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Subject Area: Law
Topic: The American Revolution and Constitution

§ 178.: Regulation of contracts and rights of action.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 2 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 2.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

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Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


§ 178.

Regulation of contracts and rights of action.—

The validity of an ordinary contract cannot be impaired by State legislation, for it is protected from such an attack by an express provision of the Federal constitution.1 Any law, therefore, which changes the character of the obligation, either by diminishing or increasing its burden, is void because it impairs the obligation.2 The obligation of the contract, which is thus protected from impairment, is civil and not moral; that is, the contract must be legal, according to the provisions of the law in force when the contract was made, in order that it may claim this protection. An illegal contract creates or supports no rights, in short has no legal existence.3 It will not be necessary to explain in this place how far laws may be enacted for the regulation of subsequent contracts, for this matter has been fully discussed in another connection.1 Nor is it necessary or appropriate to explain here in detail what is included under the term “contract,” in the sense in which the word is used in the constitutional provision referred to.2 The term contract is here employed in the sense of “executory contract,” an agreement between two or more, for a valuable consideration, to do or give something.

This means that there must be words of positive contract, so that a clear and positive obligation has been made; and that obligation must have been supported by some valuable consideration. Thus, for example, if a statute, which in one section declares that the revenues of a city “shall” be devoted to the liquidation of obligations for current expenditures, provides in another section that the surplus revenues “may” be applied to the payment of indebtedness of former years; the latter provision, in which the permissive “may” was employed, did not create any binding obligation, which may not be impaired by a subsequent repeal of the statute.3 And, in illustration of the necessity of a valuable and substantial consideration, in order that a contract may be protected by the constitutional provision against the impairment of the obligation of a contract, the following case may be consulted. It holds that the acceptance of a gratuitous trust does not constitute such a contract, as that it would in a constitutional sense be an impairment by a statute, subsequently enacted, which provided for the allowance to such a trustee of compensation.1

Two recent cases from the Supreme Court of the United States may be referred to in illustration of the retrospective and prospective operation of a statute, which is held to impair the obligation of a contract. In one case,2 the facts were these: A Texas statute of 1854 made grants of land to certain railroads. Subsequently, the charter of a certain railroad was amended, so that the privileges of the act of 1854 may be accorded to it, provided the railroad in question was confined to a prescribed route. This road was sold under foreclosure of mortgage, and transferred to a new company, which had been incorporated to operate the road. By the act of July 27th, 1870, this new company was authorized to abandon the old route of the road and to construct a new roadbed. The Constitution of 1869, however, prohibited the grant of public lands to any railroad. It was held that the constitutional prohibition applied to the new road, and avoided any grant to it of public lands; while it did not affect any of its rights derived from the contract of the State with the old company. In a subsequent case3 under a similar grant in 1866 of public lands to the railroad in question as a part of the charter contract, the railroad had not completed their entire authorized line, and had not acquired the title to all the land to which it was entitled under the land grant act, when the constitution of 1869 went into operation. The court held that the constitutional prohibition could not apply to that part of the land grants to that railroad which were still incomplete without impairing the charter contract. Any such application of the constitutional prohibition was void and of no effect.

The constitutional provision against impairing the obligation of contracts is held to be binding only upon the States. But there can be no doubt that similar action by Congress would likewise be unconstitutional, because it would deprive one of his property without due process of law.1

Very little difficulty is ever experienced in determining when and to what extent an enactment impairs the substantive rights of parties to an existing contract; and when such an impairment of the obligation of a contract comes within the constitutional inhibition. The rule is very plain that no impairment of the substantive rights under a contract is permissible by subsequent legislation. A few examples, drawn from recent adjudications, will amply illustrate this portion of the subject.

Where a city and a railroad enter into a contract that the expense of maintaining and repairing a viaduct shall be divided between them, with no limitation as to the amount of the aggregate expenditure for that purpose, the State, in the exercise of its ordinary police power, reserves to itself the power to determine the amount that must be expended in the maintenance and repair of the viaduct; and may increase the burden to the company far beyond the expectations of the company, without violating the constitutional provisions as to the inviolability of contracts.2 So, also, inasmuch as the right of inheritance of property from a decedent rests absolutely upon a legislative fiat, and is not supported by any principle of absolute or natural right,3 it has been held, and rightly held, that a statute, which provides for escheat, after personal notice to all known claimants, and notice by publication to all unknown claimants, is not unconstitutional as an impairment of the obligation of a contract.4 The well-known case of the Charles River Bridge v. Warren River Bridge,1 may likewise be cited in this connection. In that case, the facts were these: The Charles River Bridge Company had been authorized to establish a bridge across the Charles river, and to charge toll for its use by the public. Subsequently the legislature of Massachusetts authorized the construction of a second and parallel bridge, known as the Warren River Bridge. The construction of the second bridge impaired the value of the first bridge franchise by the serious diminution of its profits, and ultimately destroyed its value; inasmuch as the second bridge was to be opened to the public free of charge, some time before the expiration of the franchise of the earlier bridge. The Supreme Court of the United States held that the charter rights of the Charles River Bridge Company had not been impaired in the constitutional sense by the grant of franchise to a competing bridge company; on the ground, that no grant of a public franchise, like that of a bridge, will be presumed to be an exclusive monopoly, in the absence of an express legislative declaration to that effect; and that the incidental injury, proceeding from the grant of a second competing franchise, does not constitute an impairment of the obligation of the charter contract with the earlier bridge company.

But contracts with public corporations, like a city or county, no less than contracts with private parties, are protected by the constitutional inhibition of laws impairing the obligation of contracts. For example, laws which impose upon cities and towns a limitation of their power to contract debts, or which direct the observance of certain requirements in order to incur a legal liability, can never have a retrospective effect, so as to affect the validity of antecedent debts which have been incurred in full compliance with the then existing law. Thus, a constitutional provision, which limits the lawful indebtedness of a city or town to ten per cent of the assessed valuation of the real estate within its limits, cannot be applied, so as to invalidate contracts with the city or town which were made prior to the adoption of this constitutional provision. The fact, that it was a constitutional amendment instead of an ordinary statutory enactment, made it no less an unlawful violation of contractual rights.1 And so, likewise, a law is unconstitutional which requires that a vote of the taxpayers shall determine whether the debts of an old municipal corporation shall be assumed by its successor, which is provided for by a general reincorporation of cities and towns. Such a law impairs the obligation of an existent contract which would be enforced against the succeeding municipality, without any vote or other approval or assumption of the debt.2 On the other hand, it has been held that where an existent county is divided into two new counties, there is no impairment of the obligation of contract, if the existing county debt is proportionally divided between the two new counties.3

Where a city enters into an agreement with a contractor for the construction of sewers in certain named streets the contract cannot be subsequently annulled by ordinances, even though the ordinance of abrogation be passed before any of the work be done.4 So, also, is it unconstitutional to make the repeal of an existing law, under which claims for damages to property arising from the opening of new streets were to be adjusted, apply to pending suits which have been carried so far to completion as to have secured an appraisal and judicial approval of it.1 So, also, is it not permissible to change by subsequent legislation the order previously prescribed, in which warrants should be paid by the city treasurer out of the funds of the city. Such a statutory change would constitute an unlawful impairment of the obligation of the contract of the city, which is evidenced by the warrant.2

