
    DeCordova v. The City of Galveston.
    The construction of the terms “ expost facto laws'” “laws impairing the obligation of contracts,” and “retrospective law ” examined and discussed. (Note 102.)
    The term “retrospective,” in the bill of rights, was designed to embrace laws which are not included in the description of ex pout facto laws or laws impairing the obligation of contracts. but which destroy or impair vested rights or rights to do certain actions or possess certain thing.*', according to the laws oí the huid. (Note 103.)
    Laws which affect the remedy merely aro not within the scope of the inhibition against retrospective Jaws unless the remedy bo entirely taken away or be incumbered with conditions that would render it useless or impracticable. There cannot be a vested right to any particular remedy, until suit be commenced, at least.
    Whether Matui.es of limitations affect the remedy merely or pertain to the contract is not now an open question.
    The first section of the act of limitations of 18il applies as well to contracts then existing as to tho^e subsequently made.
    Where one period of limitation or prescription takes the place of another, the principle of computation is established in Gautier v. Franklin and Hays v. Cage. But quere when a period of limitation or prescription is established where before there was none.
    The finds that lh<* notes were made by a municipal corporation, and that interest was made payable annually, cannot affect the questiou of limitation; the notes being payable at a certain time after date.*
    Where interest is payable annually and is not paid, quere whether the creditor is entitled to interest upon interest. (Note 104.)
    It seems that where interest falls duo before the principal, the statute of limitations does not commence running against the claim for interest until the principal is due also, although tli© creditor might have maintained his separate action for such interest.
    Appeal from Galveston. This suit was instituted on the 2St.li of April, 1849, oil three promissory notes, a copy of one of which is ns follows : •
    “StlS.lifi. Faith of the city pledged. No. 21. Galveston city ten per cent, stock. The corporation of the city of Galveston will pay Moreau Forest or order, oil the first day of January, 3842, one hundred and eighteen 06-100 dollars in par funds, with interest on the same from the first day of August, 1S40, until paid, at the rate of ton per cent. per annum; tlic first payment of interest to be made on the first day of January, 1841, ancl annually thereafter until final liquidation, in accordance with an ordinance passed and approved by tlie mayor and board of aldermen on the 27th day of August, 1840.”
    Tlie two olhers '"ere for the same amount and of the same tenor, except the difference in numbers and the date of their maturity; one being payable on the 1st day of January, 1813, and the other on the 1st day of January, 1844. The defendant demurred and pleaded the statute of limitations. To the plea of the statute'of limitations tlie plaintiff demurred. Both demurrers were overruled.
    A jury was waived. In support of the issue on the facts, the plaintiff produced the original notes, and the notarial certificate of the demand and refusal of payment on the 17th April, 1S49, was admitted as proved. Here the case closed, and judgment was rendered in favor of tlie defendant.
    
      I. A. %■ G. W. Paschal, for appellant.
    It will be seen that thqse contracts bore date before the statute of limitations of 1S41, under the first section of which this plea was pleaded. (Acts 1841, p. 103, sec. 1.) This was a remedial act, intended to operate prospectively, and not to affect contracts then in existence. Such is understood to be the intention of the decisions of this court in giving effect to the ten-year statute which existed prior to tlie act of 1841. (Gautier v. Franklin, 1 Tex. R., 732; Carson v. Rainey, 2 Tex.'R., 296; Ingram v. Ingram, 2 Tex. R., 590; Ennis and Reynolds v. Cocke, 2 Tex. R., 592; Frosh v. Swett, 2 Tex. R., 485; Coles v. Kelsey, Id., 541.) These contracts were executed on the 27th day of August, 1840, at Galveston, when there was no law of limitation in existence; the ten-year statute of Spain having' been repealed by the common-law act of 1840, and no new law'having been enacted until the 9th February, 1841. (Gautier v. Franklin, 1 Tex. R.‘, 740.) The old maxim that the statute of limitations ■affects the remedy merely and not the rights, that the law of the formn and not of the contract is to govern, has been a good deal modified of late years. The cause of action on each of these notes really accrued before the passage of tlie act, because the first payment of interest on each was to be made on the 1st day of January, 1841. The allowance of tlie plea was therefore to give a retroactive effect to the law. And courts of justice have expressed the strongest disapprobation of retroactive legislation, and will not give to a law a retroactive construction if it be susceptible of any other. (Calder v. Bull, 3 Dali. R., 386; 1 Cond. R., 386; Dash v. Yan Kleek, 7 Johns. R., 477.)
    II. Tlie fact that no demand was made until March, 1849, seems to us to take the case out of the statute. Tlie debt ivas a security given by a corporation, and which- could only he paid by proper officers. It was like a bank-note drawing interest, but which nevertheless is never barred by the statute of limitations. Interest was stipulated for, blit the cause of action did not accrue as to tlie principal until demand. It would be a dangerous precedent to place the paper of a corporation on the same footing of the paper of individuals.
    III. If tlie money was really in tlie hands of the treasurer of the city, he held it in trust for tlie plaintiff, and a refusal to pay him,‘or an appropriation of (lie money otherwise than to his use, was such a breach of trust and fraud as tO' avoid tlie statute; for a trust or fraud avoids the statute of limitations. (6 Madd., 326 ; 2 B. &B., 275; R. & M., 255; Dang., 656; 2 B. & B., 73; Mass. Turnpike Company v. Fields and others, 3 Mass. It., 201; Sherwood v. Sutton, Gall. It., 143; Croft v. Arthur, 8 Ds. L. C. It., 223; Lewis v. Stafford, 4 Bibb,
    
