Aycock, et al., vs. Martin, et al. [No. 1.] WILLIAM L. AYCOCK, sheriff, plaintiff in error, vs. WILLIAM N. MARTIN, administrator, etc., defendant in error. [No. 2.] JOHNSON F. CUNNINGHAM, sheriff, plaintiff in error, vs. WILLIAM A. CALCLOUGH, defendant in error. [No. 3.] ALEXANDER B. HENDRY, plaintiff in error, vs. JOHN MCK. GUNN, sheriff, defendant in error. [No. 4.] PETER A. HEARD, and TOWNS, sheriff, plaintiffs in error,. vs. A. B. JONES, executor of JOEL D. NEWSOм, defendant in error. The obligation of a contract is a legal not a mere moral obligation; it is the law which exists at the time the contract is made, which binds a party to perform his undertaking. The obligation does not inhere in the contract itself proprio vigore, but in the law applicable to the contract. The act of 13th December, 1866, commonly known as the staylaw, held to be unconstitutional and void, on the ground that it impairs the obligation of contracts within the prohibition of the constitution of the United States, and the constitution of the State of Georgia. WARNER, C. J. HARRIS, J., concurs in the above, and decides further: That the 4th section of said act is an interference with the execution of the judicial process of the Courts by the officers of the Courts, and is therefore violative of those clauses of the constitution of Georgia distributing the powers of the government among the three departments thereof, and prohibiting the exercise by the Legislature of any of the powers belonging to the Judiciary. And further; that the Legislature has no power to alter or modify any judgment of the Superior Courts of this State, or by law to arrest or suspend the enforcement of such judgments. A stay-law is constitutional. HARRIS, J. WALKER, J., dissenting. Stay-laws. No. 1 by Judge MILNER, in Bartow Superior Court, September Term, 1866. No. 2 by Judge WILLIAM M. REESE, Oglethorpe Superior Court, April Term, 1867. No. 3 by Judge CLARKE, Randolph Superior Court, May Aycock, et al., vs. Martin, et al. Term, 1867. No. 4 by Judge WARNER, Troup Superior Court, May Term, 1867. [No. 1.] Aycock, as sheriff, was ruled for not making the money on a fi. fa. (issued upon a mortgage made the 7th day of May, 1859, for $790.00 principal, $406.00 interest and costs). He showed for cause, that the stay-laws prevented a levy. The Court held this showing insufficient, and granted a rule absolute against him, and he excepted. [No. 2.] Calclough held a judgment against Burnett Moore, obtained in 1860. In 1865 the fi. fa. thereon was levied on land. In three days after this levy, Calclough's attorney, thinking the levy was void by the stay ordinance, had the same dismissed. In October, 1866, the plaintiff made affidavit that the executrix of Moore, (who was then dead,) "has since the issuing of said fi. fa., to-wit, on or about the first day of January, 1866, removed property which was and still is subject to said fi. fa., to-wit, sixteen bales of cotton worth $2,000.00, and one horse worth $100.00, the said removal having been to points beyond the boundaries of the county of Oglethorpe." This affidavit was delivered to the sheriff on the 18th of October, 1866, with instructions to make the money on the fi. fa. On the 31st October, 1866, the executrix made her affidavit that "she did not, on or about the 1st January, 1866, remove any property, as said Calclough has sworn in his affidavit," and that "she has never moved any other property at any time with fraudulent intent, nor to avoid the payment of her just debts as executrix as aforesaid." She also filed the affidavit of poverty, authorized by the stay act of March, 1866. Upon a rule against Cunningham to show cause why he had not collected the money, etc., he showed the facts aforesaid and nothing more. The Court granted a rule absolute against him, requiring him to pay plaintiff his money due on said fi. fa. Aycock, et al., vs. Martin, et al. [No. 3.] Hendry brought two actions of trespass, one against Gunn, and the other against Gunn and one Brooks. The alleged trespasses were the levy of fi. fas. against Hendry, on his property, which fi. fas. were bottomed on notes made in 1863, and which he averred were stayed by law. These two actions were demurred to and by consent argued together. The demurrers were sustained, and plaintiff excepted. [No. 4.] Joel D. Newsom obtained a judgment upon a promissory note, against Peter A. Heard, and therefrom was issued a fi. fa., returnable to May Term, 1863, of the Superior Court of Troup county. Newsom died, and Jones became his executor. The sheriff did not make the money on the same, because of "the stay-law." Upon this being brought to the attention of the Court at May Term, 1867, by a rule against the sheriff, the following order was passed: "JOEL D. NEWSOM vs. PETER A. HEARD. "Fi. fa. returnable to Troup Superior Court. May Term, 1863. Principal $1,238.50; interest to judgment $164.23. "On motion of counsel for Andrew B. Jones, executor of Joel D. Newsom, the plaintiff, it is ordered that the sheriff do proceed to raise the money