Contracts, creating liabilities on the part of private individuals to public or municipal corporations, are equally protected from impairment by subsequent legislation. A State law, which releases a State officer and his sureties on his official bond from liability to a township, is unconstitutional and void.3

Another important phase of the protection of contracts from impairment by subsequent legislation, is found in the application of the constitutional principle to the effect of judicial construction of the validity of a contract. It has thus been held that, where a State Supreme Court has declared a statute to be valid, which determined the validity of certain series of contracts, and parties have entered into these contracts in reliance upon the decision, so rendered in favor of their validity, there would be an unconstitutional impairment of the obligation of a contract for the court to reverse its decision in respect to the validity of the statute, and in consequence to declare invalid any contract of the series, which they had sustained in their earlier decision. But the rule of stare decisis would not thus control the decision of the court in respect to the validity of another similar but different statute.4 But it is only the decision of the court of last resort of a State, which will have the effect of estopping the State from subsequently questioning the validity of bonds and other contracts, which have been made, in reliance upon the decision. The favorable decision of a nisi prius, or of an intermediate appellate court, will not have the effect of making the contracts and debts secure against a reversal of the judgment in a subsequent case.1

Inasmuch as the law prohibits the individual from redressing his own wrong, he is entitled to an appropriate action in the law courts of the country. A denial of this right of action would be as much an interference with the right that has been violated, as the original trespass was. If the violated right is a broken contract, an absolute refusal of all remedy would impair the obligation of a contract in a constitutional sense, and the law taking away all remedies would be void.2 For a like reason, a law, which would take away all remedies for the violations of other rights, whether of persons or of property, would appear to violate the legal sanctity of the substantive right. If it be a right of property that has been transgressed, the deprivation of the right of action would be an interference with vested rights; and so also would it be an infringement of one’s personal security, if a right of action was denied for a trespass upon one’s person or liberty. But it has been held by the United States Supreme Court that a constitutional convention of a State may take away existing rights of action, provided the obligation of a contract is not impaired, or a punishment inflicted.3 There is certainly no express provision of the constitution which protects these rights of action from interference by legislation; but it would seem to us that the constitution protects from undue interference the right to resort to the courts for redress of one’s wrongs, as much as it does the right to pursue a harmless occupation. They are equally essential to the pursuit of happiness. It would be an act of tyranny for a government to deny the right to redress one’s own wrongs, and at the same time to refuse an appropriate remedy. It is probable that the Supreme Court would have decided differently, if the constitutional provision under consideration had had reference to other rights of action than those growing out of the conflict of war.

The cases are very few in which even an apparent denial of all remedy would be permitted to apply to existing contracts. Where, however, no right to a remedy can be claimed, independently of an express statutory authorization, as in the case of a claim against a State government, it has been held by the Supreme Court of the United States that a law, repealing a statute which provided for the adjudication and auditing by the courts of claims against the State, did not constitute, when applied to existing claims, any constitutional impairment of the obligation of the contract. And, even when this conclusion has been reached by the State courts, through an erroneous construction of the operation of the supposedly repealing statute, the Federal courts will not interfere to correct the error.1

On the other hand, it has been held that there is no violation of the vested rights of a defendant, if a statute, providing for the survival of causes of action for personal injuries, which otherwise abated at the death of the plaintiff, is made to apply to all existing causes of action of that kind, whether suit has been or may hereafter be brought.1

The right of appeal to a higher court is never considered so essential a part of the remedy that it may not be granted, taken away or enlarged, without impairing the substantial rights of parties to a contract. These changes in the right of appeal may be made at the discretion of the legislature. The citizen has no vested right in an existing right of appeal.2 It is also permissible for a legislature, without impairing the obligation of a contract, to grant the right of appeal to cases which involve a given amount in value and over, and to deny the right in cases, in which the amount involved falls below the stated limit.3 On the other hand, there is no impairment of the obligation of a contract, if a statute, granting the right of appeal where none existed, or extending an existing right of appeal, is made to apply to an existing contract or cause of action.4

As long as a substantial remedy is provided, the character of it may be changed at the pleasure of the legislature; and when it applies to the enforcement of a contract, such a change, however material, will not be considered to impair the obligation of a contract, even though the change is to a less desirable or convenient remedy.5 The most radical changes are permissible, as long as a substantial remedy remains. It is not considered to be a right, privilege or immunity of citizen, guaranteed either by the national or State constitution, to employ any particular form of action in the prosecution of a claim.1 It is fully within the competency of the legislature to prescribe the form of complaint, as well as the form of action.2 And this is true, even though the new remedy or form of action may be more summary and expeditious.3 The only limitation on the power of the legislature to change the remedies or forms of procedure, and to apply the new remedy or form of procedure to existing causes of actions, is that the change must not work any denial to the reasonable enforcement of any substantive rights of the parties litigant.4

A law may take away from existing contracts the right to confine the debtor, and yet not impair the obligation of the contract. “Confinement of the debtor may be a punishment for not performing his contract, or may be allowed as a means of inducing him to perform it. But the State may refuse to inflict this punishment, or may withhold this means, and leave the contract in full force. Imprisonment is no part of the contract, and simply to release the prisoner does not impair the obligation.”5 In the same way, an altogether different remedy may be provided without taking away any existing remedy; as, for example, where a statute imposed a penalty on a lessee for continuing in possession after the termination of the lease; its application to existing leases was held not to constitute an unlawful impairment of the obligation of a contract.1

So, also, has it been held that it constitutes no impairment of the obligation of a contract, in a place where a party has contracted to furnish water to a city, if a subsequent statute makes the violation of these contractual obligation a criminal misdemeanor. By entry into these obligations to furnish water, the party has assumed a public duty, the violation or non-performance of which merits the severest punishment.2

Changing the locus of the suit for ejectment does not violate any constitutional provision; as where a new law authorizes a suit in ejectment to be brought in a county, other than that in which the land concerned lies. It is said that there is no vested right in the defendant to have the case tried in the county where the land is situated, or by a jury of that county.1

As long as the changes in the forms and rules of procedure do not interfere with the reasonable enforcement of the substantive rights of the parties, it cannot be said that the application of the new forms, or the new rules, to existing contracts and causes of action, constitutes an impairment of the obligation of a contract.

