#### *Campbell's Adm’x v. Montgomery.

November, 1842,

Richmond.

Pleading—Admission of Plea—Exception to—Waiver.

—A plea being received by the court though objected to by the plaintiff, he excepts to the decision. and then takes issue in fact on the plea: Held, his exception is not waived by taking issue.

Set-Off—Equitable Defences at Law—Statute.*—The 62d section of the act passed the 16th of April 1831. establishing the circuit superior courts, allowed the equitable defences therein provided for, in all actions at law pending in such courts at the time of pleading the same, whether such actions wore originally brought in such courts, or had been transferred thereto from the former superior courts of law.

Debt on a penal bill for 666 dollars 66 cents, conditioned for payment of 333 dollars 33 cents, brought by Eliza E. Campbell as administratrix with the will annexed of John Campbell deceased, against Montgomery, in the former superior court of law for the county of Westmoreland. The suit was brought in December 1828. In 1830 issue was joined on the plea of payment. On the 15th June 1831, the cause was transferred to the circuit superior court of law and chancery for the said county, under the 96th section of the circuit court act, passed 16th April 1831, (Supp. R. C. p. 169). In October 1831 the defendant had leave within sixty days to file additional special pleas in bar, in the nature of pleas of set-off.

At April term 1832 the defendant tendered a special plea in bar, setting forth substantially that on the 14th September 1826, three bonds (to wit, the bond in question and two others for the same amount, dated 14th September 1826, and payable on the 14th September 1827, 1828 and 1829, respectively), were executed by him to the testator of the plaintiff on a settlement of accounts then had between himself and said testator; that in that settlement he was unable (in consequence of having lost or mis* laid a receipt of the said testator, Mated 15th July 1823, for 600 dollars) to obtain the credits to which he was entitled, and that not being able to find said receipt, and being threatened with a chancery suit, he was induced to execute the said bonds, upon the express promise on the part of said testator that the said receipt (if it should ever be found), should be allowed as a credit against them; that shortly afterwards, viz. on the 20th November 1826, the said receipt was found, and immediate notice thereof was given to the said testator in his lifetime &c. And he therefore claims this receipt as a credit against the bond on which 'this suit is founded. The plea was duly verified by the affidavit of the defendant.

To the filing of this plea the plaintiff objected, solely upon the ground “that this suit was depending in the late superior court of law for Westmoreland county antecedent to the passage of the act of April 1831, and the plea was therefore inadmissible;”† but the court overruled the objec*292tion and admitted the plea, and the plaintiff excepted to the opinion of the court, and took issue on the plea.

The jury found for the plaintiff on the plea of payment, and for the defendant on the special plea, and the court gave judgment for the defendant.

On the petition of Campbell’s administratrix a supersedeas was awarded to the judgment.

