1842.

Lowry

v.

Keyes

yet a pledge given to secure it is not thereby discharged. CHITTENDEN, January, The law of limitation being no part of the contract, but relating solely to the remedy, and as the lex fori governs, it follows that the decision must be according to the law existing at the time the remedy is enforced, and not according to the law at the time of making the contract, A law existing at the making of the contract, when repealed, can no more be pleaded than a foreign law of limitation. The law existing at the place and at the time of trial must govern the decision.

The manifest intention of the legislature in passing the act of 1832 (Comp. stat. of 1834, p. 57) was to substitute the provisions of this statute in place of the provision in the statute of 1797, (Comp. stat. of 1824, p. 291, s. 10,) not only as to debts contracted thereafter but as to debts then existing. The statute of 1797 contained an exception of defendants residing out of the state at the time the cause of action accrued. By the construction given to the statute of 1797, a debtor might abscond from the state the next day after the cause of action accrued, and, by remaining absent the period of the statute of limitation, bar the creditor of his remedy without any fault or negligence of the creditor or opportunity to collect his debt. This was unjust and unreasonable. The statute of 1832 was intended to cure this mischief and puts the subject on rational ground, giving to all creditors an opportunity for the period of limitation to collect their debts, and taking from the debtor the power of defeating this right. This statute is remedial and ought to be liberally expounded so as to be coextensive with the mischief. To be so it must embrace all debts. The words "shall go from this state" are equivalent to "shall be out of the state," otherwise the statute would not embrace persons who were never in the state, as such persons could not be said "to go from this state.”

The word "return," in the statute 4 Ann. C. 16. s. 19, is construed to come into and applies to one who was never before in the state.

These words express the future not in reference to the pasing of the act, but in reference to the contracting of the debt. The statute must either embrace all debts where the debtor left the state before the action was barred, or it must

v.

Keyes.

act.

CHITTENDEN, be confined to cases where not only the debt was contracted January, but where the debtor left the state after the passage of the 1842. The latter construction leads to an absurdity, as it not Lowry only leaves all cases unprovided for where the debtor had left the state before the act was passed, although the debt was not barred, but by the repeal of the exception in the old statute it would bar instanter debts where the debtor left the state before the cause of action accrued (such as the last item in the plaintiff's account,) and which were saved by the exception in the old statute. Treating the statute of 1832 as a substitute for the exception in the act of 1797 or as a rule of construction obviates this difficulty.

The phrase "against whom there is or may be any cause of action" shows that the statute embraces existing debts. The term "cause of action" is synonymous with debt or right without reference to the remedy; otherwise the words "before such cause of action shall be barred" would be surplusage and nonsensical. The statute then is in terms retrospective.

The unconditional repeal, in the second section of the act of 1832, of the exception in the act of 1797, is indubitable evidence of the intention of the legislature that the act of 1832 should operate retrospectively. But, without any evidence of such intent, the general rule is that whenever a statute of limitation is passed or altered, it operates both upon antecedent and subsequent causes of action, unless in terms limited to the latter, and the time is computed from the accruing of the action and not from the passing of the act. The legislature must be taken to have intended the legal consequence of their act. Ross v. Duvall, 13 Pet. R. 64.

As the defendant left the state before the debt was barred this case comes within the letter and spirit of the act.

But it is insisted that, as by the construction given to the old act, the debt was barred before the act of 1832 was passed, the law is unconstitutional. The answer is, that as statutes of limitation form no part of the contract, and as the lex fori governs the remedy, the legislature may repeal or amend them at pleasure. Ex post facto laws, within the meaning of the constitution, extend only to penal statutes Calder et ux. v. Bull et. ux., 1 Pet. Cond. R. 172. The act does not impair the obligation of the contract, first, because

January, 1842.

Lowry

v.

Keyes.

a law of limitation is no part of the contract. Secondly, it CHITTENDEN, does not impair the contract nor abridge the remedy, but only goes to confirm an existing right and in furtherance of the remedy, by curing a defect and adding to the means of enforcing an existing obligation. Such statutes, although retrospective, have uniformly been held valid both in England and in this country. 1 Kent's Com. 455. Loche v. Dane, 9 Mass. 360. Haden v. Janes, 11 Mass. 396. Foster v. Essex Bank, 16 Mass. 245, 255, 257, 261, 272, 273. Maidstone v. Stevens, 7 Vt. R. 487.

It is said by the court in Calden v. Bull, 1 Peter's Cond. R. 176, that "every law, that is to have an operation before 'the making thereof, as to commence at an antecedent time, 'or to save time from the statute of limitations, or to excuse acts which were unlawful and before committed, and the like, is retrospective; but such laws may be proper 'or necessary." In Sturgis v. Crowningsheld, 4 Peter's Cond. R. 421, a distinction is taken between laws, which impair the obligation of contracts, and statutes of limitation, because "statutes of limitation relate to the remedies which are furnished by the courts." The same distinction is recognized in Foster v. Essex Bank, 16 Mass. 245, where the court say, "there is no such thing as a vested right to do wrong."

