This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
Ancillary and provisional remedies are not a part of the obligation of a contract, and may be altered if adequate remedies are left. A statute which strikes out a prior ground of attachment,1 is held to affect the remedy only, and not to impair the obligation of prior contracts, even if an attachment has already been levied, as long as the claim has not been put in judgment.2 This is true of Federal statutes; but here of course is the additional consideration that Congress is not restrained by this provision.3
A statute which gives an additional remedy by authorizing an attachment before the debt is due does not impair the obligation of pre-existing contract obligations.4 So a statute providing that if the trustee in garnishment pays a final judgment against the defendant in whole or in part, such payment shall to that extent discharge his liability as to plaintiff and defendant, is not invalid as impairing the obligation of prior debts due to a non-resident debtor.5 A statute which avoids a lien obtained by attachment,6 or by levy and execution,7 in the event of an assignment for the benefit of creditors within a specified time after such lien is obtained, is invalid as to debts contracted before such statute is passed. It will be noticed, however, that such a statute takes away every remedy whereby the creditor can obtain a priority through diligence; and leaves his only remedy that of presenting his claim to the assignee for the benefit of creditors. The same result has been reached as to a mortgage given before a state statute was passed avoiding mortgages given four months before insolvency proceedings were begun.8 These cases have been placed by the-courts, however, on the broad but unsafe principle that the remedy is a part of the contract.9 A contrary result has been reached under section 67f of the National Bankrupt Act of 1898, the court holding that it did not impair the obligation of existing contracts to provide that an adjudication of bankruptcy should discharge all liens obtained through legal proceedings within four months prior to the filing of the petition in bankruptcy against the debtor.10 However, Congress is not subject to this constitutional provision, and the act would be valid even though it did impair the obligation of contracts.
54 N. E. 33; Trim v. McPherson, 7 Coldw. (Tenn.) 15.
24 "No man promises to pay money with a view of being released from that obligation by lapse of time. It violates no right of his, therefore, when the legislature says that time shall be no bar though such was the ease when the contract was made." Campbell v. Holt, 115 U. S. 620, 628; quoted in Bates v. Cullum, 177 Pa. St. 633; 55 Am. St. Rep. 753; 3-4 L. R. A. 440; 35 Atl. 861.
25 Swickard v. Bailey. 3 Kan. 507; Hulbert v. Clark, 128 X. Y. 205; 14 L. R. A. 59; 28 N. E. 638; Bates v. Cullum, 177 Pa. St. 633:
55 Am. St. Rep. 753; 34 L. R. A. 440; 35 Atl. 861. So in a suit for back taxes. McEldowney v. Wyatt. 44 W. Va. 711; 45 L. R. A. 609; 30 S. E. 239.
26 Ball v. Wyeth, 99 Mass. 338; Prentice v. Dehon, 10 All. (Mass.) 353.
1 Day v. Madden, 9 Colo. App. 464; 48 Pac. 1053.
2 Day v. Madden, 9 Colo. App. 464; 48 Pac. 1053.
3 Evans-Snider-Buel Co. v. Mc-Fadden. 105 Fed. 293; 44 C C. A. 494; 58 L. R. A. 900.
4 Mosher v. Bay Circuit Judge, 108 Mich. 503; 60 N. W. 384.