Page images

and declaration in matters of form, and to such modifications of the mode of proceeding as the legislature may think proper to make. It relates to the remedy alone. Knight v. Dorr, 36 Mass. 48.

A retrospective law depriving a party of the right to enforce a contract if the taxes have not been regularly paid thereon since the making thereof, is void. Walker v. Whithead, 16 Wall. 314; S. C. 43 Geo. 537; Griffiths v. Shipp, 49 Geo. 231; Lathrop v. Brown, 1 Woods, 474; Kimbro v. Bank, 49 Geo. 419; Gardner v. Jeter, 49 Geo. 195; Mitchell v. Cothrans, 49 Geo. 125; Dougherty v. Fogle, 50 Geo. 464.

A statute prohibiting persons aiding the rebellion against the United States from prosecuting or defending actions during the continuance of the rebellion is void. Davis v. Pierse, 7 Minn. 13; McFarland v. Butler, 8 Minn. 116; Jackson v. Butler, 8 Minn. 117.

A statute requiring suitors to take a test oath of loyalty in order to maintain a suit is valid. Beirne v. Brown, 4 W. Va. 72.

A statute creating a lien upon the property of the debtor in favor of existing contracts is valid, for it merely affects the remedy. Bolton v. Johns, 5 Penn. 145; Brien v. Clay, i E. D. Smith, 649; Gordon v. Canal Co. I McA. 513; contra, Kinney v. Sherman, 28 Ill. 520.

A statute enabling parties who have dealt with a contractor to file a lien claim, and obtain payment from the owner of the property, is valid, for it only provides a new remedy for the collection of a debt which one owes, and the other has the money of the debtor to pay with. Sullivan v. Brewster, 1 E. D. Smith, 681; Miller v. Moore, 1 E. D. Smith, 739.

A mechanics' lien law is altogether a statutory remedy created by the legislature as a boon to a favored class of the community, for the special encouragement of labor in the erection of houses, and is subject to the control of the legislature either to alter, vary, or modify it, or repeal it altogether. Evans v. Montgomery, 4 W. & S. 218.

If the mechanics' lien law has given a lien upon the property on which the improvements were made, without reference to the interest of the builder therein, it


be so modified as to restrict the lien to the interest and estate of the builder. Evans v. Montgomery, 4 W. & S. 218.

A statute enacting that the suit must be brought in the name of the real party in interest merely affects the remedy, and is valid. Hancock v. Ritchie, 11 Ind. 48.

A statute allowing an assignee of a chose in action to bring suit in his own name is valid in its application to instruments executed before its passage. It does not alter the nature of the instruments in any shape, or in any manner vary or affect the terms of the contracts. Ford v. Hale, i Mon. 23; Harlan v. Sigler, Morris, 39.

A statute authorizing the assignee of a chose in action to sue in his own name, can not prevent the maker from availing of the equities existing between him and the assignor at the time of its passage. Harlan v. Sigler, Morris, 39.

If a statute prohibiting the transfer of choses in action also prohibits any action thereon after a transfer either in the name of the assignee or the assignor, it is unconstitutional. Planters' Bank v. Sharp, 6 How. 301 ; S.C. 12 Miss. 28; McIntyre v. Ingraham, 35 Miss. 25; Jemison v. Píanters' Bank, 23 Ala. 168; Montgomery v. Galbraith, 19 Miss. 555; Grand Gulf R. R. Co. v. State, 18 Miss. 428; vide Hyde v. Planters' Bank, 8 Rob. (La.) 416.

Imprisonment of the debtor may be a punishment for not performing his contract, or may be allowed as a means of inducing him to perform it. Imprisonment is no part of the contract, and simply to release the prisoner does not impair its obligation. A State, therefore, has the right to abolish imprisonment for debt altogether, and such law may extend to present as well as future punishment. Gray v. Munroe, 1 McLean, 528; Mason v. Haile, 12 Wheat. 370 ; Sommers v. Johnson, 4 Vt. 278; Oriental Bank v. Freeze, 18 Me. 109; People v. Carpenter, 46 Barb. 619; Brown v. Dillahunty, 12 Miss. 713; Woodfin v. Hooper, 4 Humph. 13; Fisher v. Lacky, 6 Blackf. 373 ; ,Beers v. Haughton, 9 Pet. 329 ; Mercer's Case, 4 Harring. 248; Donnelly V. Corbett, 7 N. Y. 500 ; Newton v. Tibbatts, 7 Ark. 150 :

7 Bronson v. Newberry, 2 Doug. 38.

When the statute in force at the time the bond was given reserves the right to change the limits of the jail, such change does not impair the obligation of the bond. Reed v. Fullum, 19 Mass. 158.