G. N. Johnson for plaintiff in error.

The question is the single and narrow one presented by the reception of the special plea. That plea was received under the act of April 16, 1831, § 62, Suppl. to Rev. Code p. 157. *The plaintiff in error contends that this act does not authorize such a plea in any action instituted before the passage thereof. The terms of the 62d section are general, and apparently applicable to all cases, or rather (according to their literal import) to actions already brought, and to those only. But this cannot be the construction. All legislation is to be deemed prospective, and nowise ex post facto in its operation, unless that be plainly the intent of the legislator. This is a general principle of construction, founded upon the equity of the case,—the apparent danger of working injustice by allowing a retroactive effect to the law. The earliest case on the subject to be found decided in this court is that of Craig v. Craig, 1 Call 483, in which the assignee of a bond with collateral condition was not allowed to maintain an action in his own name, by virtue of the statute giving such action, the statute being passed subsequent to the assignment, and to the institution of the suit. So in Elliott’s ex’or v. Lyell, 3 Call 268, it was held that the representatives of a deceased obligor in a joint bond were not liable to an action at law by virtue of the statute giving such action, that statute being passed after execution of the bond. These two cases, it may be objected, are decisions upon statutes which affected rights in contradistinction to remedies: but the principles discussed in them may be usefully referred to as a guide in the present case. The Commonwealth v. Hewitt, 2 Hen. & Munf. 181, was the case of a motion for a venditioni exponas to the present sheriff, to sell property seized by a former sheriff, since dead, under a statute passed subse■quent to the seizure; and the judgment of the general court overruling the motion was affirmed by this court. This was a ■question upon a law affecting the remedy-— the process of execution upon judgments; and according to the principles laid down by judge Roane, even laws which affect merely remedies are to be deemed only prospective, unless the - contrary ^intention unequivocally appear. The application of the statute here to-pending actions would enable the defendant to defeat an action originally well brought and indefeasible,—would deprive the plaintiff of his right to recover in the action, and give the recovery to the defendant-,-—contrarj’ to the express language of the proviso contained in the 101st section (Suppl. R. C. p. 171), as well as to the gen eral spirit of legislation, as understood and expounded by this court in the several cases above cited. It may be said" that the accrued right of action in the plaintiff was only equivalent to the equitable right of set-off in the defendant, which he might enforce in chancery; and that the effect of the statute, if applied even to pending suits, would only be to enable the defendant to avail himself of this equivalent right, in the court of law instead of the court of equity. But the rights are not equivalent—there iso a difference in the plaintiff’s favour at’least to the extent of his costs at law; and besides, it may well be deemed that he sustains injury by transferring the adjustment of the defendant’s equitable claim from the appropriate forum to that of law, whose modes of proceedings are so much less adapted to the office of making such adjustment.

Stanard for defendant in error.

It is admitted by the plaintiff’s counsel that the terms of the statute are broad enough to embrace all suits brought in the circuit courts, whether by the act of the plaintiff, or the act of the law in transferring to those courts actions brought in the former superior courts; but still insisted that the statute applies only to the suits brought in the circuit courts by the act of the parties. Suppose a suit brought after the 16th of April (the day of passing the act) and before the 15th of June, (when the transfer of actions to the new courts was to take effect, $ 96, Suppl. p. 169); it would be instituted in the old superior court. Will it be contended that the statute is inapplicable to such action?—to an action which must in regular course be ^'determined in the new court, and which the plaintiff, when he instituted it, knew must be so determined? Craig v. Craig would be an authority for the plaintiff, if the decision had been that the statute allowing assignments of the bonds with collateral condition did not apply to bonds executed previously r but that was not the decision; and in Meredith’s adm’x v. Duval, 1 Munf. 76, (in which Craig v. Craig is referred to and recognized) it is held that the statute does apply as well to bonds executed before as after its passage. Elliott’s ex’or v. Lyell was a case upon a statute which, if retroactive, would have affected rights, not remedies, and the decision was made expressly on that ground. In The Commonwealth v. Hewitt, the words of the enacting . clause expressly applied to future cases only, and the decision was merely that the words of the preamble could not make the enacting clause applicable to any other cases. The *293statute here cannot be considered as affecting or impairing any right of plaintiffs at law; and the proviso referred to by mr. Johnson expresses no more than would have been implied without it. If the right to recover at law be considered as a right vested under the contract, and distinguishable from the remedy, then the argument would go the length of denying to the legislature the power to authorize an equitable defence to be made at law, in any action upon a contract entered into before the statute was passed. But in Ansell v. An-sell, 3 Carr. & Payne 563, 14 Eng. C. E. R. 451, it was held that the english statute requiring a written acknowledgment to take a simple contract debt out of the statute of limitations, applied to a debt contracted before the law was passed, and to an action previously pending.

