The Hawaiian gazette., 1871-05-03

the time when be commenced his suit ne was entitled
by the established Law to recover" Gibson. j.
4" Could it then be anything but rank injustice. to
compel plaintiff prosecuting those rights which tho
law recognized afording good cause Of action.
to desist, pay cests, and begin again. when those
costs were incurred at a time when h. vas 10 no de-
fauitT'
In Maine it was held that the Legislature could
legally pass an Ae, requiring actions to recover the
penalty bonds be in The form Of trsspass on the
case instead Of debt. was formerly done BY com
law and that the Act required the dismissal Of
pending actions of debt. The effect Of Ibis decision
may have been to give a creditor no remedy TO en-
force his contract, inasmuch as trusting to the
sherifs bond. he had taken no steps enfoFce his
contract against the debtor, who meanwhile may
have become insovent, or whose property may have
gone to satisfy other debts. Such case Of re-
Prospective legislation IS hardly to be regarded as
precedent worthy o. imitation.
The following are views and decisions Of the sr-
preme Court Of Massachusetts,: statute Of limitations
may affect pending suit Bacon 20. cafiendsr 9
Iass.. 500, Parons c. J.. saying The denandant
has not contested the eoIstitutona,y Of this
so far may affect actions sued after lis passage;
but denies it affecting actions pending the time
We ground for this distinction and if /,
competent for the Legislature to make these pro-
visions to affect actions after 90 be commenced.
the provisions might apply with equal authority
to actions then pending But We give no opinion as
to the general eonstitutiouality Of this statute"
Springfield r.. Hampden 6 Piet. SOL A statute au-
thor1ing Commissioners Of Highways to lay out roads
may be repealed, AMI the repeal prevents the Com
missioner from going to decide any questions pend
ing at the time. The Court there declare that the
Legislature "may transfer Jurisdiction from tn
bunal to another. If there is rested right. it IS not
invaded by the repeal Of the Act which created t.
for the Statute makes sufficient proriIion for al
under the former Statute" .Saugyer 70. Boa-
croft, q Pick. oil. An Act deprivng plaintiff Of
COSTS unless to recover 4 certain sum, applies only
to cases brought aer the Act is passed. So Banies
Fo5es, Is Pick. 5s2. Wright rs. Oakly. S Me-.
4Ol Statute that the limitation Of time for bring
ing actions does not apply where the debtor is out or
the State is bar to previous action. Tbs Court
there shnw, C. j., say that although it can not be
said in technical srictness that man has a vested
right to plead the Statute Of limitations. so that it
could not be taken away by express Act Of the Lsgs
ature. yet we are Of opinion that the Legislators did
notintend to take away such right" Kng ~ TirrsiL
Gray, $751; Statute Of mitAtions Of action against
executors does not apply to these who gave bonds be-
fore its passage, quoting the words Of the Court in
Brigham Bigeio,s l2 ei 273, that ''if tao Legis-
lature should declare that a period already elapsed
should bar an action this would be under color Of
regulating, arbitrarily to take away all remedy
and would be abuse Of power not to be antei-
Pated from any Legislature" A Statute curing de-
fects Of Jurisdiction in cases pending in lover
Court after a decision in the Supreme Court against
the jurisdiction is invalid. Denny Hatoon, 2
Allen, S79 where Bigeow, c. j., says If the
practical operation Of a Statute is to determine ad-
versary suits pending between party and party by
substituting in the place Of the well settled rules sf
law the arbitrary will of the Legislature and thereby
controlling the action Of the tribunal before wach
suits pending no can doubt that it would be
unauthorized act of legislation because It directly
infrnge the peculiar and appropriate functions Of
the judiciary. The Legislature have no
power to interfere with this jursdeiiou in such man
to change the decisions Of pending before
Courts" Laws should be construed as prospective
and Retrospective, unless they are expressly made
applicable to past transactions and to such ss are
still pending Broon's Legal Marims GO.
The whole subject is fully considered in Cooley's
Constitutional Limitations, p. 3ey and is thus sum
med up " We think iaysstigation win show that q
party has no vested right in a defence based on an
informality not affecting his substantial interests.
There is no doubt Of the right Of = Legisia-
ture to make laws which reach back to ane modify
the effect Of prior transactions provided Retrospective
laws are not forbidden But legislation Of
this sort is exceedingly liable to abuse, and itisa
sound rule Of construction to give Statute q pros
pective operation only unless its terms show legis-
ative intent that it should have Retrospective effect.
A retrospective Statute curing defects in legal
proceedings where they Of the nature Of irsgu-
larites only, and do not sxsad 70 matters Of jurs-
dicon, is not void on Constitutional grounds, e..
as impairing the obligation Of contracts. being
post faeio.'1