Edmonson v. Ferguson

• Decision Date: 31 March 1848
• Parties: EDMONSON v. FERGUSON.
• Court: Missouri Supreme Court

11 Mo. 344

EDMONSON

v.FERGUSON.

Supreme Court of Missouri.

March Term, 1848.

ERROR TO ST. LOUIS COURT OF COMMON PLEAS.

MCBRIDE, J.

Ferguson instituted his action of trespass on the case on promises against Edmonson, in the Court of Common Pleas of St. Louis county. At the term at which judgment was rendered, the attorney for Edmonson filed his motion for a continuance of the cause, for the reason that the defendant was, at that time, a member of a volunteer company of this State, and absent in Mexico in the military service of the United States. The plaintiff admitted the facts stated in the motion, but objected to continuance for such cause, whereupon the court overruled the motion and entered judgment against the defendant, to which exception was taken, and the case has been brought here by writ of error, and a reversal of the judgment sought upon the ground that the court had no authority under the act of 13th February, 1847, to enter judgment against the defendant.

The act above referred to is found in the Session acts of the General Assembly of this State of 1846-7, p. 109, and provides: “That all process of any kind whatever, commenced or issued against the person or property of any volunteer of this State, engaged as such in any regiment or company of Missouri volunteers, and absent from the State on such service, be and the same is hereby suspended, until such regiment or company to which such volunteer belongs shall return home. That all suits in any court of this State, to which any volunteer, as aforesaid, may be a party defendant, shall stand continued until the return home of the regiment or company to which said volunteer belongs.”

The court below held the foregoing act to be void and inoperative, because it is repugnant to that clause in the Constitution of the United States, which inhibits the States from passing any law impairing the obligation of contracts.

If the act in question, be a violation of the Constitution, it is the duty of the courts, however disagreeable that duty may be, to declare it so. They are sworn to support the Constitution, and should they give force and effect to a legislative act contravening its provisions, they would be recreant to their duty and justly forfeit the respect and confidence of the people and bring distrust and reproach upon their office.

Is the act of the General Assembly of this State above referred to, violative of the Constitution of the United States? An exposition of that clause of the Constitution, supposed to be infringed, has called forth much learning and astuteness, whilst but little light has been reflected whereby to aid the courts in arriving at the true meaning and intention of the prohibition. The reason of this is, that the question has been too often mingled with the political party conflicts of the country, when the effort has been rather to establish certain dogmas than the ascertainment of truth.

We do not propose to enter at large into or labor this subject; but to our mind there is an obvious and long recognized distinction between the obligation of a contract and the remedy given by law for the time being, to enforce t. The one springs from the acts of the contracting parties, whilst the other is the creature of the legislative will. The remedy exists to enforce contracts. in most cases, prior to the contract, and contracts may be made in the absence of any remedy being prescribed by law. The obligation of a contract receives its inception at its execution; the remedy when the breach occurs. The right derived from the contract is transitory and accompanies the person every wh re; but the remedy is according to the law of the forum to which application is made, and must be in conformity to the rules prescribed by the laws of that country. See the following authorities: 5 Viner's Abr. title Contract and Agreement,...