EXEMPTED FROM EXECUTION. 709 and we have no judicial authority to interpolate any. Our duty is simply to execute it." 1 In Seibert v. Lewis,2 the question grew, as in Antoni v. Greenhow, out of the substitution of an inferior remedy, which, if susceptible of being used efficiently, was yet clogged with conditions tending to hinder and delay the creditor; 1 "It is the established law of North Carolina that stay-laws are void because they are in conflict with the national Constitution. Jacobs v. Smallwood, 63 N. C. 112; Jones v. Crittenden, 1 Law Repos. N. C. 385; Barnes v. Barnes et al., 8 Jones (N. C. Law), 366. This ruling is clearly correct. Such laws change a term of the contract by postponing the time of payment. This impairs its obligation, by making it less valuable to the creditor. But it does this solely by operating on the remedy. The contract is not otherwise touched by the offending law. Let us suppose a case. A party recovers two judgments, one against A, the other against B, each for the sum of $1,500 upon a promissory note. Each debtor has property worth the amount of the judgment, and no more. The legislature thereafter passes a law declaring that all past and future judgments shall be collected in four equal annual instalments.' At the same time another law is passed, which exempts from execution the debtor's property to the amount of $1,500. The court holds the former law void, and the latter valid. Is not such a result a legal solecism? Can the two judgments be reconciled? One law postpones the remedy, the other destroys it, except in the contingency that the debtor shall acquire more property, - a thing that may not occur, and that cannot occur if he die before the acquisition is made. Both laws involve the same principle and rest on the same basis. They must stand or fall together. The concession that the former is invalid cuts away the foundation from under the latter. If a State may stay the remedy for one fixed period, however short, it may for another, however long. And if it may exempt property to the amount here in question, it may do so to any amount. This, as regards the mode of impairment we are considering, would annul the inhibition of the Constitution, and set at nought the salutary restriction it was intended to impose.' Edwards v. Kearzey, 96 U. S. 601, 604. It seems proper to add that in this as in nearly all the instances where stay and exemption laws have been held invalid, the debtor was not merely indulged at the expense of the creditor, but to an extent which manifestly impaired the obligation; and the question whether such favors may be constitutional when reasonable in extent and dictated by policy and humanity may, notwithstanding the language held in Edwards v. Kearzey, be considered as still open in the court of last resort. (See Black on Constitutional Prohibitions, section 166.) 2122 U. S. 284. 710 AN INJURIOUS CHANGE IN THE and the court reverted to the doctrine of Edwards v. Kearzey, "that the remedy subsisting in the State when and where the contract is made and is to be performed, is a part of its obligation, and any subsequent law of the State which so affects that remedy as substantially to impair and lessen the value of the contract, is forbidden by the Constitution, and is therefore void." The Missouri legislature, to facilitate the construction of railroads, enacted that the County Court should levy a special tax, in order to pay any bond which might be issued by a municipal corporation on account of a subscription to the stock of a railroad company. A subsequent statute provided that no such tax should be levied unless the Missouri Circuit Court was satisfied that it was necessary and would not be in conflict with the Constitution and laws of the State. No such action was taken in the State courts, and the Circuit Court of the United States issued a peremptory mandamus commanding the County Court to levy a tax in accordance with the law as it originally stood, to pay bonds which had been executed before the change. The tax-collector having been enjoined by the State courts not to collect the tax, and commanded by the United States Circuit Court to proceed, the cause was brought by a writ of error before the court of last resort at Washington. It might seemingly have been held under these circumstances, with as much reason as in Antoni v. Greenhow, that if a circuitous way had been substituted for the direct path which lay open to the creditor when the contract was made, both would lead to the same result. The State courts would presumably do their duty in levying the tax; if they did not, there would be time enough for the federal courts to intervene. But the Supreme Court of the United States decided that whatever legislation lessens the means by which the obligation can be enforced, impairs it. "If it tends to postpone or retard the enforcement of the contract, the obligation of the latter is to that extent weakened. The contract in the case under consideration was not only that the creditor 1 See The State v. County Court, Cape Girardeau Co., 8 Western Reporter, 626. REMEDY IMPAIRS THE CONTRACT. 