MARIA BEESON vs. JOSEPH BEESON'S ADMINISTRATORS, 1 Harr. 466

Harrington, Justice. “The judgment in this case was entered by the prothonotary without any declaration or appearance; by virtue of a bond and warrant of attorney in the usual form, and under the authority as it is contended of the act of assembly of 1830.

That act makes it the duty of the Prothonotary “on the application of the holder of a bond in which judgment is confessed, or containing a warrant for an attorney at law or other person to confess judgment; to enter judgment against the person or persons who executed the same, for the amount which from the face of the instrument may appear to be due, without the agency of an attorney or declaration filed, with such stay of execution as may be therein mentioned, for the fee of one dollar to be paid by the deft., particularly entering on his docket the date and tenor of the instrument of writing on which the judgment may be founded, which shall have the same force and effect as if a declaration had been filed and judgment confessed by an attorney or judgment obtained in open court and in term time,” &c.

The present application to set aside this judgment proceeds on the ground—First. That it is not authorized by, nor in conformity with the act of Assembly; and Second—That the act of assembly is unconstitutional, because it varies the contract of the parties and impairs its obligation. The question arising upon this rule is one of great consequence in principle, as it involves an inquiry by one branch of the government whether another and co-ordinate branch has not exceeded its legitimate powers; and it is of much consequence in its immediate results in the case before us and many others similarly situated.

And, though the court will act with delicacy and much deliberation in determining whether

an act of the Legislature shall be received and regarded as the law, binding upon them and binding upon all, or shall be treated as a nullity;—yet it is the right, and it is the duty of the judiciary to bring all acts of the legislative department to the test of the constitution, and keep them within the limits of its just authority.

For though it be the law making power, there are limits to the exercise of this power; though it give law to the judiciary and to all other departments, it is not omnipotent, but derives its power subject to specified restraints, from the paramount law, the constitutions first of the United States and then of this State.

And it belongs to the judiciary to decide whether these restraints have been disregarded, or in any manner violated; for, independant of the absurdity of leaving it to the legislature to decide upon the qualifications to their own power, it is the province of the courts to declare what is the law, and they cannot recognize and give the force of law to such acts of the legislature as are contradictory to and inconsistent with the law paramount.

By the constitution of the United States the several States are restrained from passing any “law impairing the obligation of contracts.” This is one of the restrictions on legislative power; and it is one which has given rise to much discussion and which has frequently been the subject of judicial

interpretation. We are now to consider its operation on this case. Is it violated by our act of assembly? Does that act by authorizing a prothonotary of the court to enter judgment on such a bond and warrant of attorney as this, impair the obligation of this contract?

The contract is a bond for $2000—con-, ditioned to be void on payment of 1000; with a warrant of attorney appended,, authorizing (in the usual form) any attorney in any.court of record in the State of Delaware or elsewhere, to appear for the obligor at. the suit of the obligee, and after one or more declarations filed for the said penalty thereupon to confess judgment to the said •obligee, &c.

Has the legislature the power to vary the mode of entering judgment on such a bond; to direct another person than an attorney to enter the judgment, without appearance or declaration, and docs such direction impair the obligation of the contract? The true import of these words in the constitution has been settled by judicial construction in several cases. They have not been taken in their literal and fullest extent, but restrained by what was supposed to be the spirit and intent of the provision, and in conformity with public policy. In the case of the Farmers’ and Mechanics’ Bank vs.

Smith, the supreme court of Pennsylvania say, “when multitudes are affected by the construction of an instrument, great regard should be paid to the spirit and intention. If the words impairing the obligation of contracts are to be understood in their greatest extent, the consequences are alarming.

For all acts respecting divorce, all acts of limitation, all acts by which private property has been taken for public use or for the use of chartered companies for roads, canals, &c. would be void, because in all these cases contracts are impaired.” A distinction has been taken and isestablished between a law impairing the obligation of a contract and a law modifying the remedy for enforcing the contract. It is recognized by the supreme court of the United States in Sturgis vs. Crowningshield, (8 Wheat. 1.) and indeed it is upon this distinction that insolvent laws and acts of limitation are sustained.

And yet it is not very clear to my view. If there be a contract for the payment of money, the means of enforcing the performance of that contract are of the very essence of the contract and constitute its obligation. A limitation law wholly takes away my remedy, and not only impairs but destroys my contract if I do not sue in the prescribed time. An insolvent law deprives me of my remedy against the person of my debtor; yet in the one case, the contract imposes an obligation of payment unlimited as to time; and in the other, confers the right of taking the debtor’s person in execution.

If from public policy—the quieting of suits—the relief of honest-but unfortunate debtors and consequent encouragement of industry and enterprise; or from a supposed conformity with the spirit and intention of the constitution, the highest tribunals in the country have so construed this restriction on the legislature as to still leave them this extensive power over the remedies for enforcing a contract, can it be doubted that the legislature is competent to direct the manner in which judgment shall be entered on a bond itself authorizing the entry of a judgment?

