The Hawaiian gazette., 1871-05-03

Mansfield saying Here is q right vested, and it is
not to be imagined that the legislature could 5y gen.
erai 'eOrds take it away from the person in
whom it was 50 legally rested and who had been at
great deal Of cost and charge in prosecuting They
certainly meant future acfieas" The foregoing cases.
and others cited in them present it is believed the
true spirit of the English law on the subject.
The following decisions were made in New Hamp-
shire under constitutional clause prohibiting retro
spective laws Woard rs Winnick. 3 " H., Al.
An Act repeating statute of limitations does not az
feet pending cases. " 1t is not within the eonstitu-
tional competency of the legislature to annul by stat
ute any legal ground which a pending action is
founded, or to create any new bar by which suit
action may be defeated" So Dor rs. Norris, 4 "
II. 49, where the Court says, it seems to much
too clear to need any further eiueidation that law
dvesting the defendant of this right Ito forfeiture
by the PLAINTIFF must be deemed Retrospective law
for the decision of cause" Pckerngrs. Pickering.
10 N. H., s93. An Act allowing new mode of de-
fence does not apply to pending suit. Upon the
commencement Of this suit certain rules of pleading
obtained. and it must be held that certain rights
Hereunder then well to the plaintiff the
defendant" Willard rs Harrey. "a AZ. H., s5S. A
twenty years within which actions of debt may be
brought judgments personally obtained. Rich
Flanders, 80 ". II. So Of a law making parties to
pending suits competent to testify in their behalf
In Willard Harvey, the Court cautiously say,
d" But if law though in form applying to the remedy
only practically deprives either party of any vested
right. either Of action Defence it is uneonstitu-
tional and yoid'' IN Rich rs Flanders the Court
divided, dissenting opinion of great force be-
ing given by Chief Justice Bell, and the decision GER
tainly goes beyond the limits laid down by that
Court in previous The law also which prevent
ed parties from testifyiug for themselves was no stat,
ute rule but merely an arbitrary rule of practice.
Lakeman rs. Moore, 32 ". H. Alb. An Act repeal
ing previous Act and all acts inconsistent Herewith
under which penalty incurred, does not affect
pending case, inasmuch the Statutes declared (as
does our Civil Code) that the repeal of an Act shall
affect pending suit, which the rule which the
legislature meant should apply in all general repeas.
New York has constitutional provision against
retrospective laws, but its Court hold that they
void on principles Of universal Jurisprudence. Dash
rs Van Klesck, Johns 5O2 An Act enlarging jail
limits and furnishing a defence in actions against
sheris for escapes, is defense to prior action for
the escape of prisoner, although he had afterwards
returned. The Court were divided in that decision
but the weight of Chancellor Kens opinion is in its
favor. His words are these:
" The very of n law is a rule for future
cases. The construction here contended for the
part of the defendant would make tbs operate
unustly. I;would make it defeat suit already
meneed upon right already vested, and this would
be Furnishing innocent party with costs, well
divesting him of right previously acquired under
the existing law. Nothing could be more alarming
than such subversion Of principle. 1t is principle
in the English common law, as ancient the law it
self, that statute Of its omnipotent parliament
is not to have a retrospective effect" james
StuH Barb, 4S5, johnson j. Z" The remedy is the
power and the given either in the contract it
self by the law Of the land to the other party to
enforce the fufllment of the obligation when it is
broken The legislature cannot deprive party of
this right of the means to enforce it, but it may
undoubtedly change time, and mode and process
aud forum at its pleasure, SO that the binding OBJ
legation and the right enfoIee it remBn essentially
unimpaired, and adequate secured"
QuackenJush rs. Danks l Den. 131. An Act exempt
ing property from execution cannot affect existing
Judgment. Per Bronson, C. J.. For all honest and
practical purposes the Legislature might just as we'll
say that the debt shall be blotted out deny
the creditor all Of enforcing payment l have
overlooked the distinction which often exists be-
tween the obligation of the contract and the remedy
to enforce performance. In many cases this distne-
ton is of a substantial nature, and may have a con
trolling effect. Rut experience has proved that laws
which in form 60 only to the remedy may have the
practical effect of nullifying the contract" Aorse
Is. Goold, II. il S. 2s3. This case overrules the
previous ease, the ground mainly that imprison-
ment for debt, other statute of enforcing
Judgment, no part Of the original contract. The
distinction however is not denied, between Acts
which change the form of the remedy and those
which destroy all remedy. Bay rs. Gage, SO Barb
Az, qs62.) An Act allowing new trials in judg-
ments verdict amended by striking out the
words " on a verdict" Held that the amendment
did not affect prior Judgment by referee.
The following decisions of the Supreme Court
of the United States:
Satierlee NotiheirsoH. Pet. $50, Gs293. State
laws making valid a void contract are not uneonsttu-
tional mpairng the obligation Of contracts the
Constitution does prohibit retrospective laws
the exercise of judicial functions by a State legisa-
ture. So Baltimore and Susquehanna K. R. vs.. Nes-
bit, 10 How 434 johnson j., while asserting to the
Judgment other grounds condemns in strong terms
the given in its support, as advancing the
very extreme of that class of arbitrary and despoic
acts which bear upon individual rights and liabili-
ties"
Bronson Kinaie, Horo. sll, 1s4s). A power
of sale mortgage valid according to the laws when
it given. prohibiting mortgage sales for less than
twothrds of their appraised value, is unconstuon-
al as applied to prior mortgages, BY impairng the
obligation Of the contract "rhe rights of party
may in effect be destroyed by denying remedy alto
gether, or may be seriously impaired by burdening
the proceedings with conditions and restrictions
so to make the remedy hardly worth pursuing.
And no one we presume would say that there is any
substantial difference between Retrospective law de-
carng particular class Of contracts to
be abrogated and void, and which took away oil
remedy encountered it with conditions that render
ed it mpracticabIe to pursue it, Per Taney c. J.
Stryes e.. crorniashield, 4 ". 19I. A State in
solvent law il unconstitutional so far as it undertakes
to discharge debtors from prior contracts.
Neoraetsn e. Hagrard. ? Hor. 6l3. So Of State
law, prohibiting property from being sold on exeou-
ton for prior judgments contract debts for less
than tWO-thirds Of its appraised value. Per Cur.