The service of process, on all persons whose rights and interests will be affected by a decree, is a fundamental requirement of justice. Any gross or plain violation of this fundamental requirement would certainly be in violation of the spirit, as well as of the letter, of the constitution, as it has been held in a number of cases. And, in ordinary cases, i. e., in the case of persons who live within the reach of the process of the court, nothing but personal service would answer the requirement of the constitutions. Service by publication or posted notice, in the case of residents of the State, in which the court has jurisdiction, could not be authorized by statute. Such a statute would be unconstitutional, because it would constitute an unlawful impairment of the obligation of a contract.2 Thus, the Ohio registration land act of 1896, was held to be unconstitutional, because it provided for service by publication on all persons, interested in the title to a tract of land, who resided outside of the county.3

But where persons, who are interested in the subject-matter of the suit, reside beyond the jurisdiction of the court, personal service is impossible; and if no substitute were permitted, there would be a frustration of justice in many cases, unless the statute dispensed altogether with the service of notice on non-residents, and allowed judgment to be entered up, without notice of any kind, which would be binding upon the non-resident parties. Service by publication and by mail is provided as a substitutive process in such cases, i. e., in the case of non-residents, the additional service by mail being required in every case where the address of the non-resident party is known. The substitutive service of process by publication, in the case of non-residents, has been uniformly declared to be constitutional; at least, where there is property within the jurisdiction of the courts, against which a successive levy might be made in the enforcement of the judgment of the court.1 But it is not denied that service by publication is insufficient in other cases. It is an universal, and, so far as I know, an unquestioned rule, that service by publication against a non-resident will give a court full jurisdiction to render a decree of divorce, where the party plaintiff is a bona fide resident of the State.2 It has been held in New Jersey, that service by publication is sufficient to fasten a personal judgment upon a non-resident, in a suit in which he is jointly liable with one or more residents.3

But every one, who may be interested in the results of an action, need not be served with process, if he is legally represented by those who have been served. Thus, where suits for the enforcement of claims against a decedent are brought against executors or administrators, it is not necessary that the widow and heirs of the deceased should be made parties, even though the suit be for the foreclosure of a mortgage on the so-called community property; i. e., property which had been owned jointly by the husband and wife, during the life of both.1

It is not an uncommon statutory provision, that in certain cases the plaintiff shall give security for costs, as a condition precedent to the maintenance of the suit. This requirement is held to be constitutional, and not to constitute a denial of justice.2 It has also been held to be constitutional to tax the costs of a criminal prosecution upon the prosecuting witness, if it should prove to be a case of malicious prosecution, and to commit him to jail, until he pays them.3

In the State of Washington, a statute was held to be unconstitutional as class legislation, which provided that the plaintiff shall recover attorney’s fees in all actions for injury to stock by railroad companies; no general provision being made for the recovery of attorney’s fees in other and similar actions.4 But the contrary opinion was reached by the Supreme Court of Illinois in a case in which the statute provided for the payment of a reasonable attorney’s fee to the successful plaintiff in all suits by servants for the recovery of wages, which have been brought only after a previous demand in writing for payment. The statute was held to escape the constitutional condemnation of class legislation.5

The statutes, which provide for the claim and enforcement of mechanics’ liens, in favor of workmen, who have expended labor upon the property, and of the material men, who have furnished supplies, furnish a number of opportunities for raising constitutional questions. Where the property is owned by the person who has employed the workman, or who has ordered the materials which have been used in the repair or improvement of the property, and the title to the property is in such a person, free and clear of all other liens and mortgages; the case is a very simple one, and furnishes little or no opportunity for doubt of its constitutionality. On the other hand, the grant of such a lien involves the creation of so vested an interest as that the repeal of the statute authorizing it will not, and cannot, affect the life and vigor of a lien which has been acquired under the statute prior to its repeal.1 But where the property, against which the lien is lodged, does not belong to the person who contracted for the supplies or labor, or where it is already subjected to other adverse claims or liens, the conflicts of rights become more imminent, and constitutional questions more likely. Thus, most of the mechanics’ lien laws authorize the filing of liens for labor and materials against property upon which they have been expended, where an independent contractor stands between the property owner and the laborers and material men, and with whom all the contracts have been made. The cases are unanimous that the provision for such a lien in such cases is not an unconstitutional interference with contract or vested rights, where the statute is not given a retroactive effect, in order to apply to contracts which are made prior to the enactment of the lien law.2 And it does not offend the constitutions, if the statute requires the contractor to give the property owner a bond of indemnity, upon which recovery might be had on motion for any judgment which might have been obtained against the property owner in the enforcement of mechanics’ liens, provided the contractor be given an opportunity to contest the claim.1 In the Missouri case2 it was held that the law was not unconstitutional, although the lien was granted to laborers and material men, irrespective of the condition of the account between the contractor and the property-owner, or the amount of the lien in relation to the sum due to the contractor. But the United States Circuit Court, in one case, held that both facts should be considered in the enforcement of the lien, so that the property should not in any event be thus subjected in the aggregate to any amount larger than the contract price of the improvements; and that where payments have been made to the contractor before the filing of the lien, that amount should be deducted from the contract price, in order to determine the amount for which the property can be held liable in the enforcement of such liens. The court held a lien law to be an unconstitutional interference with contract rights, which disregarded these principles.3

Still, it must be admitted that the position taken by the Missouri court is generally supported by the other State courts, except that it has been held to be unconstitutional to grant liens to workmen and subcontractors on contracts, which have been made prior to the enactment of the lien law.4 It has thus been held to be permissible to enforce a lien in favor of laborers, without giving the property owner any notice whatever of the claim for wages against the contractor; the only effect of the want of notice being that a judgment against the contractor will not be conclusive against the property owner as to the amount of the claim.5 On the other hand, the requirement of notice is so favored as that a statute, amending the existing lien law, which requires notice to be given to the property owner, may be given a retroactive effect, to apply to contracts which are made, but unperformed, prior to the enactment of the amendatory statute.1 A statute of Alabama was held to be unconstitutional, as a taking of private property, which provided that, where the property owner had not notified a material man not to furnish supplies to the contractor, the failure to give such notice in writing would be prima facie evidence that the materials had been ordered by and with the consent of the owner.2

Another occasion for conflict of rights and the raising of constitutional questions, in the imposition of mechanics’ liens, arises when the property is already subjected to some other lien or mortgage; and the attempt is made under the law to give priority to the mechanics’ lien over the existing liens and mortgages. In Minnesota, it has been held that the mechanics’ lien law was unconstitutional, as an interference with vested rights, in so far as it gave priority over such earlier liens and mortgages to the later mechanics’ lien.3 But other cases from the far western States maintain that the provision for such priority of the mechanics’ lien does not impair the obligation of a contract or interfere with vested rights, in the constitutional sense; and they hold that the lien law is not unconstitutional for that reason.4 In Missouri, a statute was declared to be constitutional, which provided that the debts of an insolvent, which were contracted for labor, should have preference over other debts, by complying with certain requirements of the statute.5 The position of these latter courts seems to me to be sound. Inasmuch as all artificial values are the product of the combination of labor and materials, it is natural to presume that when labor or materials have been expended upon a piece of mortgaged property, the value of the security has been enhanced to the value of the labor, or of the materials, or of both, which have been expended upon the property. Where the debtor has not paid for this labor or for these materials, the prior mortgagee or lien-holder has not, in theory at least, suffered any damage by the grant of a prior lien to the laborer or material man; for, after deducting the wages and cost of material from the present value of the improved property, the remaining value of the property is exactly what the whole value would have been, had not the improvements or repairs been made.

