi; tern-thirds above rates. • In Weekly for one month or longer, one-hall the r »b-« for Daily. In Daily, Trl-Weekly am) Weekly, double tho ilally rates. • ' Advertisements contlone.l for one year will be sharped two-thirds the above rates for the last sit months. It will ire perceived b the foregoing that wo have minced the rales of advertising Oftoen to twauty per cent., to take effect on this day. Single Papers, 6 cents; to news hoys, 2lf cents. Tuning—Cash 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
