
    Woodfin vs. Hooper.
    
    The right of a creditor to imprison the body of a debtor existing at the time of th-c formation of the contract is no'part of the contract. It is a remedy given by law for the enforcement of the contract and may be repealed. The legislature may vary the nature and extent of the remedies and prescribe the times and modes in which remedies shall be pursued. Yet have no power to abolish all the remedies existing at the time the contract was made, so as to leave the creditor no redress.
    Woodfin made an affidavit before the Clerk of the Circuit Court of Fayette county, on the 7th day of September, 1842, which set forth, that affiant had a good cause of action against G. W. Hooper, and that said Hooper had or was about to remove his property beyond the jurisdiction of the court. Upon this affidavit the clerk issued a capias ad respondendum against Hooper; he was arrested and executed a bail bond with surety for his appearance. The plaintiff excepted to the sufficiency of said bond at the return term, on the ground • that the said capias is that the defendant answer of a plea of trespass on the case, and the bond is to answer him of a plea of trespass. .The presidingjudge, Dunlap, sustained the exception and ordered that the sheriff, Hudspeth, be deemed and held special bail of the defendant.
    On the 16th day of January, 1843, the plaintiff recovered a judgment against the defendant for $86; on the 31st day of the same month Woodfin made an affidavit before the clerk that the defendant had since the commencement of the action removed his property beyond the jurisdiction of tho court, and demanded a ca. sa. This the clerk refused to issue. The plaintiff, thereupon, moved the court to order the cleric to issue the ca. sa. Dunlap, judge, overruled the motion and the plaintiff filed his bill of exceptions to the opinion of the court, and prayed an appeal in the nature of a writ of error which was allowed.
    
      J. C. Humphreys, for Woodfin.
    This case must be considered with reference to the remedy against defendant which the plaintiff had at the time the contract was made. What remedy did the law then give?
    He was entitled of right to an execution against the property immediately on the rendition of judgment in his favor, and wherever the act of 1831 applied (the act abolishing imprisonment for debt, except in cases of fraud) he could have an execution against the body. He could also where that act applied at anytime before judgment arrest the defendant upon a capias ad respondendum.
    
