John Lowden et. al. vs. J. C. Moses.
i.:«neni5 tiiat all laws ought to be prospective in their operation, and where they are not so, but interfere with past transactions or contracts, they are inconsistent with the principles oí sound legislation and void.
The right of the plaintiff to imprison his debtor until he pays, the debt, forms no part of the lex contractus. The obligation to make satisfaction, must always exist; and the right to discharge a debtor from prison, upon a surrender of his property, does not affect the right of satisfaction; but is a part of the lex fori, with a view to which people always contract, and .therefore becomes a part of the lex contractus. It does not impair the right ol the creditor over future acquisitions of the debtor.
The right to imprison the debtor is no part oftheconlract, but a punisbincnlfor not performing it, which the state may refuse to inflict, or may modify or discharge, and the contract is still left in full force
A vendue master, imprisoned under a ca. sa. ata time when vendue masters were prohibited from the beneiit of the prison bounds and insolvent debtors acts, upon a revocation of the act depriving vendue masters of such benefit, is entitled to the beneiit of the repealing act, and are put on a footing with other debtors.
Kotfilingaschedule within forty days, only deprives the debtor of. thebenefitof the prison rules or limits, but does not deprive him of the final benefit of the act, but he may render it in.at anytime during his confinement.
A vendue master not having rendered a schedule within forty days, at a time when he was deprived of the benefit of the insolvent debtors and prison bounds, acts, is not precluded, when the privilege of those act3 are again restored to vendue masters by the legislature.
This was a motion made by the defendant in Charleston, before Judge Bay at Chambers, for the benefit of the prison bounds act. The defendant had been a vendue master, and had sold goods ior the plaintiffs to tbe amount of about 817,000. In the mean time Moses failed and tbe plaintiffs brought actions, and obtained judgments and executions against him, in June 1821, and under these executions he had been confined to the Charleston gaol, nearly two years. And now this motion was made in May 1824, on his part, for the benefit of the prison bounds act.
To this motion it was objected, that the defendant was not entitled to the benefits of the act, as the legislature by their act of 1815, deprived vendue masters of the benefit of the prison bounds and insolvent debtors law, “ in all cases, *94where his or their debt or debts arose from not paying to thir owner or owners who shall place property in their hands for sale, the proceeds of the property so disposed of.”
To this the defendant replied that the act of 1815, was repealed by the act Of the 20th December 1823; and that now" he stood upon the same footing as other debtors, and was entitled to the prison bounds and insolvent debtors acts.
The plaintiffs on the other hand contended that when the judgments were obtained against the defendant, and he was committed to prison, he was not entitled to the benefit of' the prison bounds and insolvent debtors acts, and that though the act of 1823, did repeal the act of 1815, yet the defendant could not be benefited thereby, as the act of 1823 could not affect in any way vendue masters, committed a a time previous to that act. That under the act of 1815, the plaintiffs had a right to imprison the defendant until he paid the debt; and the act of 1823, could not by a retrospective operation, affect such right. That the act of 1823, was entirely prospective, as all laws should be, and could not operate upon cases, occurring previous to its enactment. That the legislature never intended it to have such operation; and if it did, so much of the act would be void, as was retrospective and interfering with the rights- of the parties arising from their contracts.
To this the defendant replied, that it was not interfering with any contract, nor was it retrospective, in the- sense so objectionable to sound legislation; but that imprisonment was a mere process for enforcing contracts and duties which could be modified, altered and abolished, at any and at all-times, as to any and all suits.
It was also objected on the part of the plaintiff, that the prison bounds act, (Pub. Laws 456,) did not allow the benefit of the act to any prisoner under execution, who had not filed his schedule within forty days. And the defendant replied to this, that that exception did not apply to cases like his, where it would have been idle to have filed his *95petition and schedule previous to the act of 1828, allowing bim the benefit of the prison bounds act.
The case was argued at length and learnedly, by Messrs. Prioleau and Holmes, for the motion.