Another distinction has been taken equally important in its bearing on this case, and that is betxveen the prospective and retrospective .operation of laws varying or qualifying contracts. It has been •said that the constitutional restriction was merely designed to prevent the states from the manifest injustice of taking away vested rights and impairing existing contracts; and that it was not designed to prohibit the states from making any prospective regulations in relation to the form, remedy or obligation of contracts.

That the contract made subsequent to the law is made in reference to the law and subject to it, and adopts its provisions as a part of the contract itself. The parties themselves knowing the law in reference to the subject matter of their contract are bound to conform themselves to it, and not by their individual will to repeal the law of the land. Thus in Blanchard vs. Russel (l3 Mass.

R. 1.) Chief Justice Parker says “a law which is in force when a contract is made cannot be said to have that effect (of impairing the obligation of contracts;) for the contract being made under the law is presumed to be made in reference to it and the parties are legally conusant of it at the time. The contract in such case is not impaired by the law, for the law is a part of the contract.” In Mather vs. Bush, (16 Johns.

Rep. 246.) Spencer, Chief Justice recognizes the same law. “It cannot be controverted (says he) that the parties to a contract are to be deemed conusant of the laws which regulate, control or affect their contracts; and in construing a contract for the payment of money, thus entered into, it must be understood in reference to any existing law which bears upon it, and may modify or control it.” Now-before the contract in this case was entered into there existed a law of this state authorizing the Prothonotary, on the application of the holder of a bond containing a warrant to an attorney at law or other person to confess judgment, to enter judgment on such bond.

With a knowledge of the law, and subject to it, the parties entered into a contract containing precisely such a warrant of attorney, they brought themselves within its operation and are bound by it. How can it be said that the law impairs the obligation of this contract; the principle contended for would make the contract repeal the law. On the contory the law becomes a part of the contract as much so as if its provisions were inserted in it.

And there is no such absurdity as was supposed in the argument that the legislature should appoint an agent to appear and act for another without his consent, or should substitute one agent for another of the party’s own choosing; the prothonotary acts not as the agent of the party but of the law, the officer of the court authorized by the constitution (art 6 sec. 23,) “to enter judgments according to law and the practice of the court.” It is as much a clerical act on the part of the prothonotary as when he signs a judgment for want of a plea, the one being done by the express directions of the law, and the other under the rules and practice of the court, and both equally authorized by the constitution.

If I am right then in the opinion I have formed that this act of assembly is constitutional, it remains to be considered whether the entry of this judgment is so defective in point of form as to require that the court shall set it aside or treat it as a nullity.

The act directs the prothonotary to enter the judgment “for the amount which from the face of the instrument may appear to be due”—“with such stay of execution as may be therein mentioned”—“particularly entering on his docket the date and tenor of the instrument of writing on which the judgment may be founded.”—Though this act is loosely drawn it is sufficiently apparent from it that whatever may be the legal import of its terms, their spirit and intention require only a statement of the import or substance of the bond.

The specification of the date is entirely conclusive that the word tenor was not used in its strictly technical sense, but in its common and usual signification. And, though I would not run into loose conjectures about the intention of the legislature, I cannot reject a plain indication of intention if it was even contrary to the usual meaning of the words. But in this case it is not. Tfie word used has two meanings and it is evident that the legislature used it in that sense in which it is commonly used.

We have seen also that even in the construction of constitutional law the courts do not hold themselves confined to the letter but will look beyond it to the intent and spirit. And the plainest rules for the construction of legislative enactments direct our search not only into the spirit of the law but into the object and motive of the legislator. This law discloses its object. ^ It was to avoid the necessity of employing an attorney at law to confess judgment in the case of a bond and. warant of attorney in the common form.

The necessity of employing an attorney for this purpose is held out in the law as an evil —it was the mischief to be remedied—and the remedy applied is in authorizing the prothonotary to enter the judgment without the intervention of an attorney. Could it be supposed, even if the words of the law did not forbid such a construction, that they intended in the use of the word tenor to surround this remedy with such a form of technical precision as to make it inoperation or only to be used at the greatest hazard.

The object was to facilitate the entry of judgments; this construction would greatly increase the difficulty requiring as it does of the clerk a precision not before required either of attorney or clerk; and making the consequences of neglect in the slightest particular fatal to the judgment. But I rely chiefly on the words of the law without resorting to this inference, though I should be authorized to do so if necessary.

I cannot understand the word tenor to mean a literal copy of the bond without rejecting the word date which has a suitable and sensible meaning if tenor be construed to mean the import or substance. On the whole, though I consider the entry of this judgment very informal and loose, I cannot say that it is not a substantial compliance with the act of assembly; and I am for discharging the rule. Robinson, Justice, concurred.