    Does the act of 1842 impair the remedy of the plaintiff thus defined? The answer must be in the affirmative. Execution against the body as a remedy to enforce satisfaction from the defendant, was of the greatest importance. It was not a punishment to be inflicted upon an unfortunate debtor who was unable to pay, but was by the act of 1831 limited to those cases where the defendant was able to pay but fraudulently contrived to defeat the payment, and in some of the cases mentioned in the act of 1831 the plaintiff had no other remedy. For instance, where the defendant had thousands of dollars in money but no visible property. Also the present case. The defendant is sued, and before judgment against him he removes his property to Texas.
    Suppose the defendant is about to remove his property, what remedy is the plaintiff entitled to before he has obtained judgment? The attachment laws do not apply.
    The defendant not being a non-resident, nor having absconded and left the State an attachment in Chancery would not lie. He is not a non-resident, nor has he removed, nor is he removing himself out of the county privately, nor does he so abscond or conceal himself that the ordinary process of the law cannot be served upon him, and so an attachment at law would not lie. And if an attachment at law would lie, the defendant could replevy the property attached by giving special bail, and the act of 1842 takes away the ca. sa, and the plaintiff’s remedy upon the bail bond is destroyed. But an attachment at law would not lie.
    This the law (existing at the time of the contract) supposed to be an effectual remedy. When the defendant has removed or is about to remove his property before judgment his body shall be arrested; and after judgment, as an execution against property would be utterly useless, the defendant shall be confined in jail until he doth the plaintiff that justice which he is fraudulently endeavoring to evade. The law not only supposes this to be an effectual remedy, but it provided no other for the case. It is a remedy that, until now, has prevailed in this State — that prevailed in every State whose jurisprudence is founded upon the law of England — that dates its origin to an act of Parliament, as ancient almost as tire common law itself, and its efficiency is sustained by proof as high, viz, the test of time and the wisdom of successive ages.
    Legislation in this State before the contract in question was made had restricted this remedy to cases where there could be no hardships in applying it, and as before shown to cases where it was the only appointed remedy. The defendant arrested could obtain his discharge upon motion to the court in term time, or upon habeas corpus in vacation where the grounds of his arrest were false, or mistaken, or insufficient, or by making a surrender of his property, and even a fraudulent defendant would escape imprisonment by giving sureties to keep within the jail liberties, the space of one mile square. But the act of 1842 abolishes this remedy in all cases.
    Does it provide a substitute? None whatever is given or proposed in the act. It abolishes the only remedy which defeats the fraudulent contrivances of the defendant to avoid performance of his contract. It abolishes a remedy which can only be obtained against such defendant, and differing from the act of 1831, which abolishes imprisonment for debt except in cases of fraud. Its effect, if not object, is to enable men to commit fraud.
    The law having sanctioned the contract, says Judge Haywood, in Townsend vs. Townsend, Peck’s Rep., promises performance. The law (he continues) is the source of the obligation, and the extent of the obligation is defined by the law in use at the time the contract is made, and the legislature cannot, as to remedies upon antecedent contracts, render them less efficacious or more dilatory than those ordained by the law in being at the time the contract was made, if such alteration be the direct and special object of the legislature apparent in an act made for the purpose.
    This opinion was delivered in relation to the act of 1819, which suspended execution upon judgments thereafter to be obtained for two years. But the act of 1842 suspends or abolishes the only efficient execution. in this case forever. Such too is the direct and special object of the legislature apparent in the act itself, and such is the special and direct object shown by reference to their authority, under the Governor’s message, to relieve and mitigate the misfortunes of the people, without losing sight of what is due to the honor, credit and character of the State.
    Again:, in the case of 'Fisher’s negroes vs. Dabbs, the Chancellor, whose opinion was adopted by the Supreme Court, said: “A distinction, between the right and the remedy is made, and exists; but where the remedy has attached itself to the right and is being prosecuted by “due course of law,” to separate them, and take away the remedy is to do violence to the right and comes within the reason of that provision of our constitution, which prohibits retrospective laws, or laws impairing the obligation of contracts, from being passed.”
    The principle of that case applies to this. The plaintiff’s remedy had attached itself to the right, and was being prosecuted by “due course of law.” The defendant had been arrested upon a capias ad respondendum, and gave bail. Exception was taken to the bail and entered of record, and the sheriff was fixed as the defendant’s special bail. Can the legislature by a retrospective edict deprive the plaintiff of the ca. sa., which is tb^ofeject of the capias to answer, ai^withoul which the capias to -answer is-nugatory? Can they talj&'^way the ca. sa. when the appointed means, to wit, the capias to answer, bail, • &c. have been prosecuted by “due-coursbmf law” to secure it?
    ^itself to the right? Is it >bf‘law”? Andean the Can the legislature by such subsequent law -deprive the pla-ifitiff of his remedy upon the- bail-bond? Can the legislature dissolve the contract of the Ba®ür discharge the sheriff wlio is- fixed by proceedings duly p$ffe'cuted under legal sanction? -Has not the remedy attach^ ,-$¡§rbáÍ¿g prosecuted by “due coj legislature now separate them?
    -, ^,T§y tjai&’act of 1842 the capias Mm^cspoiiEéndum executed upon 'the defeiMant is made nugatory p*$ne bail bond -is of no effect, and the entry of record, -fixinglhe sheriff as bail, is an idle entry upon the minutes of the court. The legislature by a retrospective edict, render these-proceedings, by which the plain-tiff had stopped his fraudulent debtor, frustrate.
    In the case of Fisher's negroes vs. -Dabbs, 6th Yerg. 119,-the Supreme Court held that the act. of 1831, ch. 101, directing the Chancellor to dismiss all bills filed- by -slaves by virtue of the act of 1829, ch. 29, and directing the clerks to send the record to the county court to be tried, was unconstitutional. The court were of opinion the County Court had no power finally to hear the cause in the form it would have-been presented, and, therefore, the act of 1831 was regarded by them as a naked mandate to the Chancellor to dismiss the bill, and they held it was retrospective and void.
    The ground of this decision was, that the remedy given by the act of 1829 was being prosecuted by “due course of law.” If it was unconstitutional to revoke the -remedy given and being-prosecuted in that case, it is so for a stronger reason in this case. The legislature were not bound to provide any mode of assenting to the will of the master manumitting his slaves. The act of 1829 provided the mode, and made the Chancellor deputy of the State, but gave no jurisdiction to him-to decide “a cause or suit between the slaves and the personal representatives of the testator.” The slaves then had no right iii relation to the object of that bill, viz, the assent of the State to their freedom until the act of 1829, and their bill filed under that act, gave it to them. In this case though, the plaintiff had a right — not a right granted by the legislature and to be prosecuted against the State — but a right -which neither the^State nor the legislature had any power to divest or destroy — a right which depended on contract — which existed against another member of the body politic, and in which the State had no concern except its duty under that provision of our constitution which requires that “all courts shall be open, and every man for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law, and right and justice administered without sale, denial or delay;” which, says Judge Haywood, in Townsend vs. Townsend, Peek, “relates to every possible injury a man may sustain, and includes the right to demand execution of a contract.”
    