Where mechanic’s liens are imposed upon property by statute, they would be of little value, if provision was not made for enforcing them against the property, after a sale of the land. These statutes usually require that the claims should be proven and filed, so that a subsequent purchaser will have notice of the existence of the liens and of the claims which support them. It would seem at least unjust, if not unconstitutional, to enforce mechanic’s liens against bona fide purchasers of the property, if no provision is made for filing them in a public office, whereby an investigation may reveal their existence to the purchaser. The absence of such provision would make every purchaser of property take it at his peril. It has, however, been held in the State of Washington, that a law was constitutional, which declared it a conclusive presumption that a purchaser of property was not a bona fide purchaser, if he should fail to see to the settlement of any claims for wages for which liens upon the property, in accordance with the statute, may be filed within thirty days after the purchase and transfer of the property. The lien law in that State gave claimants thirty days, in which to file their claims for securing the lien of the property; when under this provision of the statute, the lien would date back to the day of contract, and take priority over the title of a subsequent purchaser for value. The practical effect of the statute was to suspend the settlement of all contracts for the sale of property, for thirty days, in order to protect the purchaser against liens which may be subsequently filed against the property. The court held the law to be constitutional.1

In connection with the enforcement of mechanics’ liens, the Alabama statute provided that the lien should cover a reasonable attorney’s fee. But the Supreme Court of the State held this provision to be in conflict with the State constitution.2 A contrary opinion was reached in a similar case in Montana.3

Somewhat similar to the imposition of attorney’s fees for non-fulfillment of contracts is the provision of a penalty for non-performance of a contract or of a contractual or other obligation. And yet it is different. If the sum recovered under such circumstances be an approximate compensation for the damages which have been suffered on account of the breach of the contract or the non-performance of some legal duty, it is only a reasonable provision for indemnity against loss. But if the sum recovered bears no relation to the damage suffered, then it is in the strict sense of the term a penalty and punitory in character, which it would seem that the parties could not provide for justly by an express stipulation in the contract. For, so opposed was and is equity to the enforcement of a stipulated penalty, that it will furnish relief from the enforcement of such a penalty in every case, in which the actual damage suffered can be computed with reasonable accuracy. Thus a statute, which provided as a penalty, for the nonpayment of an insurance policy within the time prescribed in the policy, twelve per cent of the amount recoverable on the policy, in addition to attorney’s fees, was held to be unconstitutional.1 On the other hand, a statute was sustained in Nebraska, which provided for the recovery of a penalty, if the mortgagee refused to discharge a chattel mortgage which had been paid.2

The rules of evidence may also be changed without affecting the substantive rights involved. No one can be said to possess “a right to have one’s controversies determined by existing rules of evidence.”3 These rules are always subject to change and modification by the legislature; and a new rule can be made to apply to existing rights of action, without interfering with vested rights, or impairing the obligation of a contract. Thus, a law could apply to existing rights of action, which permitted parties in interest to testify.4 So, also, is it constitutional for a statute to deny the admissibility as evidence of the application for life insurance, where the application and its contents have not been made a part of the policy by actual attachment thereto of a copy of the original.5 In the same way may a statute apply to existing rights of action, which changed the burden of proof from the plaintiff to defendant; as, for example, where a tax title is made by statute prima facie evidence of a compliance with the regulations for the sale of land.6 On the same grounds it has been held to be constitutional for a law to provide that the failure of a bank, within thirty days from the time that a deposit has been received, shall be prima facie evidence of knowledge of insolvency at the time when the deposit was made.1 On the other hand, a law of Alabama was held to be unconstitutional, which by creating a prima facie presumption, threw the burden of proof upon the property owner, that he did not order or assent to the order of labor or materials which had been expended on his property by a contractor, in every case in which he had not in writing notified the parties dealing with the contractor of the want of authority.2

But a statute cannot preclude the right to a judicial examination into the facts of a case, by making a certain set of circumstances conclusive evidence of the existence of the right of the plaintiff to recover or to be nonsuited. Except in the case of estoppel, where a man is denied the right to question the truth of his representations which he has made falsely to another’s hurt, there can be no prejudgment of one’s rights by the creation of conclusive presumptions.3 For this reason, a tax deed cannot be made conclusive evidence of facts, such as compliance with the statutory requirements for the advertisement of the property or the making of proper parties, and the like. The deed may be declared to be prima facie evidence, but not conclusive, without violating constitutional principles.1

In the illustration of the operation of statutory estoppels, reference may be made to a Missouri statute, which provided that in suits on fire policies, thereafter issued or renewed, the insurance company would not be permitted to deny that the property was worth the amount of the policy, at the time that it was issued. The deed was declared to be constitutional.2

The ordinary rule of oral evidence is that it must be given by the witness in the presence of the jury and court. The appearance and manner of the witness on the stand, as well as the opportunity for cross-examination by the opposing counsel, increase the value of his testimony. The absence of a material witness is generally recognized as a good ground for asking a continuance of the case; and one continuance is ordinarily granted as a matter of course. A Missouri statute, however, was sustained as constitutional, which authorized a court in a civil action to refuse a continuance on account of an absent witness, when the opposing counsel admits the facts, which this witness was expected to testify to.3

It has also been very generally held to be no impairment of the substantive rights of action, if a law should be enacted exempting certain property of the debtor from execution, to an extent not permitted when the contract was executed or the judgment was obtained. “Regulations of this description have always been considered, in every civilized community, as properly belonging to the remedy to be exercised or not, by every sovereignty, according to its own views of policy or humanity. It must reside in every State to enable it to secure its citizens from unjust and harassing litigation, and to protect them in those pursuits which are necessary to the existence and well being of every community.”1

It has, for example, been held to be constitutional to provide for the widow of a deceased insolvent an allowance of one thousand dollars out of the estate.2 But, of late, there has been a change in the current of judicial opinion; and the tendency now, in some of the courts, is to deny the constitutionality of the changes in the exemption law, which are made to, and so far as they do, apply to existing contracts.3 For example, a South Dakota statute, which provided that the amounts, falling due on a policy of life insurance, “heretofore or hereafter” issued and made payable to the estate of the insured, shall to the extent of five thousand dollars inure to the benefit of the widow, or husband, or minor children, free from the claims of creditors. The court held the statute to be unconstitutional, as an impairment of the obligation of a contract, so far as it was made to apply to antecedent transactions.1

So, it has been held, that homestead laws cannot be made to restrict the right of execution on existing contracts, where there had previously been no homestead law.2 But a homestead can be claimed against judgments which are procured on existing rights of action arising out of torts; since these claims do not become debts until they are reduced to judgment.3

Naturally, an act which exempted all the property of the debtor from execution, would, like the law which deprived the creditor of all remedies, be void, because it impaired the obligation of a contract.4 In those States, also, where the constitution expressly prohibits special legislation, the exemption law, to be constitutional, must apply uniformly in behalf of all classes of debtors. A statute, which exempted certain enumerated property to the value of five hundred dollars, where the execution was issued on a judgment for labor, other than professional services, was declared in Michigan to be unconstitutional as special or class legislation.5