And by Messrs. King and Gadsden for the creditors,
Mr. Prioleau and Mr. Holmes,
In réply to the arguments against the motion urged that the opposition made by the plaintiffs in these actions was cruel and oppressive in a high degree, as defendant had already been confined in jail twenty two months; and to confine him in jail the remainder of his days could answer no good purpose to the plaintiffs themselves, as he was totally unable to pay the debts at present; and incarceration in a jail, would render him unable to use any means for bettering his condition in life, so as to enable him to pay off those debts by his future industry. Besides, it would not only be punishing the defendant, but also a wile and nine or ten helpless children, whose only dependence for their future support was on the industry and exertions of a husband and father. That the principle contended for was not only cruel in itself, but it was inconsistent with civil liberty and the jrue policy of the United States, and of every state in the union. For the state of which he v/as a member, had a right to his services as a freeman, in the capacity of a militiaman, to aid in defence of his country and as a juror to aid in the execution of the laws of his country and in the discharge of other civil obligations as a citizen. For these and many other reasons, .the sound policy of our laws and the principles of the general and state governments would not permit or suffer the doctrine of perpetual imprisonment to exist in this land of freedom. . They admitted, that part of the act of 1823 was prospective in its operation; but that the first clause was a general, distinct, independent clause, merely repealing the act, without relation to any existing contract whatever, and that when this barrier was removed, there was nothing which stood in the way of the defendant’s discharge. That to contend that a legislative body, in *96whom the supreme power was vested, could not pass laws to liberate debtors, was in effect to cripple it in one of its most essential prerogatives. That the principle, so strongly urged onthe other side, ofavendue master pledging his body asa part of the original contract, and making it a part of the lex contrac-tus, is falacioiis in the extreme. It had no foundation to support it, but the ingenuity of construction given by the opposite counsel. A vendue master’s contract is like that of every other debtor in its original creation, tb wit, that he will pay the debt; arid'like every other man his body and-his goods may be taken in satisfaction of the debt. But this is not by any express contract on his part, but by the operation of the generaf law of the land which subjects his body and goods to make this satisfaction, and is to be taken sub modo; that is, subject to such restraints and conditions as the lex fori, or general law of the land shall from time to time ordain and establish. Before the act of 1815, vendue masters’ debts stood upon the same-foundation as all other debts; but that act said, a ven-due master should not have the benefit of the insolvent laws. This formed no part of the original cati-tract, but it was a condition prescribed by a power over whom the debtor had no control, and which deprived him of that privilege. It was a condition of the lex fori, not of the lex contractus, and the same power which created this condition could take it awayj and when it was removed and taken away, then the parties were restored to their original situation, according- to the general-laws of the land. That the legislature has a power to pass laws to liberate debtors cannot at this time be a question. In the state of Rhode Island, they had no insolvent laws. The power was exercised by the legislature only. In 4 Wheaton 136, it is expressly laid down-that a state has a power to pass insolvent- laws. It was so determined by Judge Chase in Connecticut. Judge Wilson ruled the same point, and so did Judge Elsworth; and chief Justice Jay held that the power was inherent in the state legislatures to pass *97laws for the relief of insolvent debtors from perpetual imprisonment. In all these cases, it has beéti determined, that the passing of insolvent laws, does not of itself impair the obligation of contracts, but only amounts to a provision, which the wisdom of the nation or state has directed for thfe relief of a debtor from.punishment for non-performance of a contract, which a state may refuse to inflict, leaving the contract in full force and the debtor still liable upon it. The act in question does no more. In 1 JYott & M’ Cord’s Rep. 486, in our own courts, it is laid down that imprisonment for debt forms no part of the lex contractus.
In answer to the objection made, that the schedule was not died within 40 days after the original arrest, it is sufficient to say. that the defendant was deprived of the benefit of the act. It would have been a vain and idle thing for the defendant to have filed a schedule, as a preparatory step to his obtaining the benefit of the act, when the act of 1815 had expressly taken that privilege away from him; and the law will not impose it as a duty on any man to do a vain or idle thing. But as soon as the disability was removed, the schedule was filed preparatory to his making the present application.