      Joseph Howard, for appellee.
    The court correctly overruled the plaintiff’s demurrer to the defendant’s plea of the statute of limitation. It is true that at the time of tlie making of these conUncts or promissory notes there was no statute of limitation in force; hut prior to their maturity one had been enacted by the Congress of the Republic of Texas which is yet in force. (Acts ■of 1841, p. 103.) That statute, it is contended, applies to this case. Statutes of limitation affect the remedy only, (á Bibb It., 207; 6 Wend. R., 475; 3 J. J. Marsh R., 00»; 5 Pet. R., 457; 3 Id., 270; 3 Johns. R., 203; Gautier v. Franklin, 1 Tex. R., 732.)
   IlEMPiirrjT/, Oír. J.

The only question deemed material to discuss is whether the action was barred bv the statute of limitations approved 5th February, 1811.

The principal ground in support of the position that the action was not barred is that I lie"’ operation of the'statute was prospective, and could not con-stií utionally affect contracts in existence, at tiro time of its passage. The prom-issnry noies were executed iu 1S40, during the interval between the abolition of the Spanish laws of prescription and the passage, of the statute, and when there were consequently no laws of limitation in force. To tito satisfactory solution of the. question whether the contract was affected by the subsequent law of limitation we will consider—

1st. Whether, under the Constitution of the Republic of Texas, any law of limitation could, without a violation of the Constitution, operate on contracts previously made.

2d. Whether the first section of the statute extends as well to existing contracts as to l ho.-ts made subsequent to the passage of the statute. ■

The. Constitution of the Republic declares that “ no retrospective or ex post Íacfohnv, or law impairing the obligation of contracts, shall be made,.” (sec. 16, Dee. of Rights;) and if the law, as applied to the cause of action, be within •the intent of the inhibition, it is null and inoperative. It is very clear that the law dot's not come within the technical definition of an ex post facto law, which is limited to offenses, and declares an action indifferent in itself at the time of its commitment to be an offense, and punishes the person who lias committed it. (1 Black. Com., 46; 3 Dallas R., 386.) Nor does it violate the prohibition against laws which impair tire obligation of contracts. A distinc-tiou has always been taken between the obligation of a contract and the remedy for its enforcement; and it lias never been doubted but that the .Legislature may vary “ the nature and extent of the remedy, so that some substantial remedy be in fact left.” A State may at pleasure regulate the modes of proceeding iu its courts in relation to past contracts as well as future. It may, for example, shorten the period of time, within which claims shall be barred by the statute of limitations, or exempt the necessary implements of agriculture, •or Hie tools of the mechanic, or articles of necessity iu household furniture, from execution. ‘•Regulations of this description have always been considered, in every civilized community, as properly belonging to the remedy, to be exercised or not by every sovereignty according to its own views of policy and humanity,” and as not impairing, the obligation of the contract. (Bronson v. Kinzie et al., 1 How. U. S. R., 315.)