To ascertain the meaning of the legislature in the particular section under consideration, the whole of the statute containing it must be looked to. In the language of lord Coke, as cited in Dwarris on Statutes 706, [p. 50 *of edition in- Eaw Library, vol. 9,] “the best expositors of all acts of parliament in all cases are the acts of parliament themselves, by construction and conferring all the parts of them together. Optima statuti interpretatrix est (omnibus particulis ejusdem inspectis) ipsum statutum.” See also Co. Litt. 381 a. ; Dwarris on Stat. 698, [45.] The same principle is laid down by chief justice Best, in 3 Bingh. 196; 11 Eng. Com. Eaw Rep. 94, 5, and by the court of king’s bench in Doe d. v. Bywater v. Brandling, 7 Barn. & Cress. 643; 14 Eng. C. E. R. 108. Again, it is a maxim that libi lex est specialis et ratio ejus generalis, generaliter accipienda est. Dwarris on Stat. 697, [45] ; Co. Eitt. 381 b. Applying these principles of construction to determine the meaning of the expression actions brought in the circuit superior courts, and looking at the whole statute, particularly the 68th and 69th sections, there can be little doubt that the actions intended by the legislature were as well those which might be transferred to the new courts from the *former*superior courts of law, as those which might be originally instituted in the new courts: for it can scarcely be denied that the interrogatories allowed by the 68th section, and the production of papers authorized to be enforced by the 69th section, might be availed of in an action previously instituted ; and the remedies given by these two sections are directly applicable, and no ■doubt were chiefly designed, to render available the equitable defences given by the 62d section. Statutes of a remedial nature, it has been seen, are to be so construed as to suppress the mischief and advance the remedy. What was the mischief here, and what the proposed remedy? The mischief was, that a defendant not bound in justice to pay one dollar of the plaintiff’s claim might be subjected to a recovery at law, and have no remedy except by the tedious and expensive interposition of chancery, even though the matter of his defence were such that a jury might be perfectly competent *to pass upon it, and to do exact justice between the parties: the remedy proposed was to abolish the impediment, and enable the defendant to make his equitable defence in the court of law,—to determine the whole controversy in a single suit. It is manifest that the mischief and the reason for a remedy applied as strongly to actions then pending as to those subsequently instituted.

Patton on same side.

In the statute of 1831, the words brought—pending--instituted—are all used, and it wilt be found that they are applied indiscriminately to suits already instituted, and suits thereafter to be instituted. See *l*38. The true rule is this—that a statute is not readily to be construed retrospectively, where such construction would affect or repair existing rights, or the obligation of existing contracts : and in England, where such laws are within the constitutional power of parliament to enact, the courts always struggle against the conclusion that the retrospective effect was intended. But laws, the retrospective operation of which affects merely remedies, are not construed with the same anxious desire to avoid such retrospection. This is strongly exemplified in the case of Ansell v. Ansell, already referred to. The distinction between the two classes of statutes is clearly laid down in 1 Kent’s Comm. (3d edi.) p. 455, and remedial laws, it is there shewn, not only may be applied to cases not included by the letter, but will be so applied, if the terms of the enactment do not exclude such application. Roane’s adm’r v. Drummond’s adm’rs, 6 Rand. 182, is a case of this sort. Such has been the construction, too, of the statute allowing a new action within a year after arrest or reversal of judgment, where the verdict has passed for the plaintiff, or judgment been given for him. The case of Garland v. Marx, reported in a note 4 Leigh 321, is another example of applying a remedial statute to a case not within the literal terms. The case of Elliott’s *ex’or v. Eyell is not applicable, being decided on the ground that rights would have been affected and changed by giving a retrospective operation to the statute there under construction. No right is impaired or changed by giving to the statute here the application which the defendant contends for. The defendant had in equity precisely the same right which the statute enabled him to enforce in the court of law: he was clearly entitled to a perpetual injunction in equity to the whole recovery at law—principal, interest and costs. If the statute be held not to apply to suits already pending, it will give rise to the very diversity of decision, in consequence merely of a difference in the time of determination, which, in the case of a law clearly remedial, is so strongly disapproved by judge Roane in Elliott’s ex’or v. Eyell. But even if the plaintiff’s costs at law could be considered a subject of vested *294right, liable to be affected and lost by the application of the statute, the error as to that matter is not a ground of itself sufficient to justify the reversal of the present judgment, admitting that as to the debt recovered by the plaintiff at law, the defendant was entitled to a perpetual injunction in equity.

There are other english cases supporting the principle of Ansell v. Ansell; namely, Towler. v. Chatterton, 6 Bing. 258; 19 Eng. C. B. R. 75; Hilliard v. Benard, 1 Mood. & Malk.- 297, 22 Eng. C. B. R. 313.