After taking some time to consider, Bay, J. on another day delivered the following opinion.
In delivering my opinion, I shall not travel over all the grounds taken by the able and ingenious counsel on both sides of this case; but only refer occasionally to the principles urged and laid down in the cases relied upon on each side. As a preliminary position, however, to this investigation, I must premise that I admit the force of all the authorities quoted to shew that all laws ought to be prospective in their operation, and that where they are not so, or where they interfere with past transactions or contracts, they are inconsistent with the principles of sound legislation and void, as contended for on the part of the counsel for the plaintiffs. This, therefore, is ray answer to all that class of cases and author!. *98ties so Ably commented upon by the counsel who led in ep~ position to* this niotion upon that part of the present case. Having made this admission, 1 shall now proceed to examine the other material points insisted on in the-course of the argument. And the first and principal one was, that it was a partof the original contract, on the part of the defendant, that in addition to his obligation to pay the debt, that his body in case of failure should be perpetually imprisoned for it. Now to support such a contract as this, so hostile to civil liberty, if was surely incumbent on the gentlemen to shew some express .agreement by which defendant engaged to make this surren» der of.hjs liberty during the remainder of his life, or to produce some law to shew that such an agreement was, implied. But' no such- agreement on the part of the defendant, either wr.tten or parol, was produced. No agreement in writing signed by the party to that effect, nor any offer made to prove or substantiate any parol contract of the nature or kind .contended for; that branch of this supposed contract, therefore, must fail, as no express agreement has been brought forward to substantiate it. But, say the gentlemen; it is implied by law. And, here again, I must observe, that it was incumbent on them to shew in what part of the black lettered code, this implied or supposed contract was to be found. Surely it is not to be found in the Common Law, that noble and venerable system will warrant no such presumed construction. And if it was contained in any statutory re-*99gulatiotijit was equally incumbent'on them, to have brought it forward and have shewn it. As, however, no such implied con*100tract has been shewn to arise by implication or presumption either by the common or statute law, I am irresistibly brought to the conclusion, therefore, that this implied brands of this contract must fail, as well as the express part of it, which has been alleged. It appears to me, therefore, that this supposed engagement of the defendant to submit his body to perpetual imprisonment for debt, formed no part of the lex contractus, or original agreement. I do admit that when a man contracts a debt, that he contracts eo instanti, or comes under an obligation, to pay it or make satisfaction for it, and that this, obligation remains, till such satifaction is made: And this is the sum and substance of every such contract; indeed it is literally the lex contractus, both by the civil and common law. After this contract is made and entered into, then it is- to be governed and regulated by the lex fon, or the general laws of the land; one of which is, that if the debtor does not pay and satisfy the debt, the creditor has, a right to sue and im~ *101prison him. Then the humanity of the law steps in, and says to the creditor, although you have a right to imprison your debtor, in order to compel him-to make satisfaction, yet you shall not imprison him for life; he shall give you up all that he has as far as it will go, and upon his doing so, he shall regain his liberty, but at the same time the original contract shall remain unimpaired, so that any future acquisitions he may gain by his future industry, shall be liable to pay the debt for which he was imprisoned or such part as may be due after giving up 1iss all. Hence the origin of all bankrupt laws, and all insolvent laws; and they are founded in wisdom and justice as well as in the soundest policy. When a man has become insolvent by misfortunes in trade or otherwise and is confined in goal, it surely can answer no good or wise end to keep him immured within the four walls of a prison, where'he can make no efforts to satisfy his creditors or support his own family; he is rendered useless to himself, his family and his country. Is it not, therefore, wise and politic to restore such a man to his liberty, that he may devote his future life, to satisfy all those just and reasonable claims upon him and support a family dependent on him? Surely no man can deny it.