A State legislature may pass a statute assigning new limits for a prison, and thus affect jail bonds previously given. Reed v. Fullum, 19 Mass. 158; Walter v. Bacon, 8 Mass. 468; Holmes v. Lansing, 3 Johns.

Cas. 73.

A statute may provide for the discharge of a jail bond in a manner different from that named in the bond. Morse v. Rice, 21 Me. 53; Oriental Bank v. Freeze, 18 Me. 109.

Where a creditor, at the time of the contracting of the debt, had the right, on a return of nulla bona, to have the rents, tolls, profits, rights and credits of a corporation sequestered, the State can not enact that a writ of sequestration shall not issue unless the corporation is guilty of mismanagement, misapplication of its funds, or willful delay in discharging its liabilities. Penrose v. Erie Canal Co. 56 Penn. 46.

A statute requiring a creditor to exhaust his securities before bringing suit on his claim, is valid, for it merely regulates the order in which several remedies shall be pursued. Swist v. Fletcher, 6 Minn. 550.





A statute which does not divest the remedy. but merely changes the form of it, is constitutional. Thayer v. Seavey, 11 Me. 284.

A statute which requires a party to record an abstract of his judgment within a certain time, in order to preserve his lien, is valid, for it leaves it entirely at the discretion of the creditor, whether he will preserve it or not. Tarpley v. Hamer, 17 Miss. 310.

A statute allowing a municipal corporation to set off a claim for benefits against a claim for damages, is valid. Baldwin v. Newark, 38 N. J. 158.

A statute allowing the bills of a bank to be tendered in payment of any debt due to it, is valid. Exchange Bank v. Tiddy, 67 N. C. 169; Bank v. Hart, 67 N. C. 264.

Where a State creates a bank, and invests its funds therein, a statute directing that the assets shall be sold and deposited in the treasury, without providing for the creditors of the bank, is void, for it withdraws the assets from the operation of all legal process. State v. Bank, i Rich. N. S. 63.

A statute which enacts that the obligors in official bonds shall not have the benefit of stay laws or appraisement laws, is valid, for it gives force to the contract by increasing the means to be used in enforcing performance of it. Pierce v. Mill, 21 Ind. 27.

A statute changing the manner of commencing the action, serving notice and proceeding to judgment, is valid. McCreary v. State, 27 Ark. 425.

A debtor in default has no vested right to have his property sold in any particular way. Tuolumne Redemption Co. v. Sedgwick, 15 Cal. 515.

A statute allowing the holder of a coupon detached from the bond to sue thereon in his own name is valid. Augusta Bank v. Augusta, 49 Me. 507.

So far as laws relating to executions are merely remedial, they may be modified or changed at any time. The sheriff may be allowed to give a deed instead of a certificate. Coriell v. Ham, 4 G. Greene, 455.

A statute which provides that no action shall be brought upon a promise to pay a debt from which the debtor has been discharged in bankruptcy, unless the promise is in writing, is valid, although it applies to prior verbal promises. Kingsley v. Cousins, 47 Me. 91.

The legislature may prescribe a different rule for the service of process

a corporation from that existing at the time when the charter was granted, for such a rule relates to the remedy and not to the obligation of the contract. New Albany & Salem Railroad Co. v. McNamara, 11 Ind.



An alteration of the remedy to enforce the forfeiture of a charter, is valid, although it applies to prior charters. Aurora Turnpike Co. v. Holthouse, 7 Ind. 59.

A statute may reduce the costs below the legal amount by the law in force when the right of action accrued, or deny them altogether. Potter v. Sturdivant, 4 Me. 154; Free v. Haworth, 19 Ind. 404; Rader v. S. R. District, 36 N. J. 273.