711 should have as good a remedy as that provided by the contract when made, but that his remedy should be by means of a tax, in reference to which the levy and collection should be as efficacious as the State provided for the benefit of its counties, without any discrimination against him. In this vital point the obligation was impaired by the law under which the collector thought to justify his disobedience to the mandate of the Circuit Court." It is difficult to see that there was not as much room in this case as in Antoni v. Greenhow for the reasonable doubt which is said to render it the duty of the court to acquiesce in the conclusion reached by the legislature. Whatever the rule may be under other circumstances, it is clear that when the creditor has acquired a lien by obtaining a judgment which binds the debtor's real estate, or by issuing a fi. fa. and levying on his personal property, a statute which devests the lien will not be less unconstitutional because the creditor may still issue another writ and take the goods at the risk of being postponed to intervening levies. Swayne, J., said: "The act withdraws the land from the lien of the judgment, and thus destroys a vested right of property which the creditor had acquired in the pursuit of the remedy to which he was entitled by the law as it stood when the judgment was recovered. It is, in effect, taking one person's property and giving it to another without compensation. This is contrary to reason and justice, and to the fundamental principles of the social compact."1 This decision seems to be nearer to the intent of the Constitution than Watson v. The New York Central R. R. Co.,2 where the lien of a judgment was declared to be subject to the control of the legislature, which might shorten or prolong its duration retroactively, or abrogate it altogether. And it was held to follow that land might be taken for public use, and compensation made to the owner, without notice to his judgment-creditors. The lien of a judgment may no doubt be abridged retroactively; but there must, as in the 1 Gunn v. Barry, 15 Wallace, 610. See Calder v. Bull, 3 Dallas, 388. 2 47 N. Y. 157. 712 INCHOATE LIEN MAY BE ABROGATED. case of other statutes of limitation, be a sufficient time left to enforce the right before the bar goes into operation. The inchoate lien resulting from the service of an attachment or the filing of a mechanic's claim, stands on a different footing, at all events so far as it affects the rights of third persons who are not parties to the contract under which the work was done or the demand or debt arose. In this instance an act approved April 28, 1840, declared that the lien arising under the act of June 16, 1836, for work done or materials furnished for the erection of a building, should not be construed to extend to any other or greater estate than that of the persons in possession at the time of commencing the said building, or at whose instance the same was built. The effect was to overrule the view previously taken by the judges, that a tenant for life or years, or, as it would seem, an entire stranger to the title, might bind the freehold without the knowledge or consent of the owner or reversioner. Declaratory statutes cannot ordinarily retroact consistently with our organic laws; but the court held that the legislature might well repeal a statutory remedy which enabled a man to dispose of another's land for the payment of a debt contracted without the owner's participation, and of which he might be ignorant, until it was too late to defend the suit. The explanation seems to be that the act could not impair the obligation of a contract, because none existed between the mechanic who filed, and the owner whose land was affected by the lien. A contract will not be impaired by a law obviating a technical defence or giving a more effectual means of enforcing its fulfilment.2 In Taggart v. McGinn a statute authorizing a recovery for rent reserved in covenant against the lessee and his assigns, whether the lease was by deed-poll, or indenture, and although he did not sign or seal, was held to be retroactively valid by virtue of this principle. So in McElrath v. The Railway Co., Agnew, C.-J., observed that 1 Evans v. Montgomery, 4 W. & S. 218. 2 Bleakney v. The Farmers' Bank, 17 S. & R. 64; Taggart v. McGinn, 14 Pa. 155; McElrath v. The Railway Co., 55 Id. 189. LAWS AFFECTING THE MEANS OF PROOF. 713 one who is in default has no right to complain that the legislature have given an additional remedy for his breach of contract, and an order of sale was made in favor of the mortgagees of a railway under a power conferred by a statute which had been enacted subsequently to the execution of the mortgage, although it contained a clause authorizing them to enter and take the tolls if default were made in payment. The obligation of contracts may also be impaired by denying the means of proof. The evidence, like the remedy, belongs to the law of the forum, and the States may regulate both; but their power must be exercised in subordination to the Constitution of the United States, and an enactment that the deed by which land has been conveyed shall be inadmissible on behalf of the grantee, will be as invalid as a statute vacating the grant; and so of a statute of frauds applying to contracts which were not required to be in writing when made. An act throwing a grant, which was previously indisputable, open to disproof, may fall in the same category; and where a deed executed by the sheriff, and conveying land that has been sold for taxes, was, agreeably to the existing law, conclusive that all the statutory requisites had been observed, the court held that it could not be reduced legislatively to the level of prima facie evidence.3 Acts which retrospectively enlarge the means of proof by rendering certified copies admissible in evidence, or curing the defective. acknowledgment of a deed, are not liable to this objection, because the effect is not to impair the obligation of the grant or contract, but to facilitate the remedies by which it may be enforced.4 Statutes of limitation are for the greater part rules of evidence providing, in favor of the repose and safety of society, that a certain lapse of time shall give rise to an adverse pre 1 Jackson v. Lampshire, 3 Peters, 290. 2 Von Hoffman v. The City of Quincy, 4 Wallace, 538; Edwards v. Kearzey, 96 U. S. 600. See ante, p. 678. • Smith v. Cleveland, 17 Wis. 526. See Foster v. Gray, 22 Pa. 9; Sherwood v. Adler, 3 Wharton, 431. |