For the same reasons, i. e., that it constituted an impairment of the obligation of a contract, has it been held to be unlawful to provide new defenses, and to apply them to existing contracts. This was the conclusion reached in a case, in which a new defense was given to the process of garnishment.6 On the other hand, a statute was held to be constitutional, which removed the ground under which a pending attachment was issued and levied.1 A more rational case, in which a conclusion similar to that in the last case was reached, is that of denying the validity of a garnishment process which was issued against an assignee for the benefit of creditors after the assignment, and before the enactment of a statute which cured some defects in the assignee’s bond. It was held that the garnishment under those circumstances gave the garnishee plaintiff no rights which the legislature could not abrogate by this curative statute.2

Another interesting phase of the regulation of rights of action is involved in the enactment of bankruptcy and insolvency laws. The power of the United States, by the enactment of bankrupt laws, to provide for the release of the debtor from his contractual obligations on the surrender of his assets to his creditors, cannot be questioned, because the power is expressly given by the Federal constitution.3 And it has been settled by the decisions of the United States Supreme Court that the several States may provide similar legislation, subject to the paramount control of Congress. When there is a Federal bankrupt law, it supersedes the State law of insolvency; but the latter comes into operation again upon the repeal of the national bankrupt law.4 But the State insolvent law, not being authorized by an express constitutional provision, cannot be made to apply to existing contracts, since they cannot be considered as having been made in contemplation of such a law. State insolvent laws can only apply to future contracts.1

In the absence of a national bankrupt law, the making of preferential assignments for the benefit of particular creditors is a fruitful source of contention. In most of the commercial States, they are either prohibited altogether, or they are subjected to strict statutory restrictions and limitations. But there seems to be no doubt of the constitutionality of a law which authorized such preferential assignments, or which directly gave preferences to certain classes of creditors; at least, so far as the statutes apply only to future contracts.2 On the other hand, it has been held in Tennessee to be beyond the power of the legislature to prohibit all preferential transfers of property to satisfy certain debts, without regard to the solvent or insolvent condition of the debtor. The debtor was held to have a constitutional right to transfer property in satisfaction of specific debts, and the prohibition of the preferential assignments must be limited in its application to cases of insolvency.3

An assignee for the benefit of creditors has no vested right in his office, and he may by statute be removed without cause.4

The property of insolvent debtors is frequently placed in the hands of a receiver, who is appointed by the court, and who administers the property for the benefit of creditors and of the debtor, under orders of the court. The receiver customarily makes contracts in relation to the property, incurs liabilities and sometimes borrows money. Where all of these things are done by him in conformity with the orders of the court, these liabilities constitute a first lien upon the property in his hands, which must be first liquidated before the creditors receive any payments. Naturally, where the receivership is vacated, without the sale of the property and distribution of the proceeds among the creditors, and the property is restored to the owner, the liabilities which have been incurred by the receiver must be provided for. A statute which provides in such a case that the claims against the receiver must be paid by the owner is clearly constitutional, in every case in which the original appointment of the receiver was lawful.1

While a law would be invalid which denied to one all remedy for the redress of his wrongs; and while resort to the courts for a vindication of one’s rights may be considered as an absolute right, which cannot be arbitrarily taken away; it is nevertheless true that it is not the duty of the State to keep its courts open indefinitely for the institution of private suits. It has performed fully its duty to the citizen, when it has opened its courts to him for a reasonable time after the right of action has accrued. It is also injurious to the public welfare to permit suits upon stale claims; for the permission of them gives an opportunity for the perpetration of fraud and the infliction of injustice, in consequence of the intermediate loss of evidence and death of witnesses, which prevent the defendant from meeting and disproving the claim of the plaintiff. For these reasons it has for time immemorial, and in all systems of jurisprudence, been considered wise and proper, by the enactment of statutes of limitation, to compel all rights of action to be prosecuted within a reasonable length of time after the action has accrued. And it is also the settled rule of American constitutional law that the amendments to the statutes of limitation can be made to apply to existing contracts without impairing their obligation in a constitutional sense, provided after the enactment a reasonable time is given for the institution of the suit.1

Some late cases reveal some interesting illustrations of this principle. A Nebraska statute was held to be constitutional, although it provided that no action shall be brought against counties for failure to keep highways and bridges in repair, unless it is commenced within thirty days after sustaining an injury therefrom.2 A Denver ordinance, which required any one injured upon the streets to give the mayor or city council a full notice of the injury in writing within thirty days after receiving the injury, in order to hold the city liable, was held to be constitutional.3 On the other hand, a statute was sustained which prohibited parties to contracts from limiting by express agreement the period in which suit on the contract may be brought shorter than two years, and which provided that no stipulation shall be valid, which requires notice of inquiry to be given in a less time than ninety days.4

Two cases seem to be in opposition to the general rule as just stated in the text, viz.: that an amendment to the existing statute of limitations may be made to apply to existing causes of actions and contracts, provided a reasonable time be given, within which suit may yet be brought on the existing contracts. In New Jersey, it has been held that changes in the existing statute of limitations can not apply to antecedent obligations.1

If the existing statute of limitations has run completely against a certain contract or obligation, no amendment thereto can extend the period in which suit might be brought on such a barred cause of action. The retroactive operation of such an amendatory act would be an unconstitutional impairment of the obligation of a contract.2

The judgment is the final form of every cause of action, which is contested; and it is said that in every essential sense, the judgment is a contract, which is as much protected against impairment by subsequent legislation as is the original contract or cause of action, which by reduction to judgment becomes merged therein. The laws, therefore, which control the effect and operation of a judgment, cannot be changed by legislation subsequent to the rendition of the judgment, and retroactively change the rights of the judgment creditor. Thus, a law which authorizes the reopening of a judgment, which has been taken in the absence of the defendant, was amended to include judgments which have been rendered upon the verdict of a jury; and the law as amended was made to apply to a judgment on a verdict, which had been rendered prior to the enactment of the amendatory statute. It was held that the amendatory statute was unconstitutional and void, so far as it was given this retroactive effect. It was valid only so far as it was applied to future judgments.3 And, while the statute of limitation may be changed and applied as changed to existing causes of action, as has already been explained; it has been held that a statutory change of the law relating to the perpetuation of a judgment, could not be made to apply to any contract, which was in existence when the statute was enacted.1

For the same reasons, it has been held to be unconstitutional for a law to change the period of redemption of mortgaged property in the foreclosure of mortgages, which antedate the amendatory statute.2 The same conclusion was reached, in the case of an amendatory statute, which took away the right of the mortgagee to a personal judgment against the mortgage, or which limited the enforcement of such a judgment to the property which was included in the mortgage.3

On the other hand, apparently in complete opposition to the former trend of authority, it has been held by the Supreme Court of the United States, that the judgment was so far not a contract, as that a law, passed subsequently, may change the rate of interest which may be recovered on all existing judgments, which are based upon a contract which contains no provision for the payment of interest. The court held that in such a case the provision for the payment of interest on the judgment was clearly within the discretion of the legislature, and may be changed at its pleasure, even in relation to existing judgments.4

A statute of Rhode Island provided that when a trustee satisfied a final judgment to the amount of the attached property in his hands, it shall constitute a complete and final discharge of the debt on which the judgment rested. The constitutionality of the act was sustained, so far as it affects debts due to non-residents.5

[1]“No State shall pass any law impairing the obligation of a contract.” U. S. Const., art. I, § 10.