In the next place is to be considered the nature of the remedy in such cases by the lex fori of South Carolina. The act to establish the bounds of prisons in addition to the insolvent debtors act and for the relief of insolvent persons, (the act under which the defendant now applies for relief,) recites that “whereas humanity requires that.the confinement of persons on civil process should be less' rigorous than it has, hitherto, been,” It then goes on and enacts or prescribes the terms and the mode, and manner in which the insolvent debtor should apply for his release from gaol and the conditions upon which such release is to be obtained. It then declares that a man who shall honestly and fairly give up and surrender all his estate, real and personal, to his creditor or creditors, or so much thereof as shall be sufficient to satisfy the debt or- debts for which he may be confined, shall be, thence*102forth, discharged and set at liberty: With a proviso that any future property he may acquire shall be liable for the demand for which he bad been confined. Here then is the humane remedy which our legislature has provided against perpetual imprisonment, and which prescribes the terms upon which a man imprisoned may regain his liberty and once more be restored to society and his family. It at the same time expressly- guards against any interference, with the obligation of contracts, atad leaves them unimpaired, .and brings this act of our legislature within all the rules of construction laid down by chief justice Marshall in the case of Sturges' and Crowninshield, and in the cases decided by Judge Chasef Judge Wilson, Chief Justice Elsworth and Chief Justice Jay, which were quoted and relied upon by the counsel for the defendant. 4 Wheaton, 198. It cannot be denied that our legislature by the act of 1815, did suspend the operation of this humane and benevolent act against vendue masters, for reasons which, no- doubt, they thought sufficient to justify them in such suspension. But in the year 1S23, they thought proper to remove that suspension for reasons which induced them, ho doubt, to conclude that the suspension of the insolvent acts to that class of men, was unreasonable atad unjust: But this was no interference with the obligation of any contract any vendue master may have entered into. It l.eft all those contracts in the same state where the act of 1815 found them; and this is an inherent act of sovereign power which every, state has a right to exercise as it thinks proper. Chief Justice Marshall (4 Wheaton, 200,j says “the distinction between the obligation of a contract and the remedy given by the legislature to enforce the obligation of it, is founded in the-nature of things; without impairing the obligation of the contract, the remedy may certainly be modified as the wisdom of the state shall direct. 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 reíase to inflict this punishment, or withhold this *103means' and leave the contract in full force. Imprisonment is no part of the contract, and simply to release the prisoner, does not impair its obligation.” This opinion of so great a man, therfore, is to me conclusive as to the constitutionality of the late act, and proves beyond all doubt that it was no interference with the obligation of the defendant’s contract, which was left where'the. act of 1815 found it,'Unimpaired. This late act was only opening the door which had been closed against the defendant, and gave him permission to go out, if he thought proper to comply with the requisitions of the prison bounds act, and it did no more.
Tlie third and last ground which I shall observe upon, respects the filing of the schedule.
The act under which the defendant claims to be set at liberty, does to be sure require that a schedule of his property should be rendered in within 40 days after his arrest, otherwise he shall not be entitled to the prison rules or bounds prescribed by the act; but this only goes to deprive him of the- privilege of remaining within limits prescribed by the act. The neglect or omission does not deprive him of the final benefit of the act; for the 4th clause of the act gives him the privilege of rendering it in at any time during his confinement; and the filing the schedule in January, 1822, was a compliance with the 4th clause of the act, if it had been necessary in this case to rely upon it. But the argument made use of by the defendant’s counsel on that head was conclusive to my mind on the subject: viz, that it Would have been an useless and absurd thing, to have giyen in a schedule preparatory to his taking the benefit of the act, when he was *104absolutely deprived of the benefit of the act itself, The last schedule, however,- is strictly conformable to the act. .Upon the whole of this case, therefore, I am clearly of opinion, that the defendant is entitled to the benefit of the actj- and that this relief is neither unconstitutional nor against the obligation of the original contract.
From this decision the plaintiffs appealed on the ground»!
