And, in such case, the defendants having put in evidence the testimony of the subscribing witnesses to the will, given when it was admitted to probate, it then devolved upon the plaintiff to show the incompetency of the testator, by proof sufficient to overcome the primâ facie case made through the testimony of the subscribing witnesses: Id. It is no objection that the attesting witnesses to a will were not present when it was sigued by the testator; provided he acknowledged it as his will and requested them to sign as witnesses: Id.

WITNESS.

Competency of Persons Parties to the Suit-Construction of Act of 1867.—In a suit to set aside the probate of a will, on the ground of mental incapacity of the testator at the time of making it, two persons were offered as witnesses who were defendants in the suit and devisees under the will. It was objected, on the part of the plaintiffs, that these persons could not be sworn as witnesses, being incompetent as such under the 2d section of the Act of 1867, which objection was overruled, and the parties allowed to testify. Held, that in this, the court committed no error; that under this act, these parties were competent witnesses as to facts occurring after the death of the testator; that it was proper to allow them to be sworn, and that plaintiff should then have objected to questions relating to matters not occurring since the testator's death: Holloway et al. v. Galloway et al., 51 Ills.

LIST OF NEW LAW BOOKS.

ATTORNEY'S BUSINESS DOCKET, Embodying a System of Bookkeeping, Record Entries, and Paper Filing, especially designed for attorneys. 1 vol., 200 pp., for 200 cases. Springfield, Ill.: E. L. & W. L. Gross; New York: Baker, Voorhies & Co. $3.

ENGLISH CHANCERY REPORTS.-Reports of Cases in the English Courts of Chancery. With notes and references to English and American decisions. By CH. FRANCIS STONE. Vol. 44, containing Hare's Chancery Reports, vol. 10. New York: Banks & Bros., 1871.

LANSING. Reports of Cases in the Supreme Court of New York. By A. LANSING. Vol. 2. New York: Banks & Bros., 1871.

NEW YORK.-Reports of Cases in the Court of Appeals. By SAMUEL HAND. Vol. 42. New York: Banks & Bros., 1871.

NORTH CAROLINA.-Reports of Cases in the Supreme Court. By S. F. PHILLIPS. Raleigh: Nichols & German. Shp. $8.

STORY.-Commentaries on the Law of Bailments. By JOSEPH STORY, LL.D. 8th ed. Revised, corrected, and enlarged by EDMUND H. BENNETT. Boston: Little, Brown & Co. Shp. $7.50.

SWEENY.-Reports of Cases in the Superior Court of the City of New York. By JAMES M. SWEENY. Vol. 1. New York: Banks & Bros., 1871. VIRGINIA. Reports of Cases in the Supreme Court of Appeals. By P. R. GRATTAN. Vol. 19. Richmond: C. A. Schaffter, 1870.

THE

AMERICAN LAW REGISTER.

MARCH, 1871.

HOMESTEAD AND EXEMPTION LAWS OF THE
SOUTHERN STATES.

(Concluded from the January Number.)

II. THE CONSTITUTIONALITY, CONSTRUCTION, AND EFFECT, OF HOMESTEAD AND EXEMPTION LAWS.

THE first question for our consideration is, Are the Homestead and Exemption Laws of the Southern States unconstitutional? Do they impair the obligation of contracts?

The Constitution of the United States declares that "no state shall pass any law impairing the obligation of contracts."

"In discussing this question," says Chief Justice MARSHALL, our first inquiry is, into the meaning of words in common sense. What is the obligation of a contract? and what will impair it? * ** A contract is an agreement in which a party undertakes to do, or not to do, a particular thing. The law binds him to perform his undertaking, and this is, of course, the obligation of his contract. *** Any law which releases a part of this obligation, must, in the literal sense of the word impair it. Much more must a law impair it, which makes it totally invalid and entirely discharges it" Sturges v. Crowninshield, 4 Wheat. 197.

What does the term "obligation" in this clause, include? The importance of the question rests mainly on the distinction which has been drawn between the laws of a state which were in force at the time when the contract was made, and those which are (137)

subsequently enacted. The latter may certainly impair this "obligation," while the former, as it is contended, certainly cannot, because all existing laws enter into contracts made under them and define and determine that contract. Those who hold to the distinction maintain, that the "obligation" of the contract consists in the municipal law existing at the time the contract is made, 4 Wheat. 122, Ogden v. Saunders, 12 Wheat. 250, 259, 302, 318, or perhaps in a combination of the moral, natural, and municipal law, 12 Wheat. 281, while those who deny the distinction, insist that the "obligation" consists in the universal law of contracts, which is unaffected by municipal law, and is not itself conferred or created by positive law, but derived from the agreement of the parties: Pars. on Cont., vol 3, p. 555.