The quest ion then arises whether the statute, as applied to past contracts or transactions, is retrospective within the meaning and intent of the constitutional prohibition. Ex post facto laws and such as impair the obligation of contracts are retrospectivo; but there may be retrospective laws which are not necessarily ex post facto, or which do not impair the obligation of contracts; .and by the use of tins term' “ retrospective ” cases were doubtless intended to be ¡minded not within the purview of the two former classes of laws. Iu attempting to ascertain the intent of the convention, iu prohibiting retrospective laws, we derive but little assistance from the literal meaning of the term; for that, is no more expressive of the intent of the prohibition than is the literal meaning of the terms ex post facto of the intention in prohibiting laws of the latter class. In Calder v. Bull, (3 Dallas R., 386,) one of the earliest, if not the first case in which it became necessary for the Supreme Court of the United Suites to consider whether an act of a State Legislature was in violation of the prohibition against ex post facto laws, it was deemed expedient to define fully .tlie meauingbf that provision in the Constitution.

“The prohibition,” says Judge Chase, “ that no State shall pass any ex post facto law necessarily requires some explanation; for naked and without some explanation it is unintelligible aud means nothing. Literally it is only that a law shall not be passed concerning and after the fact or thing done or action committed. I would ask what fact, of what nature or kind, and by whom done? That Charles the First, King of England, was beheaded: that Oliver Cromwell was protector of England, &o.-, aré facts that have happened ; but it would be nonsense to suppose that the States were prohibited from making any law after either'of these events, aud with reference thereto. The prohibition in the letter is not to pass any law concerning and after the fact, but the plain and obvious meaning and intention of the prohibition is this : that the Legislatures of the several States shall not pass laws after a fact dofie by a subject or citizen which shall have relation to such fact, and punish him for having done it.” Such laws as were considered ex post facto laws within the words and intent of the prohibition were then stated, aud great reliance was placed on the definitions of ex post facto laws as found in the Constitutions of several of the States.

The prohibition against the passage of retrospective laws appears to me equally to require explanation with tile inhibition against ex post facto laws ; for unless the meaning of the restriction Is qualified by its object, and the acceptation in which it is to be received can be thus shown, it either means nothing more than-is included in the restriction against ex post facto laws, and such as impair the obligation of contracts, or it has a latitude of signification which would embarrass legislation on existing' or past rights and matters to such an extent as to create inextricable difficulties, and in fact to demonstrate that it was incapable of practical application. A retrospective law literally means a law which looks backwards or on things that are past; or if it be taken to be the same as retroactive, it means to act on tilings that are past. If it be understood in its literal meaning, without regard to tile intent, then all laws having an effect on past transact ions or matters, or by which the slightest modification may be made of the remedy for the recovery of rights accrued or the redress of wrongs done, arc prohibited equally with those which divest rights, impair the obligation of a contract, or make an act, innocent at the time it was done, subsequently punishable as an offense. If, for instance, at the accrual of aright or the breach of a contract, .or even at the time of its execution, no courts were organized or empowered to afford a remedy, a subsequent law organizing courts, defining their powers and jurisdiction, and regulating their proceedings would, where the subject-matter of adjudication originated in past transactions, be in a literal sense retrospective; or, if courts had been organized and their proceedings regulated by law at the time of entering into, a contract, and the prohibition be understood literally, these regulations must govern the proceedings when suit is brought, although they may have been previously repealed and others substituted. The Legislature would be deprived of “all power of regulating (he mode in which process shall be issued and served, how the pleadings shall be filed, and at what term the judgment shall or may he entered ” in reference to past causes of action. (Mr. Justice McLean’s opinion in Bronson v. Kinzie et al., 1 How. R., 329.) If any particular form of action had been prescribed by the Mexican system of jurisprudence for the trial of title to lands, the action of trespass for that purpose could not be brought on any tit.le existing previously to the introduction of the common law. 'The laws of prescription at the date of a contract could not be abolished as applicable to such contract.; nor could a new statute operate on the contract, though made expressly applicable.

In attempting to ascertain the-intent of the prohibition, we can derive material assistance from the examination of the Constitutions of other Slates, in which similar restrictions are to be found, and from the decisions of the’ enlightened tribunals by which such provisions have been considered aud expounded.