1st. That the act of 1823 is a prospective act, and cannot apply to the case, of a vendue master in custody under the general'law of the land and the special act of 1815.
2nd. That the law of 1815, under the sanction of the legislature, gave a special security for vendue transactions arising under it, which cannot be impaired by the act of 1823.
3rd. That the act of 1823 provides a special remedy for subsequent vendue contracts, and therefore should not be-so construed as to destroy an existing security without extending to the case of security newly provided.
4th. That no schedule was filed by the defendant, according to the special provision of the prison bounds act, and therefore he was not entitled to its benefit.
. 5th. That, if the law of 1823 acts retrospectively and destroys an existing security, it is, so far as it regards existing Contracts, under the laws of 1815, unconstitutional and void.
Argued, 28th Feb. 1825
Gadsden, for the motion.
The act of 1815 was not repealed until two years after these judgments were obtained. The act of-1823, is entirely prospective, and canno't operate upon rights acquired under these judgments. To give k any other construction would be a violation of all principles *105of sound legislation. 2 Dallas, 386, 396. Sturges vs. Crotvmnshield, 4 Wheaton, 135. 2 GalUson's Reports 139. In Dash vs. P"an Klech, 7 Johns. Reports 477, Judge Kent, says, laws criminal and civil must be prospective; and that a statute should not receive a construction which, would give it a retrospective operation, if capable of any other. This is a leading case, ably investigated. The case was an action for an escape, and the court held that the act should not extend to rights acquired by an escape, before the passing of the act. Shall we in. this case divest a right fixed by the judgments? To shew that it interferes here with vested rights, it is necessary to enquire into the objects of the act of 1815. It was intended to guard against the fraud and negligence of auctioneers. All their abuses amount to the one or the other of these. They are, in some sort, public officers; and for their privileges are justly subject to disabilities. As a security to the public, the legislature did not choose that his fraud or negligence should be investigated in every particular case. It was therefore considered as something criminal, and it formed a case of fraud, analogous to the exceptions under the insolvent laws, on the supposition that property is concealed, which may be extorted, by imprisonment. But without the motive it was considered as a just punishment. It formed a statutory fraud; as under the statute of frauds contracts are presumed 'fraudulent unless in writing. So a trustee can not buy the trust estate, as fraud will be presumed. The same in case of young heirs. In the faith of this security, the goods were sent to auction, and the defendants have been convicted of the fraud under the act. The plaintiffs have a right to keep the body till the goods are produce^- Suppose the case of an attachment from Chancery to enforce á decree; would not the release of the party attached interfere with vested rights? The act is certainly capable of prospective construction, and will you give it another? The legislature determined to *106yepeal the act of 1815, but they did not intend to do any thing unconstitutional. The act of 1823 provides that auctioneers shall give security to the city council. 'I he former provision was intended as a security. But a person already in jail could not be forced to give this. This secu. rity was intended for the protection of the employer and for the faithful discharge of the duty of the auctioneer. This very, question is decided in 4 Dali. 85.
As to the argument that these provisions belong to the lexjori, and not to the lex contractus: Suppose the insolvent laws were repealed, could a person be taken 'up who had been discharged?
King, on the same side
Submitted whether the act of . 1823,. was not intended to operate prospectively, and not to interfere, with existing obligations. The assumpsit was made after the law of 181.5; and the judgment, rendered before the repeal of the law, consummated their right to the security given by the act. This is different from other contracts, it is a breach of trust. Parties guilty of fraud áre not entitled to the insolvent laws. ' How would the court distinguish this from the case of attachment out of Chancery, to compel-the performance of a decree, which he had put it out of his power to perform? Would not equity give this remedy for this breach of trust?
Will the court say that they were deprived of one security., without- being entitled to the other? As to the ground, that.the.schedule was not.filed within forty days, he rpfe.rred to the act itself which required it, (2 Lrey. 158,160,) and to 2 <M‘ Cord 2.66.