the one with which he is charged, is not entitled to as heavy damages as one possessing a fair moral character. The jury who possess a large and almost unbounded discretion upon subjects of this kind, could have but very inadequate data for the quantum of damages, if they are permitted to know only the plaintiff's general character in relation to the facts put in issue. This appears to us to be the only correct and rational rule upon the subject; for while it affords the jury a fair opportunity of weighing the injury, it cannot take the plaintiff by surprise, as every man is presumed prepared to show his general character.' (Eastland v. Caldwell, 2 Bibb, 24.)

"In stating the technical rules of law, or the more abstruse doctrines of equity, he wrote with a clearness which could come from nothing but clear vision, e. g., upon the old rule as to defenses cognizable both at law and in equity: 'Where matter of defense is purely legal, and the party neglects to avail himself of it, at law, it would be contrary to the soundest maxims of policy, to permit him afterwards to take advantage of it in equity. But if the defense be of such a nature that the party may avail himself of it, either at law or in chancery, though he should fail to make it at law, he might, nevertheless, resort to a court of equity, with the same propriety as a plaintiff seeking a remedy for an injury of which a court of law, and a court of equity have concurrent jurisdiction, may elect to which tribunal he will resort for relief. But, as in the latter case, when the election is once made, and a trial had in either of these courts, the party will be precluded forever from resorting to the other, so by a parity of reason in the former, the matter of defense once decided upon, in the one court, can never be retried in the other.' (Morrison v. Hart, 2 Bibb, 5.)

"Also as to mutual independent covenants: 'There can be no doubt that the judgment of the court below is correct. The payment of the price was not by the terms of the contract, made to depend upon the conveyance of the lot as a previous condition, and the covenant to pay the price, and that to convey the lot, being contained in different instruments, cannot be construed to be dependent covenants. The failure to convey, therefore, most indisputably could not, upon principles of the common law be pleaded in bar of an action brought upon the contract to pay the price; nor can this be done under the statute authorizing a defendant in an action upon a specialty to go into, or impeach the consideration; for where there are mutual independent covenants, it is not the performance of the thing covenanted to be done, on the one side, but the covenant itself, which is the consideration of the covenant on the other side; and therefore, the failure to perform the one covenant is no failure of the consideration of the other.' (Sanders v. Beal, 4 Bibb, 324.)"

In our form of government, disagreements sometimes arise between the State and federal judiciary. Several such occurred during Boyle's term, "and he met the difficulty with admirable discretion."

In the federal question of the constitutionality of the law creating the Bank of the United States, he yielded his own adverse opinion, and with his colleagues, adopted the ruling of the Supreme Court, as conclusive on all state courts. (Bank v. Norton, 3 Mar., 422.) But in matters of judicial procedure, or of the legislative policy of the state, he affirmed the right of the state to maintain its own system, though the federal courts might adopt a different rule.

"Thus, notwithstanding the Supreme Court's decision to the contrary, and though his only colleague yielded to that authority, Boyle adhered to the Kentucky rule, and held that actual seizin, or personal entry, was necessary to the maintenance of a writ of right, and that seizin in law was insufficient." (Speed v. Buford, 3 Bibb, 57.)

"And he concurred in holding that the occupying claimant law, securing to bona fide occupants before eviction, a prescribed compensation for improvements, was not in conflict with the compact with Virginia, though three of the seven judges of the Supreme Court, had held otherwise." (Bodley v. Gaither, 3 Mon., 57.)

"Boyle had been for some thirteen years in a place made for him-a place which he fitted. In ordinary times, and under ordinary conditions, he would have been a great judge. That was conceded to him long before the day of his trial, when through much tribulation, he came to a haven of rest."

"The crowning achievement of his life, was his triumphant self vindication, at the conclusion of the Old and New Court controversy, the bitterness of which was probably unsurpassed in Kentucky, even by that engendered by the Civil War."

It may be better understood from a brief review of the financial and political conditions then prevailing in the State. The Napoleonic wars resulted in an excessively inflated paper currency and prices were enormously enhanced, in all commercial communities. The precious metals were hoarded and ceased to circulate as money. When peace returned, followed by a more or less arbitrary resumption of specie payments, the contraction of the medium of exchange necessarily resulted in a tremendous fall in prices. In Kentucky, the conditions were aggravated, at the Legislative session of 1817-18, by the charter of forty independent banks, having an authorized capital of about ten millions of dollars, with the privilege to redeem their notes either in specie, or in notes of the Bank of Kentucky, which had then resumed specie

payment. As the paper of these banks went into circulation, prices advanced, and a wave of speculation swept over the State. The ventures were uniformly and speedily disastrous, the markets fell, but the obligations remained unreduced. The pressure of debt became so burdensome, that at the Legislative session of 1819-20, the three months' time for which judgments might be replevied, was extended to one year. In 1820, the distress of the debtor class became terrible. General Adair was chosen governor, and at the ensuing legislative session, the Bank of the Commonwealth was chartered, and was not required to redeem its notes in specie. By an Act of that session, the judgment creditor was subjected to a stay of two years, on the debtor's giving bond with security, unless the creditor should endorse on his execution, a willingness to accept notes on the Bank of Kentucky, or the Bank of the Commonwealth, and by its terms, the Act applied to debts already incurred. By the exercise of the legislative powers, under the charter of the Bank of Kentucky, to elect its directors, a directory was chosen, pledged to accept in payment of debts due the bank, the paper of the Bank of the Commonwealth. This, instead of strengthening the latter bank, resulted in depreciating its notes fifty per cent. and more, and brought down the value of the paper issued by the Bank of Kentucky. The creditor "had his choice of two evils. One was to receive nothing at all for two years, and at the end of that time to do the best he could-running the risk of new delays at the end of that time, and of the bankruptcy of his securities."