      L. H. Coe, for the defendant.
    The question raised in this ease is, whether the act of the General Assembly of Tennessee, passed in November, 1842, abolishing imprisonment for debt is unconstitutional and void. It repeals all laws authorizing the issuance of a ca. sa.
    
    Does this law abolishing the ca. sa. impair the obligation of the contract between Hooper and Woodfin, or is it retrospective in its operation?
    A contract is an agreement to do or not to do a particular thing. Hooper’s contract was by a given day to pay certain monies to Woodfin; for his default to do so suit was brought.
    The act abolishing the power to issue a ca. sa. does not authorize the discharge of Hooper’s contract by the payment of a smaller sum, or at a different time, or in a different manner than the parties had stipulated; nor does it substitute for the contract of the parties, one which they never entered into, and to the performance of which of course they had never consented.
    In the sense of the constitution, any law which enlarges, abridges, or in any manner changes the intention of the parties resulting from the stipulations in the contract, necessarily impairs it. Story’s Ab. Com. Const. Law, 503. The contract itself between Hooper and Woodfin, it will not be.insisted, (or the obligation of the contract,) has been in any manner altered.
    The issue then is narrowed down to the simple question, does the repeal of the ca. sa. law abolish all remedies, so that there remains no means of enforcing the obligation of Hooper and no redress to Woodfin?
    I think it does not within the meaning of the constitution.
    The legislature may vary the nature and extent of remedies, so always that some substantive remedy be left. lb. 504.
    The remedy acts upon the broken contract and enforces a pre-existing obligation. And a State legislature may discharge a party from imprisonment upon a judgment in a civil case of contract without infringing the constitution, for this is but a modification of the remedy, lb. 504.
    So if a party should be in jail and give a bond for the prison liberties, and to remain atrue prisoner until lawfully discharged a subsequent discharge by act of the legislature would not impair the contract, for it would be a lawful discharge in the sense of the bond. lb. 504-5.
    A State may refuse to allow imprisonment for debt and yet the debtor may have no property. Ib. 502.
    The States have the right to regulate or abolish imprisonment for debt as a part of the remedy for the enforcement of contracts. Mason vs. Haile, 12 Wheaton, 370.
    . The court will not declare a law unconstitutional unless the opposition between the constitution and law be clear and plain. It is at all times a question of much delicacy which ought seldom if ever to be exercised. Fletcher vs. Pede, 2 Cond. R. 308.
    In Peck’s Rep. 17, will be found the definition of the word retrospective as used in our State constitution, to wit: “Thai no retrospective law which impairs the obligation of contracts, or any other law which impairs their obligation, shall be made, the latter words relating equally to both the preceding substantives; and, therefore, that the term retrospective alone, without the explanatory words, can have no influence in this discussion.”
   Turley, J.

delivered the opinion of the court.

