1877 March interest. They neither paid nor offered to pay any Term. part of either, and while they withheld another's money it does not lie in their mouths to say, that they derived no benefit from it, and therefore should not be required to pay for the use of it that compensation which they had agreed to pay. Roberts' adm'r V. Cocke &c. Murphy It remains to consider whether the third plea strip V. Gaskins' adm'r. ped of the faulty matter which has been passed upon, and the second plea entitled the defendants to the abatement of the interest which they claimed, and which by the judgment of the court was allowed and ordered. The solution of this question depends upon the answer to be given to the main question in these cases: Is the act of the legislature, by force of which only the judgment was rendered, valid as law? Is the act repugnant to the constitution of the state, or to the constitution of the United States? Section 1, article 5, of the constitution of this state, is in these words: "The legislative power of this commonwealth shall be vested in a general assembly, which shall consist of a senate and house of delegates." Whatever power therefore is comprehended in the terms, "the legislative power of this commonwealth" is vested in the general assembly by the section aforesaid, subject only to such limitations as are imposed by other parts of the state constitution and by the constitution of the United States. Amongst the limitations contained in the latter, section 10, article 1, declares that "no state shall pass any law impairing the obligation of contracts;" and the same inhibition is put upon the general assembly by the constitution of the state, article 5, section 14. Speaking of this clause, Judge Cooley says: "No clause which the constitution contains has been more prolific of litigation, or given rise to more animated 1877. March Term. Roberts' adm'r V. Cocke &c. Murphy V. and at times angry controversy. It is but twice alluded to in the papers of the Federalist, and though its great importance is assumed, it is evident that the writer had no conception of the prominence it was afterwards to hold in constitutional discussions, or of the very numerous cases to which it was to be applied in practice." Cooley's Con. Lim. 273. And Chief Justice Marshall in 1827, in the case of Ogden v. Saun- Gaskins' ders, 12 Wheat. R. 213, 335, responding to the question, what is a law impairing the obligation of contracts said, "that in solving this question all the acumen which controversy can give to the human. mind has been employed in scanning the whole sentence and every word in it." The numerous and diversified cases which have arisen under this clause of the constitution from time to time since its adoption have been the occasion of a great multitude of decisions by the supreme court of the United States and the supreme appellate tribunals of the several states. In the light of these decisions, let us first see what has been the result of judicial inquiry as to the true meaning of the clause, "any law impairing the obligation of contracts," and we can then determine whether the act of the legislature in question is such a law. The clearest and most satisfactory construction of this clause is given by Chief Justice Marshall in 1819 in the opinion pronounced by him in Sturges v. Crowningshield, 4 Wheat. R. 122, 197. "It would seem difficult," said he, "to substitute words which are more intelligible or less liable to misconstruction than those which are to be explained. 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, adm'r. 1877. March Term. Roberts' adm'r V. the obligation of his contract. In the case at bar, the defendant has given his promissory note to pay the plaintiff a sum of money on or before a certain day. The contract binds him to pay that sum on that day; and this is its obligation: 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 Gaskins' which makes it totally invalid and entirely discharges it." Cocke &c. Murphy V. adm'r. This construction of the clause of the constitution and interpretation of its words have been followed by the courts ever since they were declared. As it is the law binding to the performance of the contract which constitutes the obligation, it has accordingly been held, and is now thoroughly 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: and this principle embraces alike those which affect its validity, construction, discharge and enforcement: that the ideas of validity and remedy are inseparable, and both are parts of the obligation guaranteed by the constitution against invasion; that while the remedy may be altered or changed by the state, yet it is with the qualification that the change shall not impair substantial rights and that a law which lessens the duty under the contract on the one side, or abridges the right on the other, whether such law acts directly on the contract or indirectly through the remedy, impairs the obligation and is void. Bronson v. Kinzie, 1 How. U. S. R. 311; McCracken v. Hayward, 2 How. U. S. R. 608; Von Hoffman v. City of Quincy, 4 Wall. U. S. R. 535; White v. Hart, 13 Wall. U. S. R. 646; Gunn v. Barry, 15 Wall. U. S. R. 610; Walker v. Whitehead, 16 Wall. U. S. R. 314; The Homestead Cases, 22 Gratt. 266; Bank of Old Dominion v. Mc Veigh, 20 Gratt. 547; Taylor v. Stearns, 18 Gratt. 244. 1877. March Term. Roberts' adm'r V. Cocke &c. Murphy V. adm'r. The rule, then, being that the laws in force at the date of a contract enter into and form part of it, it is pertinent to inquire what the laws of Virginia were touching interest prior to the 10th day of April, 1865. For a reference to the early statutes on this subject Gaskins' see note to 1 Revised Code, 373. The subsequent statutes will be found in 1 Revised Code, ch. 102, ch. 128, §§ 79, 80; Code of 1860, ch. 141, §§ 4, 5, et seq., ch. 171, § 44; Code of 1873, ch. 137, ch. 173, § 14, ch. 167, §§ 43, 44. It has always been lawful in Virginia for parties to contract for the payment of interest for the use or forbearance of money within the limits prescribed by statute; and in the absence of any express agreement for the payment of interest, in obligations for the payment of a certain sum of money on demand or on a given day, interest on the principal sum from the time it becomes payable is "a legal incident of the debt, and the right to it is founded on the presumed intention of the parties." Chapman's adm❜rs v. Shepherd's adm'r &c., 24 Gratt. 377. Judge Staples, in delivering the opinion of the court in the case just cited, speaking of the defences which may be made to the recovery of interest on such obligations as we have mentioned, says: "It is true that the debtor may sometimes, under peculiar circumstances, avoid the payment of interest; but these are matters of defence, the burden of which is upon him in all cases. They are offered to show that the obligation to pay the interest has been discharged, and not that it did not originally exist. If no valid ground of defence is shown, the judgment is as certainly renVOL. XXVIII-28 March Term. Roberts' adm'r V. Cocke &c. Murphy V. Gaskins' adm'r. déred for the interest as for the principal. In contracts of the character just mentioned, it is apparent, therefore, that interest is not given as damages at the discretion of the court or jury, but as an incident of the debt, which the court has no discretion to refuse." Wherever there is a contract, express or implied, for the payment of legal interest, the obligation of the contract extends as well to the payment of the interest as it does to the payment of the principal sum, and neither the courts nor the juries ever had the arbitrary power to dispense with the performance of such contract, either in whole or in part. Such being the law binding upon parties to contracts, and upon the courts and juries prior to the 10th day of April 1865, was it competent for the legislature to change the law, and by giving it a retrospective action to deprive a party to a contract of the benefit to which he was entitled under it? It will not be pretended that the legislature could by a statute, acting either directly upon the contract or indirectly through the remedy, release the principal sum or any part of it; and this because the law binds the debtor to the performance of his undertaking, which is the payment of such principal sum; and for the same reason it would seem equally clear that the interest, when a part of the contract, and its payment as much a part of the undertaking of the debtor as the payment of the principal, cannot by legislative action, direct or indirect, be remitted, released, or discharged. If by the laws in force prior to the 10th day of April 1865, when the contracts were entered into, upon which the act of April 1873 is intended to operate, the courts and juries had, as some seem to suppose, absolute control over the subject of interest, and were invested with full power in their discretion to allow or |