on the above fi. fa., as required by the terms thereof, and that he make return of his actings and doings thereon to the next term of this Court." The plaintiff in error says this order was wrong because of the statute of 13th December, 1866, known as the stay-law, and brings it up for review. Nos. 1 and 2 were argued at June Term, 1867, and held under advisement. Judge WARNER having decided the Jones case below, and being Chief Justice when Nos. 2 and 4 were heard, the Judges agreed that instead of writing out opinions seriatim in each case, WARNER, C. J. should write out the opinion of the Court in No. 4, that HARRIS, J. should write out the opinion in the others, and that WALKER, J. should dissent in one opinion applicable to all. Aycock, et al., vs. Martin, et al. WOFFORD, PARROTT & COXE,' in No. 1, MATHEWS & REID, in No. 2, H. FIELDER, in No. 3, B. H. BIGHAM, in No. 4, for plaintiffs in error. WARREN AKIN, in No. 1, LINTON STEPHENS in No. 2, A. HOOD, in No. 3, B. H. HILL, in No. 4, for defendants in error. Others appeared pro and con, but their names are not shown by the dockets. WARNER, C. J. The question made by the record in this case, involves the constitutionality of the act of the Legislature passed on the 13th December, 1866, commonly known as the "stay law." The Constitution of the United States declares that "no State shall pass any law, impairing the obligation of contracts." The Constitution of the State of Georgia declares, that "ex post facto laws, laws impairing the obligation of contracts, and retroactive laws, injuriously affecting any right of the citizen, are prohibited." The Constitution of the State of Georgia further declares, that "legislative acts in violation of the Constitution are void, and the judiciary shall so declare them." Thus it will be seen, that if the act of 13th December, 1866, is in violation of the Constitution of the United States, and the Constitution of the State of Georgia, or either of them, then this Court is bound so to declare, by its judgment, under the most solemn obligations that can be imposed; indeed, it has no discretion in the matter but to obey the stern mandate of the supreme law of the land. The first inquiry, therefore, which is presented for our consideration and judgment is, does the act of the Legislature of the 13th December, 1866, impair the obligation of the contract between the parties in this case, as prohibited by the Constitution of the United States? The Constitution, it will be perceived, does not prohibit the States from passing laws impairing contracts. The prohibition is expressly directed against laws which impair the obligation of contracts. What is the obligation of a contract as contemplated by the Consti Aycock, et al., vs. Martin, et al. tution? "The obligation of a contract is a legal, not a mere moral obligation: it is the law which binds a party to perform his undertaking. The obligation does not inhere or subsist in the contract itself, proprio vigore, but in the law applicable to the contract." 1st Bouvier's Law Dictionary, 652, and authorities there 'cited. When the parties entered into the contract now before the Court which the plaintiff seeks to enforce, what was the legal obligation of the defendant? His legal obligation was, to do and perform, just what the laws of the land, applicable to the contract, required him to do and perform, at the time the contract was made, in accordance with its terms and stipulations: that was the exact measure of his legal obligation at the time the contract was made; nothing more, nothing less. The defendant's legal obligation was to perform his contract, as the laws of the land, applicable to that contract, required him to perform it, at the time it was made. That was the extent of his legal obligation to the plaintiff, and just to that extent the plaintiff had the legal right to have it performed, in order to maintain the integrity of the legal obligation of the defendant's contract. If it was not the existing law of the State, applicable to the contract at the time it was made, which created and defined the defendant's legal obligation to perform it, in accordance with its terms and stipulations, what is it that does create and define his obligation to perform it? If there had been no existing law applicable to the contract, prescribed by the supreme power of the State, at the time it was made, creating and defining the defendant's obligation to perform it, then he would have incurred no other than a mere moral obligation, over which human tribunals have no jurisdiction. It therefore necessarily follows, that the existing law applicable to the contract, prescribed by the supreme power of the State, at the time the contract was made, creates and defines the defendant's legal obligation to perform it, in accordance with its terms and stipulations. "A perfect right is that which is accompanied by the right of compelling those who refuse to fulfil the correspondent obligation. A perfect obligation is that which gives to the opposite party the right of compul |