Columbia, January, 1867. Assembly, and in this way arrested the progress of actions instituted under the previously-existing laws and rules of procedure to enforce the performance of contracts, and held them suspended for a period of twelve months, was "at variance with the article of the Constitution of the United States which prohibits a State from passing any law impairing the obligation of contracts," and "consequently inoperative and void." From the examination which has been herein made of the statute now under consideration, it has been seen that it differs from the former only in this, that it arrests the action at a somewhat later stage of its progress, and suspends it for a shorter period of time. The former Act seized the hand of the Sheriff, the Court's executive officer, and held it back for twelve months, so as to delay for that period the service of process only in actions, the causes of which are the special objects of this constitutional protection. The latter "occludes," shuts up and locks the Court itself, as against the same class of actions and no other, after service, for six months, thus delaying for that interval the progress of the suit. In each case the legislation, which is excepted to, seeks directly and authoritatively to diminish the promptness with which the means theretofore furnished by law for compelling the performance of contracts operated, and forcibly to subject the rights and interests of the creditor to all the perils incident to the consequent delay; it reduces the constraining power of the law by lessening the vigor of its action, and to this extent takes off the pressure upon the will of the debtor which was obliging him to the fulfilment of his promise: in its actual and direct operation it "impairs," enfeebles, relaxes "the obligation," the compulsory efficiency which the existing law had communicated to the contract, and which had been already called into action. And this effect of the legislation has not the excuse that it is merely a necessary and inseparable incident of a general and permanent change thereby wrought in the law of procedure. On the contrary, it is itself Wood vs. Wood. the principal, nay the only change in the existing law. It is not even so much as that; it is but a temporary suspension of the law. It is the judgment of this Court that the provisions of the Act of September 21, 1866, entitled "An Act to alter and fix the times for holding the Courts of Common Pleas in this State," in so far as they postpone the return of writs and other process in actions ex contractu, returnable to Fall Term, 1866, until the Spring Term, 1867, and suspend the trial of and other proceedings in such actions at the said Fall Term, and until the said Spring Term, where the causes of action were in existence at the date of the ratification of the said Act, are repugnant to the tenth section of the first article of the Constitution of the United States, and to the second section of the ninth article of the Constitution of this State, which prohibited the passage of any State law impairing the obligation of contracts, and are, therefore, inoperative and void; and that all proceedings in such actions ex contractu may go on as if the said Act had not been passed. DUNKIN, C. J., GLOVER and MUNRO, J. J., LESESNE and JOHNSON, C. C., concurred. MOSES, J., dissented. CASES AT LAW ARGUED AND DETERMINED IN THE COURT OF APPEALS OF SOUTH CAROLINA, Columbia—April and May Term, 1867. JUSTICES PRESENT. HON. BENJ. F. DUNKIN, Chief Justice. CC DAVID L. WARDLAW, Associate Justice. THE STATE vs. ELI THOMAS AND OTHERS. Cow-Stealing-Repeal of Statute. The Act of 1789, so far as it punishes the stealing of cattle below the value of twenty dollars, has been repealed by the Act of 1866, making the simple larceny of goods, below the value mentioned, petit larceny and a misdemeanor. One cannot therefore be now punished for stealing a cow where the offence was committed before the Act of 1866 was passed, and the value of the cow is alleged and proved to be below twenty dollars. BEFORE JOSEPH BLYTH ALLSTON, ESQ., DISTRICT JUDGE, GEORGETOWN, 1867. This case will be sufficiently understood from the opinion delivered in the Court of Appeals. Wilson and Dozier, for appellants. State vs. Thomas. The opinion of the Court was delivered by WARDLAW, J. The defendants were indicted for stealing, in August, 1866, a cow, of the value of fifteen dollars, cont. form. stat. They have been found guilty; the indictment is unexceptionable; the proof seems to have been sufficient; the apparent uncertainty, produced by a general verdict of guilty, when one of the persons charged in the indictment had not been. arrested and was not on trial, has been removed by the report of the District Judge, and we must suppose is corrected by proper entries in the journal of the Court-but is there now. any law under which judgments of punishment can be awarded against the convicts? The stealing of a cow, of value above twelve pence, was at common law grand larceny, punishable for the first offence by branding, and for a second offence by death. An Act of 1789, (5 Stat. 139, § 2,) carrying out a policy indicated in previous Acts of 1704 (2 Stat. 261) and 1768, (4 Stat. 284,) altered the punishment by imposing upon the offender a fine, and if that was not paid the alternative of whipping. An Act of December, 1866, (12 Stat. 407, § 14,) enacts that a simple larceny of goods, amongst which are enumerated "all domesticated animals" below the value of twenty dollars, "shall be a misdemeanor" and considered a petit larceny; and the same Act, in section 10, subjects any person who is convicted of a misdemeanor to modes and degrees of punishment, at the discretion of the Court, which may far exceed in severity the fine by payment of which the offender, under the Act of 1789, might have expiated his offence. The Act of 1866 is absolutely inconsistent with the Act of 1789, in respect to cattle below the value of twenty.dollars; with a case where the value is laid and found to be above twenty dollars we are not now engaged. The repeal of the punishment provided by the Act of 1789 for stealing neat cattle is a repeal of the Act in regard to cattle, for the Act relates only to punish Columbia, April and May, 1867. ment; and this repeal, effected by the Act of 1866, does not revive the common law, for the Act of 1866, eo instanti that it repeals the former punishment, substitutes another. There can be no judgment under the Act of 1789, for it has been repealed. There can be none under the Act of 1866, for to punish under it would be to make it ex post facto. An excep tion in the Act of 1866 would have prevented the effect which it has produced upon cases of offences perpetrated before it was passed; but there being no exception, the consequences are the same, which Judge Bay, in the case of The State vs. Taylor, (2 McCord, 492,) said, had proceeded from the same Act of 1789 in reference to horse-thieves. The motion in arrest of judgment is granted. DUNKIN, C. J., and INGLIS, A. J., concurred. Motion granted. |