[2]Douglass v. Pike Co., 101 U. S. 677; McCracken v. Hayward, 2 How. 608, 612; Ogden v. Saunders, 12 Wheat. 213; People v. Ingersoll, 58 N. Y. 1; Goggans v. Turnipseed, 1 S. C. 40 (7 Am. Rep. 23); Stein v. Mobile, 49 Ala. 362 (20 Am. Rep. 283); Van Baumback v. Bade, 9 Wis. 559. And the constitutional prohibition applies to changes in the State constitution as well as to amendments of the statutes. White v. Hart, 13 Wall. 646; Osborn v. Nicholson, 13 Ark. 654; Oliver v. Memphis, etc., R. R. Co., 30 Ark. 128; Jacoway v. Denton, 25 Ark. 641.

[3]“It is the civil obligation which [the constitution] is designed to reach; that is, the obligation which is recognized by, and results from, the law of the State in which it is made. If, therefore, a contract when made is by the law of the place declared to be illegal, or deemed to be a nullity, or a nude pact, it has no civil obligation; because the law in such cases forbids its having any binding efficacy or force. It confers no legal right on the one party, and no corresponding legal duty on the other. There is no means allowed or recognized to enforce it; for the maxim is ex nudo pacto non oritur actio. But when it does not fall within the predicament of being either illegal or void, its obligatory force is co-extensive with its stipulations.” Story on Constitution, § 1380.

[1]See ante, §§ 91, 99-118.

[2]For a discussion of this subject see Cooley Const. Lim., pp. 331-346. Whether the character of corporations fall properly within the meaning and scope of this provision, see post, § 188.

[3]United States ex rel. Siegel v. Thoman, 156 U. S. 353.

[1]Arnold v. Alden, 173 Ill. 229.

[2]Galveston H. & S. A. Ry. Co. v. State of Texas, 170 U. S. 226.

[3]Houston & T. C. Ry. Co. v. State of Texas, 170 U. S. 243.

[1]See ante, § 96.

[2]Chicago B. & Q. Ry. Co. v. State (U. S.), 18 S. Ct. 531.

[3]As to which, see ante, § 137a.

[4]Hamilton v. Brown, 161 U. S. 256.

[1]11 Pet. 420, 536.

[1]Sheehan v. Treasurer of Long Island City, 33 N. Y. S. 428; 11 Misc. 487. See, also, to the same general effect, In re Copenhaver, 54 Fed. 660.

[2]Shapleigh v. City of San Angelo, 167 U. S. 646.

[3]Savings & Loan Ass’n v. Altmas Co., 65 Fed. 677; Mills County v. Brown County (Tex.), 29 S. W. 650.

[4]Stevens v. City of Muskegon, 111 Mich. 72.

[1]People v. Common Council of Buffalo, 140 N. Y. 300.

[2]Eidemiller v. City of Tacoma, 14 Wash. St. 376 (44 P. 877).

[3]McClellan v. State, 138 Ind. 321.

[4]Wood v. Brady, 150 U. S. 18. This principle has been applied by the United States Supreme Court and in other cases, in favor of the holders of municipal bonds, who have relied upon the judicial determination of the validity of a statute, under which bonds of like character have been issued by the different municipalities.

[1]Bacon v. State of Texas, 163 U. S. 207. See, also, Gelpcke v. Dubuque, 1 Wall. 200; Railroad Co. v. McClure, 10 Wall. 511.

[2]Osborne v. Nicholson, 13 Wall. 662; Call v. Hagger, 8 Mass. 430; Penrose v. Erie Canal Co., 56 Pa. St. 46; Thompson v. Commonwealth, 81 Pa. St. 314; West v. Sansom, 44 Ga. 295; Rison v. Farr, 24 Ark. 161; Griffin v. Wilcox, 21 Ind. 370; McFarland v. Butler, 8 Minn. 116; Jackson v. Butler, 8 Minn. 117.

[3]Drehman v. Stifel, 41 Mo. 184; s. c. 8 Wall. 595. See Hess v. Johnson, 3 W. Va. 645. In the first case, the constitutional provision took away all rights of action for anything done by the State or Federal military authorities during the Civil War.

[1]Baltzer v. State of North Carolina, 161 U. S. 240.

[1]Houston & T. C. Ry. Co. v. Rogers (Tex. Civ. App.), 39 S. W. 1112.

[2]North Point Consol. Irrigation Co. v. Utah & Salt Lake Canal Co. (Utah), 46 P. 824; Eastman v. Gurrey (Utah), 46 P. 828.

[3]Chicago B. & Q. Ry. Co. v. Headrick, 49 Neb. 286; 68 N. W. 489.

[4]Lovell v. Davis, 52 Mo. App. 342.

[5]Ogden v. Saunders, 12 Wheat. 213; Beers v. Haughton, 9 Pet. 329; Tennessee v. Sneed, 96 U. S. 69; Fourth Nat. Bank v. Franklyn, 120 U. S. 747; Willis v. Miller, 29 Fed. 238; Strickler v. Yager, ib.; Commonwealth v. Jones, 1 S. E. 84, note; 82 Va. 789; Simpson v. Savings Bank, 56 N. H. 466; Danks v. Quackenbush, 1 N. Y. 129; Morse v. Goold, 11 N. Y. 281; Baldwin v. Newark, 38 N. J. 158; Moore v. State, 43 N. J. 203; Evans v. Montgomery, 4 Watts & S. 218; Penrose v. Erie Canal Co., 56 Pa. St. 46; Baumgardner v. Circuit Court, 4 Mo. 50; Porter v. Mariner, 50 Mo. 364; Smith v. Van Gilder, 26 Ark. 521; Coosa River St. B. Co. v. Barclay, 30 Ala. 120; Holloway v. Sherman, 12 Iowa, 282; Smith v. Packard, 12 Wis. 371; Bronson v. Newberry, 2 Dougl. (Mich.), 38; Brockwell v. Hubbell’s Admrs., 2 Dougl. (Mich.) 197.

[1]Iowa Cent. Ry. Co. v. State of Iowa, 160 U. S. 389.

[2]State v. McCaffrey (Vt.), 37 A. 234.

[3]New Orleans C. & L. Ry. v. State of La., 157 U. S. 219.

[4]Maury v. Commonwealth, 92 Va. 310.