The last item in the plaintiff's account ought to be allowed. The facts reported amount to a contract of promise on the part of defendant to pay whatever plaintiff might pay for him, and removes the objection to a recovery on book. This being an arrest on mesne process such contract is valid. Planck v. Anderson, 5 T. R. 37.

The opinion of the court was delivered by

REDFIELD, J.-We do not perceive any sufficient reason to doubt the correctness of the decision of the county court in relation to the charge for money paid. For whether the auditor disallowed it, on the ground that the evidence was "insufficient," in that it did not gain credit with him, or that it did not show such a payment of money as could be properly charged on book, it involving a question of special indemnity and consequential damage, the decision of the auditor would, in the first case, be final and not subject to VOL. XIV. W. R. IV.

10

CHITTENDEN, revision by the court; and, in the latter, it would be founded

January, 1842.

Lowry

v.

Keyes.

on such obvious principles of sound law, as could leave no ground of doubt of its correctness.

We think the decision of the county court, (and of the auditor,) in allowing the remainder of the account, is erroneous. That account, it is conceded, had long been barred by the statute of limitation, previous to the passing of the act of 1832. It is contended, that that act had such a retrospective operation as to remove the bar. Now conceding, for the argument's sake, (and we are not prepared to do it upon any other ground at present,) that the legislature may lawfully repeal a statute of limitations, so as to revive extinct causes of action, it is obvious, that, upon principles of expendiency merely, this would be one of the very last limits of power, to which they would resort. It is, therefore, not one which is to be inferred from any dubious construction. Such an intention should be unequivocally expressed, before courts would feel called upon to inquire into its propriety and validity. It appears obvious to this court, from the terms made use of in the act of 1832, that it was never intended to have any retrospective operation-at most, not to the extent now claimed. The most that could be contended for is, that, in cases where the debt was not barred, and the debtor was at that time without the state, and the time limited by the statute was in progresss of running, that it should be arrested until the return of the debtor; and of this we express no opinion.

Judgment reversed and judgment for defendant.

BENNETT, J. Dissenting.-The law of limitation is no part of the contract, but relates to the remedy, and the lex fori governs, and of course the inquiry must be, what law is in force at the time the remedy is sought? It is no objection to a statute of limitation, that it is retrospective in its operation, or in its provisions. The distinction is well taken between those laws which affect the right, and those which simply relate to the remedy; and the general rule seems to be, that when a statute of limitation is passed or altered, it operates upon antecedent, as well as subsequent causes of action, unless by its terms it is restrained to the latter. The common law courts have decided that the statutes of limita

1842.

Lowry

V.

Keyes.

tion, having begun to run, continue to run, notwithstanding CHITTENDEN, January, the debtor may have subsequently gone beyond the reach of process. The result has been, that the creditor has been frequently barred of his claim, when not chargeable with negligence. The same course of decisions has obtained under the act of 1797, in this state. To obviate the mischiefs of such a course of decisions, the act of 1832 was passed. This act provides, that if any person, against whom there is, or may be, any cause of action of a personal or transitory nature, shall go from this state before such cause of action shall be barred by the statute of limitations, and shall not have known property, &c., the statute of limitations shall not run against such cause of action during the absence of such person from this state. The expression in the statute "against whom there is, or may be any cause of action, &c.," shows that the legislature intended to subject to its operation antecedent debts; and I think, the act of 1832 was designed not only as a rule of construction, but as a substitute for the provisions in the 10th section of the act of 1797, relative to persons beyond seas, without any of the United States. The words, "shall go from this state," must be taken only as equivalent to the words, shall be out of the state. If not so, the statute would not embrace foreigners who could not be said, literally, to go from the state. So the expression in the English statute, and those of some of the states which use similar expressions, "return to," have been held to include foreigners who have never been in the state. Strithoost v. Graeme, 3 Wilson, 145. Hall v. Littell, 14 Mass. 203. Ruggles v. Keeler, 3 John. 263.

Indeed in settlement cases, where the courts have been disposed to be strict in their construction, we have held, that the expressions "coming and residing within this state,' in the act of 1797, are satisfied with an actual residence of a person who was an inhabitant of the state prior to and at the passage of the act. Burlington v. Calais, 1 Vt. 385. Starksboro' v. Hinesburgh, 13 Vt. 222.

The defendant, in this case, left the state before the action was barred, and his case is within the mischief of the old law, and, as I think, comes within the letter and spirit of the act of 1832. To confine the operation of the statute to cases where the debtor left the state after the passage of the