A statute authorizing a corporation to sue in its own name upon notes made payable to its cashier, is valid, for it is strictly remedial, and carries out the contract according to its original intendment. Crawford v. Bank, 7 How. 279.

A statute allowing a judge and commissioner to reduce the account of a depositor in a savings bank, when the assets are less than the deposits, affects the remedy, and is valid. Simpson v. Savings Bank, 56 N. H. 466.

When the legislature requires a contract to be entered into collateral to the original, and as a part of the remedy to ensorce it, the rights which it gives arise only out of the statute provision, and not out of any agreement of the parties, and are therefore liable to be modified by statute.

Morse v. Rice, 21 Me. 53; Oriental Bank v Freeze, 18 Me. 109.

A statute allowing an administrator de bonis non to sue in the name of the State, on the bond of his predecessor, is valid, although the right did * not exist when the bond was made, for it merely regulates the manner of enforcing the bond, without enlarging or varying the liabilities of the obligors. Graham v. State, 7 Ind. 470.

A statute which requires that the maker and indorsers of a promissory note shall be sued in joint actions does not impair the obligation of the contract. McMillan v. Sprague, 4 How. (Miss.) 647.

A statute requiring appraisement before a sale under an execution, relates to the remedy, and is valid. Catlin v. Munger, i Tex. 598.

A statute may provide that a corporation may be sued in the county where a tort committed by it occurs, for a suit is a remedy, and venue is but an incident of suit. Davis v. Central R. R. Co. 17 Geo. 323.

The appointment of a receiver upon the dissolution of a corporation, with a provision that all demands shall be prosecuted against him alone, is merely a change of the remedy. Read v. Frankfort Bank, 23 Me. 318; Leathers v. Shipbuilders' bank, 40 Me. 386.

A statute which provides that on all executions in favor of banks or their assignees, the notes of the banks shall be received in payment and discharge of the judgment is valid when it does not affect the rights of the bona fide holders of notes, for it affects the remedyBank v. Domigan, 12 Ohio,



[ocr errors]

A statute allowing parties to institute' suits upon an official bond, instead of issuing a scire facias upon a judgment already rendered in favor of another, merely changes the remedy and is valid. White v. Wilkins,

Me. 299.

[ocr errors]

A statute permitting one plaintiff to recover in an action of ejectment, although another joint plaintiff may fail to establish his title, does not impair any contract. Hinckle v. Riffert, 6 Penn. 196.

A statute which requires that a new promise to pay a debt barred by the statute of limitations shall be in writing is valid if it applies only to promises made after its passage. Joy v. Thompson, i Doug. 373.

A statute permitting one firm to sue another at law, although some parties are members of both firms, affects the remedy merely, and is valid. Hepburn v. Curts, 7 Watts, 300.

The right to dower arises solely by operation of law, and not by force of any contract, express or implied between the parties. A statute providing that the estate on the application of creditors shall be sold free from the dower, and the claim transferred to the proceeds, is remedial and valid. Lawrence v. Miller, i Sandf. 516; S. C. 2 N. Y. 245.

A statute which requires a minor, in enforcing his lien, to proceed against the land of the tutor most recently alienated, is valid, although he could previously have proceeded against any portion of it, for every person who is obliged to resort to the court to enforce his rights must submit to the forms and delays which the law may from time to time prescribe. Patin v. Prejean, 7 La. 301.

A State law providing that no scire facias shall be issued to revive a dormant judgment, is valid, for it leaves the creditor to his common-law remedy by an action of debt. Parker v. Shannonhouse, Phillips, 209.

A statute which takes from a creditor the right to proceed against the stockholders, and vests it in a trustee, and directs that the assets of the corporation shall be first exhausted, is valid. Story v. Furman, 25 N. Y. 214.

A statute anthorizing receivers to sell property free from encumbrances, and transferring the lien to the proceeds, does not impair the obligation of any contract, but merely affects the remedy. Potts v. Water Power Co.9 N. J. Eq. 592.

A statute which provides that the securities shall be forfeited, if the creditor sues upon the claim without first exhausting them, is void. Swift v. Fletcher, 6 Minn. 550.

The courts, upon a proper case, may substitute one surety for costs in the place of another. There is no contract on the part of the person intended to be benefited by taking the surety. The law takes the surety to

« PreviousContinue »