But further: the court having received the special plea, and the plaintiff having joined issue, and taken her chance of success before the jury, the fact of her having objected to the admission of the plea ought not now to be available as a ground to reverse the judgment. If the plea ought not to have been received, it was ,on account of a defect which appeared on its face and was ground of general demurrer. The plaintiff might have demurred, and ought to have done so. She ought not to be allowed, by means of an objection to receiving the plea, to get the advantage of demurring *and replying both. In Chew v. Moffett, 6 Munf. 120, where the plea presented a defence purely equitable, after verdict for the defendant it was held that the equitable nature of the defence was immaterial, and no ground to reverse the judgment.

Beigh in reply.

If the legislature had meant, in providing the equitable defence to actions “brought in the circuit superior courts,” to include suits previously pending and afterwards transferred to those courts, these latter words would in all probability have been employed also. The 68th and 69th sections cannot prove the contrary. They simply authorize a discovery in the court of law, instead of the court of chancery, in support of a defence of a legal nature: they do not give any new defence, of an equitable nature. Instead of looking to these sections to ascertain the meaning o± the 62d section, it is more proper to consider for that purpose the 65th and 66th sections, which, like the 62d, expressly authorize new and equitable defences: and it is manifest that the 65th and 66th sections are confined to the case of suits thereafter to be instituted in the circuit superior courts. To allow the equitable defence here, is not merely to allow in a court of law a defence before competent in equity only; the effect is to change the rights of the parties: for the defendant’s allegations in a bill in equity filed by him, if contradicted by the answer, must have been proved by two witnesses, or one witness and pregnant circumstances; whereas the plea under this statute cannot be contradicted by the oath of the plaintiff at law, and may be proved by a single witness. The intent of the statute was to restrict the blending of common law and chancery jurisdiction (as in pleas under the 62d section) to actions originally instituted in the new courts, and to allow in all cases the discovery in a court of law, in aid of a legal defence, which could previously have been had in chancery only. Ansell v. Ansell is founded on the terms of a statute which expressly refers to the period *of trial, thereafter to be had, (no matter when the suit might have been instituted) as the period when the plaintiff must, to sustain his action, be provided with written evidence of the new promise; it was therefore necessarily retrospective. The Commonwealth v. Hewitt shews that although a remedial law may be applied to past cases (which no one ever thought of questioning) yet it will not be so applied, where those cases, however clearly within the same mischief, are not included by the terms of the enactment. Dajr v. Pickett, 4 Munf. 104, was decided on the same principle.

The question of practice in relation to the objection to the plea, is settled (if any thing can be considered as settled) by the decisions of this court. The plaintiff did not waive her objection by taking issue.

*

Rule as to Acts Done under Repealed Statute —In Crawford v. Halsted, 20 Gratt. 222, Judge Staples, after quoting from a Massachusetts case in which the rule as to acts done under a statute repealed is laid down, said : “Jn *Campbell v. Montgomery,*1 *Rob.*392, a similar principle was announced in applying the statute of 1831 which authorized equitable defences to be made at law, to a suit pending when the statute took effect, because it merely affected the remedy and not the right.”

†

“In all actions at law founded on contract, whether such contract be by deed or by parol, brought either in the said circuit superior courts of *292law and chancery, as courts, of common law, or in the county and corporation courts, the defendant may file a special plea in bar, in the nature of a plea ■of set-off.’’—Suppl. *to B.*C. ch. 109, § 62, p. 157.— Note in Original Edition.

BABDWIN, J.,

delivered the resolution of the court as follows: “The court is of opinion that though the plaintiff did not, by her replication to the defendant’s plea of equitable set-off, waive her exception to the decision of the circuit superior court allowing said plea to be filed, nor consequently her right to have the propriety of that decision examined in this court, yet the said plea was properly received by the said circuit superior court, notwithstanding the plaintiff’s objection thereto; this court being of opinion that the 62d section of the act of the 16th of April 1831, establishing the circuit superior courts, allowed the equitable defences therein provided for, in all actions at law pending in such circuit superior courts at the time of pleading the same, whether such actions were originally brought in such circuit superior courts, or had been transferred thereto, under the provisions of said act, from the former superior courts of law:” therefore,

Judgment affirmed, with costs in the court of appeals, to be levied &c.