[5]Marshall, C. J., in Sturges v. Crowninshield, 4 Wheat. 122. See Mason v. Haile, 12 Wheat. 370; Penniman’s Case, 103 U. S. 714; Matter of Nichols, 8 R. I. 50; Sommers v. Johnson, 4 Vt. 278 (24 Am. Dec. 604); Ware v. Miller, 9 S. C. 13; Maxey v. Loyal, 38 Ga. 531; Bronson v. Newberry, 2 Dougl. (Mich.) 38; In re Knaup, 144 Mo. 653; Colby v. Backus, 19 Wash. St. 347. A judgment lien may be taken away by the repeal of the statute authorizing it. Watson v. N. Y. Cent. R. R. Co., 47 N. Y. 157; Woodbury v. Grimes, 1 Col. 100. But see, contra, Gunn v. Barry, 15 Wall. 610. The time of the lien may also be extended before it has expired (Ellis v. Jones, 51 Mo. 180), or the mode of securing it changed before it has attached. Whitehead v. Latham, 83 N. C. 232. See, also, Williams v. Haines, 27 Iowa, 251, in which a statute, which allowed the want of consideration to be set up in defense of an action on a sealed instrument, was held to be constitutional, because it did not impair the obligation of the contract. On the other hand, where by statute the stockholders are made personally liable for the contracts of the corporation, a statute taking away this liability cannot be made to apply to existing contracts. Hawthorn v. Calef, 2 Wall. 10; Corning v. Mc Cullough, 1 N. Y. 47; Story v. Firman, 25 N. Y. 214; Morris v. Wrenshall, 34 Md. 494; Brown v. Hitchcock, 36 Ohio St. 667; Providence Savings Institute v. Skating Rink, 52 Mo. 452. So, also, may the distress for rent be taken away from existing leases. Van Rensselaer v. Snider, 9 Barb. 302; s. c. 13 N. Y. 299; Guild v. Rogers, 8 Barb. 502. And the distress for rent may be abolished, even in cases in which the parties have expressly stipulated for it. Conkey v. Hart, 14 N. Y. 22.

[1]Woodward v. Winehill, 14 Wash. 394.

[2]Crosby v. City of Council of Montgomery, 108 Ala. 498. It may be open to question, whether such an increase in the severity of the remedy, would be sustained, if applied to existing causes of action arising between strictly private parties.

[1]State v. Lake Shore & M. S. Ry. Co., 1 Ohio N. P. 292; 2 Ohio Dec. 300.

[2]McNamara v. Casserly, 61 Minn. 335.

[3]State v. Guilbert, 56 Ohio St. 575.

[1]See City of Philadelphia v. Jenkins, 162 Pa. St. 451, in which the question was raised and answered in application to the service by publication of non-resident land-owners in actions for the enforcement of municipal liens. And see Kurtz v. Duluth Land Co., 52 Minn. 140, as to service by publication on non-resident infants of notice of appointment of a resident guardian. See also Kurtz v. St. Paul & D. R. Railroad Co., 48 Minn. 339.

[2]I do not, of course, refer to or include here the numerous cases of fraudulent acquisition of domicile, which the statutes of some of the States allow, in the interests of the local bar.

[3]Kirkpatrick v. Post, 53 N. J. Eq. 591.

[1]Hearfield v. Bridge, 67 Fed. 333.

[2]Succession of Grover, 49 La. 1050; Holt v. Tennallytown &c. Ry. Co., 81 Md. 219.

[3]Lowe v. State of Kansas, 163 U. S. 81.

[4]Joliffe v. Brown, 14 Wash. St. 155 (44 P. 149).

[5]Vogel v. Pekoc, 157 Ills. 339.

[1]Garneau v. Port Blakely Mill Co., 8 Wash. 467.

[2]Henry & Coatsworth Co. v. Evans, 97 Mo. 47; Lambert v. Davis, 116 Cal. 292; Hoffa v. Person, 1 Pa. Super. Ct. 357.

[1]Cole Mfg. Co. v. Falls, 90 Tenn. 466.

[2]Henry & Coatsworth Co. v. Evans, 97 Mo. 47.

[3]Jones v. Great Southern Fireproof Hotel Co., 70 Fed. 477.

[4]Andrews & Johnson Co. v. Atwood, 167 Ill. 249.

[5]Brown v. Markham, 60 Minn. 233.

[1]Osborn v. Johnson Wall Paper Co., 99 Ala. 309.

[2]Randolph v. Builders’ and Painters’ Supply Co., 106 Ala. 501.

[3]Meyer v. Berlandi, 39 Minn. 438.

[4]Gaar v. Clements, 4 N. D. 559; Sitton v. Dubois, 14 Wash. 624 (45 P. 303).

[5]Hennig v. Staed, 138 Mo. 430.

[1]McCoy v. Cook, 13 Wash. St. 158; 42 P. 546.

[2]Randolph v. Builders’ & Painters’ Supply Co., 106 Ala. 501.

[3]Wortman v. Kleinschmidt, 12 Mont. 316; Helena Steam Heating & Supply Co. v. Wells, 16 Mont. 65 (40 P. 78).

[1]New York Life Ins. Co. v. Smith (Tex. Civ. App.), 41 S. W. 680.

[2]Clearwater Bank v. Kurkouski, 45 Neb. 1.

[3]Cooley Const. Lim. 452. See Com. v. Weller, 82 Va. 721; State v. Weston, 1 Ohio N. P. 350; 3 Ohio Dec. 15.

[4]Rich v. Flanders, 39 N. H. 304; Southwick v. Southwick, 49 N. Y. 510. So, also, a statute which admits parol evidence to contradict a written instrument. Gibbs v. Gale, 7 Md. 76. See, generally, Ogden v. Saunders, 12 Wheat. 213; Webb v. Den, 17 How. 576; Fales v. Wadsworth, 23 Me. 553; Pratt v. Jones, 25 Vt. 303; Neass v. Mercer, 15 Barb. 318; Howard v. Moot, 64 N. Y. 262; Commonwealth v. Williams, 6 Gray, 1; Karney v. Paisley, 13 Iowa, 89.

[5]Considine v. Metropolitan Life Ins. Co., 165 Mass. 462; Dangan v. Metropolitan Life Ins. Co., 165 Mass. 462.

[6]Hand v. Ballou, 12 N. Y. 541: Forbes v. Halsey, 26 N. Y. 53; Lacey v. Davis, 4 Mich. 140; Wright v. Dunham, 13 Mich. 414; Delaplaine v. Cook, 7 Wis. 44; Lumsden v. Cross, 10 Wis. 282; Adams v. Beale, 19 Iowa, 61; Abbott v. Lindenbower, 42 Mo. 162; s. c. 46 Mo. 291.

[1]Robertson v. People, 20 Colo. 279.

[2]Randolph v. Builders’ & Painters’ Supply Co., 106 Ala. 501.