"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:" 1 Bouv. Law Dic. 652, and authorities cited.

When parties enter into a contract, which the plaintiff seeks to enforce, what is the legal obligation of the defendant? His legal obligation is to perform his contract, as the law of the land, applicable to that contract, requires him to perform it, at the time it was made. That is the extent of his legal obligation to the plaintiff, and just to that extent the plaintiff has the legal right to have it performed, in order to maintain the integrity of the legal obligation of the defendant's contract. 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 compulsion" Vattel 62. The defendant's obligation to perform his contract, under the then existing law, was perfect, and the plain

tiff's right to have that obligation performed as prescribed by that existing law, was also a perfect right: Aycock v. Martin, 37 Ga. 128.

What is the rule as declared by the Supreme Court of the United States, in two of the latest decisions made by that court, upon a careful review of all the prior adjudications made by that tribunal, in regard to what constitutes the obligation of a contract?

In the case of McCracken v. Hayward, 2 How. 612, the court says: "The obligation of a contract consists in its binding force on the party who makes it. This depends on the laws in existence when it was made; these are necessarily referred to in all contracts, and forming a part of them, as the measure of the obligation to perform them by the one party, and the right acquired by the other, hence any law, which in its operation amounts to a denial, or obstruction of the rights accruing by a contract, though professing to act only on the remedy, is directly obnoxious to the prohibition of the Constitution." Again the court says: "The obligation of the contract between the parties in this case, was to perform the promises and undertakings contained therein; the right of the plaintiff was to damages for the breach thereof, to bring suit and obtain a judgment, to take out and prosecute an execution against the defendant till the judgment was satisfied, pursuant to the existing laws of Illinois. These laws, giving these rights, were as perfectly binding on the defendant, and as much a part of the contract, as if they had been set forth in its stipulations in the very words of the law relating to judgments and executions."

In the case of Van Hoffman v. The City of Quincy, 4 Wallace 550, decided in 1866, the court, after reviewing and commenting upon the previous adjudications made upon this question in the Supreme Court of the United States, says: "It is also settled, that the laws which subsist at the time and place of the making of a contract, and where it is to be performed, enter into, and form a part of it, as if they were expressly referred to, or incorporated in its terms. This principle embraces alike those which affect its validity, construction, discharge, and enforcement." Speaking of the distinction between the obligation of the contract and the remedy, the court says: "The doctrines upon that subject, by the latest adjudications of this court, render the distinction one rather of form than substance. A right without

a remedy is as if it were not. For every beneficial purpose, it may be said not to exist. A different result would leave nothing of the contract but an abstract right of no practical value, and render the protection of the Constitution a shadow and a delusion. Nothing can be more material to the obligation of a contract than the means of enforcement. Without the remedy, the contract may, indeed, in the sense of the law, be said not to exist, and its obligation to fall within the class of those social duties which depend, for their fulfilment, wholly upon the will of the individual. The ideas of validity and remedy are inseparable, and both are parts of the obligation, which is guaranteed by the Constitution. against invasion:" Van Hoffman v. The City of Quincy, 4 Wall. 554. In Green v. Biddle, 8 Wheat. 1, the Supreme Court of the United States, thus states the rule in regard to laws impairing the obligation of contracts: "The objection to a law on the ground of its impairing the obligation of a contract can never depend upon the extent of the change which the law effects in it. Any deviation from its terms, by postponing, or accelerating the period of performance which it prescribes, imposing conditions not expressed in the contract, or dispensing with the performance of those which are, however minute, or apparently immaterial in their effect upon the contract of the parties, impairs its obligation." See also The Justices of Morgan Co. v. Sparks et. al., 6 Ga. 439; Winter v. Jones, 10 Ga. 195.

In 1843 in the case of Bronson v. Kinzie, 1 How. 316, 317, Chief Justice TANEY (concurred with by the whole court, except Justice MCLEAN), says: "Whatever belongs merely to the remedy, may be altered according to the will of the state, provided the alteration does not impair the obligation of the contract. But if that effect is produced, it is immaterial whether it is done by acting on the remedy or directly on the contract itself. In either case it is prohibited by the Constitution. It is difficult, perhaps, to draw a line that would be applicable in all cases, between legitimate alterations of the remedy, and provisions which, in form of remedy, impair the right. But it is manifest that the obligation of the contract and the right of the party under it, may, in effect, be destroyed by denying a remedy altogether, or may be seriously impaired by burdening the proceedings with new conditions and restrictions, so as to make the remedy hardly worth pursuing. And no one, we presume, would say there was