In this case Woodfin, the plaintiff, sued out of the Circuit Court of Fayette, on the 7th September, 1842, a writ of capias ad respondendum against the defendant,- Hooper, which was served by the sheriff, and an insufficient bail bond taken for his appearance, to which the plaintiff excepted, and took such steps at the September term, 1842, of said court as to hold the sheriff responsible as appearance bail. At the January term, 1843, the plaintiff obtained judgment against defendant, and moved the court for a writ of ca. sa. thereon, which was refused by the court, and this writ of error is thereupon prosecuted.

The question presented and argued involves the constitutionality of an act of the last legislature abolishing the use of the writ of ca. sa. altogether. This act, the plaintiff argues, impairs the obligation of his contract made previous to its passage, and, therefore, can have no obligatory force in his case. This proposition is denied by defendant, and the weight of authority clearly sustains him. Mr. Story in his Treatise on the Constitution, page 503-703, says: “In the next place, what may properly be deemed impairing the obligation of contracts in the sense of the constitution? It is perfectly clear that any law which enlarges, abridges, or in any manner changes the intention of the parties resulting from the stipulations in the contract necessarily impairs it. The manner or degree in which the change is effected can in no respect influence the conclusion; for whether the law affect the validity, the construction, the duration, the discharge or the evidence of the contract, it impairs its obligation, though it may not do so to the same extent in all the supposed cases. 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 those which are a part of the contract, however minute or apparently immaterial in their effect, impair its obligation. A fortiori, a law which makes a contract wholly invalid, or extinguishes or releases it, is a law impairing it. Nor is this all; although there is a distinction between the obligation of a contract and a remedy upon it, yet if there arc cer-Lain remedies existing at the time when it is made, all of which are afterwards wholly extinguished by a new law, so that there remains no means of enforcing its obligation, and no redress, such an abolition of remedies operating inpraesenti is also impairing the obligation of such contract. But every change and modification of the remedy does not involve such a consequence. No one will doubt that the legislature can vary the nature and extent of remedies, so always that some substantive remedy be in fact left. Nor can it be doubted that the legislature may prescribe the terms and modes in which remedies may be pursued, and bar suits not brought within such periods and not pursued in such modes. Statutes of limitations are of this nature, and have never been supposed to destroy the obligation of contracts, but to prescribe the time within which the obligation shall be enforced by suit, and in default, to deem it either satisfied or abandoned. And a State legislature may discharge a party from imprisonment upon a judgment in a civil case of contract without infringing the constitution; for this is but a modification of the remedy, and does not impair the obligation of the contract. So if a party should be in jail and give bond for the prison liberty, and to remain a true prisoner until lawfully discharged, a subsequent discharge by an act of the legislature would not impair the contract, for it would be a lawful discharge in the sense of the bond.” This is stating the law very strongly for the defendant, and the Commentator’s is a name of great weight in the law; and his propositions are fully sustained by adjudicated cases. In the case of Sturges and Croioninshield, 4th' Cond. Rep. 410, it was adjudged by the Supreme Court of the United States, “that the right to imprison a debtor is no part of the contract, and he may be released from imprisonment without impairing its obligation.” In the case of Mason vs. Hale, 6th Cond. Rep, 535, it is held, “that the States have a right to regulate or abolish imprisonment for debt as a part of the remedy for enforcing the performance of contracts.” We are, therefore, of the opinion that our act of the legislature abolishing the use of the writ of ca. sa. is a ¿ood and valid act; and that the Circuit Judge committed no error in refusing the motion of the plaintiff in this case, and dismiss the appeal.  