[3]Tift v. Griffin, 5 Ga. 185; Little Rock, etc., R. R. Co. v. Payne, 33 Ark. 816 (34 Am. Rep. 55); Abbott v. Lindenbower, 42 Mo. 162; s. c. 46 Mo. 291; Young v. Beardsley, 11 Paige, 93; East Kingston v. Towle, 48 N. H. 57 (2 Am. Rep. 174); Allen v. Armstrong, 16 Iowa, 508; Conway v. Cable, 37 Ill. 82; White v. Flynn, 23 Ind. 46; Groesbeck v. Seeley, 13 Mich. 329; Lenz v. Charlton, 23 Wis. 478; Taylor v. Miles, 5 Kan. 498 (7 Am. Rep. 558); Wright v. Cradlebaugh, 3 Nev. 341. In the case last cited the court say: “We apprehend that it is beyond the power of the legislature to restrain a defendant in any suit from setting up a good defense to an action against him. The legislature could not directly take the property of A. to pay the taxes of B. Neither can it indirectly do so by depriving A. of the right of setting up in his answer that his separate property has been jointly assessed with that of B., and asserting his right to pay his own taxes without being incumbered with those of B. * * * Due process of law not only requires that a party shall be properly brought into court, but that he shall have the opportunity when in court to establish any fact which, according to the usages of the common law, or the provisions of the constitution, would be a protection to him or his property.”

[1]Roth v. Gabbert, 123 Mo. 21; Larson v. Dickey, 39 Neb. 463.

[2]Daggs v. Orient Ins. Co. of Hartford, 136 Mo. 382.

[3]Geary v. Kansas City, O. & S. Ry. Co., 138 Mo. 25.

[1]Taney, C. J., in Bronson v. Kinzie, 1 How. 311, 315; Quackenbush v. Danks, 1 Denis, 128; s. c. 3 Denio, 594; s. c. 1 N. Y. 129; Morse v. Goold, 11 N. Y. 281; Hill v. Kessler, 63 N. C. 437; Martin v. Hughes, 67 N. C. 293; In re Kennedy, 2 S. C. 216; Hardeman v. Downer, 39 Ga. 425; Maull v. Vaughn, 45 Ala. 134; Sneider v. Heidelberger, 45 Ala. 126; Farley v. Dowe, 45 Ala. 324; Breitung v. Lindauer, 37 Mich. 217; Sprecker v. Wakely, 11 Wis. 432; Coleman v. Ballandi, 22 Minn. 144; Cusic v. Douglass, 3 Kan. 123.

[2]In re Mulligan’s Estate, 24 N. Y. S. 321; 4 Misc. Rep. 361.

[3]See Duncan v. Burnett, 11 S. C. 333 (32 Am. Rep. 476); Wilson v. Brown, 58 Ala. 62 (29 Am. Rep. 727); Johnson v. Fletcher, 54 Miss. 628 (28 Am. Rep. 388).

[1]Skinner v. Holt (S. D.), 69 N. W. 595.

[2]Gunn v. Barry, 15 Wall. 610; Edwards v. Kearzey, 96 U. S. 595; Homestead Cases, 22 Gratt. 266 (12 Am. Rep. 507); Garrett v. Cheshira, 69 N. C. 396 (12 Am. Rep. 647); Lessley v. Phipps, 49 Miss. 790.

[3]Parker v. Savage, 6 Lea, 406.

[4]State v. Bank of South Carolina, 1 S. C. 63.

[5]Burrows v. Brooks, 113 Mich. 307.

[6]Adams v. Creen, 100 Ala. 218.

[1]Day v. Madden (Colo. App.), 48 P. 1053.

[2]Freiberg v. Singer, 90 Wis. 608.

[3]U. S. Const., art. I., § 8.

[4]See Sturgis v. Crowninshield, 4 Wheat. 122; Farmers’ and Mechanics’ Bk. v. Smith, 6 Wheat. 131; Ogden v. Saunders, 12 Wheat. 213; Baldwin v. Hale, 1 Wall. 223. But the State insolvent laws can have no application to contracts made without the State, or to those made between citizens of different States, unless all the parties to the contract come into court and voluntarily submit to the operation of the State laws, McMillan v. McNeil, 4 Wheat. 209; Ogden v. Saunders, 12 Wheat. 213; Clay v. Smith, 3 Pet. 411; Boyle v. Zacharie, 6 Pet. 348; Suydam v. Broadnax, 14 Pet. 67; Cook v. Moffat, 5 How. 295; Baldwin v. Hale, 1 Wall. 223; Baldwin v. Bank of Newbury, 1 Wall. 234; Gilman v. Lockwood, 4 Wall. 409.

[1]Ogden v. Saunders, 12 Wheat. 213.

[2]Paddock v. Staley, 24 Colo. 188 (49 P. 281).

[3]Third Nat. Bank v. Divine Grocery Co., 97 Tenn. 303.

[4]Burtt v. Barnes, 87 Wis. 519.

[1]Missouri K. & T. Ry. Co. v. Chilton (Tex. Civ. App.), 27 S. W. 272.

[1]See Terry v. Anderson, 95 U. S. 628; Williams v. Eggleston, 170 U. S. 304; Proprietors, etc., v. Laboree, 2 Me. 294; Call v. Hagger, 8 Mass. 423; Smith v. Morrison, 22 Pick. 430; Davidson v. Lawrence, 49 Ga. 335; Kimbro v. Bk. of Fulton, 49 Ga. 419; Hart v. Bostwick, 14 Fla. 162; Barry v. Ransdell, 4 Met. (Ky.) 292; O’Bannon v. Louisville, 8 Bush, 348; Blackford v. Pettier, 1 Blackf. 36; DeMoss v. Newton, 31 Ind. 219; Price v. Hopkin, 13 Mich. 318; Osborne v. Jaines, 17 W.s. 573; Hill v. Gregory, 64 Ark. 317; Swampland Dist. No. 307 v. Glide, 112 Cal. 85; State v. Messenger, 27 Minn. 119; Adamson v. Davis, 47 Mo. 268; Keith v. Keith, 26 Kan. 27; Mellinger v. City of Houston, 68 Tex. 36; Moody v. Hoskins, 64 Miss. 648.

[2]Madden v. Lancaster County, 65 Fed. 188; 12 C. C. A. 566.

[3]Cunningham v. City of Denver, 23 Colo. 18 (45 P. 356).

[4]Armstrong v. Galveston H. & S. A. Ry. Co. (Tex. Civ. App.), 29 S. W. 1117. See, to the same effect, Karnes v. Am. Fire Ins. Co., 144 Mo. 413.

[1]Wilkinson v. Lemassina, 51 N. J. L. 61; Morris v. Carter, 46 N. J. L. 260.

[2]Board of Education of Normal School Dist. v. Blodgett, 155 Ill. 441.

[3]Morrison v. McDonald, 113 N. C. 327.

[1]Bettman v. Cowley (Wash.), 53 P. 53.

[2]Barnitz v. Beverly, 163 U. S. 118; overruling Beverly v. Barnitz, 55 Kan. 466; State v. Gilliam, 18 Mont. 94 (45 P. 661), overruling s. c. 44 P. 394; State v. Sears, 29 Oreg. 580 (43 P. 482); Swinburne v. Mills, 17 Wash. 611 (50 P. 489.)

[3]Dennis v. Moses (Wash.), 52 P. 333.

[4]Morley v. Lake Shore & M. S. Ry. Co., 146 U. S. 162. Three justices dissented, Justices Field, Harlan and Brewer.

[5]Cross v. Brown, 19 R. I. 220.