"The indignation of the creditors, and the distress of the debtors, caused the people of Kentucky to forget their former political alliances, throw off their party ties, and divide into the relief and anti-relief parties. These parties were led by such men as George M. Bibb, who had preceded Boyle as chief Justice; John Rowan, who had been a judge of the Court of Appeals; Solomon P. Sharp and William T. Barry, on the relief side, and Robert Wickliffe of Fayette, George Robertson, who followed Boyle as chief justice, and Chilton Allen, of Clark, on the other.

"Circuit Judge Clark, of Clark county, promptly decided the stay law unconstitutional, and was summoned before a special session of the legislature, where it was proposed to remove him from office by Address. The effort failed for want of the twothirds majority required by the constitution. His opinion was followed by Circuit Judge Blair of Fayette, and both parties awaited the decision of the Court of Appeals upon the question.

"The court then consisted of three judges. Boyle's colleagues were William Owsley, who was appointed in April, 1812, and Benjamin Mills, who was appointed in February, 1820. Owsley, as a young man, had been assisted by Boyle in his legal edu

cation, and was his close friend. All these were men of great firmness and courage, qualities which were soon to be needed. Their decision was not awaited in silence. A great popular majority was in favor of the so-called relief laws, and firmly believed in both the power and the right of the legislature to adopt them. They had been so accustomed to talking and hearing talk of a Republican form of government, and of bowing to the will of the majority, that it was with something of a shock they learned that they must wait until three unassuming gentlemen on the bench, determined whether the will of the majority could constitutionally prevail. There were mutterings which grew to open threats of what would happen if the decision should be adverse to the popular will.

"No intimation came from the court, however, until October 8, 1823, when Chief Justice Boyle delivered the opinion in Blair v. Williams, followed on October 11, by the opinions of Judge Owsley in Lapsley v. Brashears, and of Judge Mills in both cases. (4 Litt., 34, 46, 65.) The court held that in the clause of the federal Constitution which forbids a state to pass any law impairing the obligation of contracts, the obligation referred to, is not one arising from or dependent on conscience,' for the obligation dependant upon conscience alone, is obviously beyond the reach of human legislation, 'but is the legal obligation, or remedy whereby the performance of the contract may be enforced, because legislation cannot impair the legal obligations of contracts otherwise than by operating on legal remedies for their enforcement.'

"In the opinion of Chief Justice Boyle: 'It is, then, the remedy allowed by law in force at the date of the contract, being that on the faith of which the contract was made, which constitutes its obligation; and it consequently results, that the remedy which was allowed by law upon the contract between the parties in this case, on the 19th of November, 1819, the date of the contract, is its obligation.

"Does, then, the Act of the Assembly in question, impair that obligation? By the law as it stood on the date of the contract the defendants were allowed to replevy the debt but for three months only, and the money, if not then paid, was required to be made. of their estate, without further delay; but by the Act in question, they were allowed to replevy the debt two years, or enter into a recognizance for the payment of the money within that time. And surely it cannot require argument to prove that the latter Act impairs the obligation imposed by the former law. Indeed, the avowed object of the Act in question, was to relieve the debtor from the obligation he was under, to pay his debt in the time prescribed by the former law, and give him further time of payment; and according to any sense of the word, the Act in question

must impair the obligation imposed by the former law, and is therefore unconstitutional and void, as it relates to the contract between the parties in this case, as well as to all contracts made previous to the passage of the Act.'

"Then," as Judge Du Relle, afterwards a distinguished associate on that bench, in his Life of Boyle, has written, "the storm broke. The decision produced the greatest exasperation in the relief party. The judges were denounced as usurpers, tyrants, self-made kings and charged with arrogating to themselves supreme power. Their authority to declare a legislative act unconstitutional, and to disregard it on that ground, was bitterly and violently denied. While the judges were publicly denounced for their decision, on the stump and in the press, Judge Bibb, who appeared on the relief side, in Blair v. Williams, against Wickliffe on the other, filed a petition for a rehearing in both cases. Haggin, Barry and Rowan were his colleagues in Lapsley v. Brashears, and Harrison and Breckenridge appeared with Wickliffe. At this day, the question seems easy enough of solution. Since the victory was won, popular thought as well as legal, has crystallized in the form then determined. But to form a really just judgment of the question, as it then appeared, it would be necessary to go back and consider the forgotten arguments of the defeated side. The lost cause has few apologists, and the reasons which seemed weighty enough to bring the scales to a balance, are dropped and discarded when the issue is once decided. The court itself was not unanimous at the outset. There are few things connected with the controversy more striking than the manful statement of Judge Mills, at the conclusion of his opinion, when, in defiance of public clamor, he abandoned the side of the majority: "Such is the conclusion to which my mind has come on this litigated question, after the most mature deliberations and research, and I am bound by my oath, and official duty, to express it. I am free to confess that it is different from the opinion which, when yielding without investigation, to the practice of the day, I once entertained. To adhere to an error when convinced, is odious; to retract it is praiseworthy and magnanimous, and I hesitate not to choose the latter course."'

"A skeleton of the arguments which seemed plausible, if not convincing, to those who owed debts, and were unable to pay, may be found in Judge Bibb's petition for rehearing. Those arguments were amplified, elaborated and reiterated, in the speeches and manifestoes of the time.

"The relief party represented that under the court's ruling, a law giving a more speedy and efficacious remedy to the creditor, was not prohibited, but was void if the remedy were more favorable to the debtor. They claimed that the remedy was not part of the obligation, but the effect and consequence of it-something