The Constitution of Tennessee contains an inhibition similar to our own against retro.-poetive laws; and it lias been hold that under this prohibition a new or additional remedy may he provided for a just right already in being, and which would be lost without such provision. Deeds not registered in time may, upon this ground, bo admitted to registration by a new act of the Legislature. (2 Yerg. R., 123; Id., 269.) An act of the Legislature authorizing hills in equity to be filed to defeat usurious contracts applies to contracts entered into and judgments obtained before its enactment as well as after, and is not a retrospective law in the sense in which the Constitution prohibits the passage of such laws, as it does not create a right, but merely regulates the remedy. (7 Humph. R., 130.) The Constitution'of New Hampshire declares that “retrospectivelaws are highly injurious, oppressive, qjid unjust. No such laws, therefore, should be made, either for the decision of civil causes or the punishment of offenses.” And it was held in Morrill v. Sherburne (1 N. H. R., 199) that a statute purporting to grant a new trial in a civil cause after a final judgment was retrospective and therefore, void. In 3 N. H. R., 481, it was stated that tlio restrictive clause of the Constitution, in application to civil cases, was intended to prohibit the malting of auy law prescribing new rules for tlio decision of existing causes, so as to'change the ground of action or the nature of the defense; and that an act of the Legislature repealing a statute of limitations is, with respect to all actions pending at the time of the repeal and which are barred by tlio statute, a retrospective law for the trial of a civil cause, repugnant to the Constitution, and wholly inoperative. In Clark v. Clark (10 N. H. R., 386) the principle was extended to the protection of existing causes of action or rights of defense, though no legal proceeding or suit had been instituted at the passage of a statute; and as the prohibition had been repeatedly presented to the court, and their opinion as to its true construction is of the highest authority, a portion of it will be cited, in which their views are given as to the extent of the inhibition and the character of the laws which are operation if it affect an existing cause of action or an existing right of defense, or are not within its scope and intention : “A law may bo retrospective in its b3' taking away or abrogating a perfect existing right, although no suit or legal proceeding then exists. Of course it is not intended to deiiy the right of the Legislature to vary the mode of enforcing a remedy, or to provide for the more effectual security of existing rights, or to pass laws which change existing rules under which rights would be acquired by lapse of a certain period of time, part of which iias already passed.

The statute of limitations may be changed by an extension of the time or by an entire repeal, and affect existing causes of action which, by the existing laws, would so on bo barred. In such cases tile right of action is perfect, and no right of defense lias accrued from the, time, already elapsed; but if a right has become vested and perfect, a law which afterwards annuls or takes it away is retrospective.”

In tlio ease of The Society v. Wheeler et al., (2 Gall. R., 105,) which was a suit, commenced iu 1807 for the recovery of hinds in New Hampshire, a claim was set up by the defendants for the value of improvements, under a statute passed in 1805, which allowed tenants who had been in possession for six years, under a supposed legal title, a sum equal to the increased value of the land. It was held that the'statute of 3805, if applied to the case, would be a retrospective law for tlio decision of a civil cause; and it was stated by Mr. Justice Story that, on principle, every statute which takes away or impairs vested rights acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a now "disability, in relation to transactions or considerations already past, must he doomed retrospective.

In Calder v. Bull (3 Dall R., 391) it is said by Judge Chase that every law which takes away or impairs rights vested agreeably to existing laws is retrospective, and is generally unjust and maybe opposed; and it is a good general rule that a law should have no retrospect. But there are cases in which the laws may justly, and for the benefit of the community and also of individuals, relate to a time antecedent to the time, of their commencement; as statutes of oblivion or of pardon. Every law that is to have an operation before the malting thereof, as to commence at an antecedent time, or to save t.fine from the statute of limitations, or to excuse acts which were unlawful and before committed, or the like, is retrospective; but such laws may be proper or necessary, as the case may be.

It was decided by the Supreme Court of the Republic that a law which infringes a vested right by retrospective action, is void under the Constitution. (Dallam, 017.)

In the case of Merrill v. Sherburne et al., (1 N. H. R., 213,) to which we have previously referred, it was maintained that legislative-acts are not within the prohibition against retrospective laws unless they operate on the interests of individuals or private corporations; nor are they within them when in an implied or express manner the parties affected have'eonsented to their passage ; and instances are cited in which such consent is actually given or may be presumed. Ror can acts of the Legislature be opposed to those fundamental axioms of legislation unless they impair rights which are vested, because most civil rights are derived from public laws; and if, before the rights become vested in particular individuals, the convenience of the State produces amendments or repeals of those laws, those individuals have no cause of complaint. The power that authorizes or proposes to give may always revoke before an interest is perfected in the donee.

The cases to which reference lias been made, and tiie opinions of the courts in expounding this constitutional inhibition, will serve to illustrate the intention of the convention in imposing the restriction. Laws are deemed retrospective and within the constitutional prohibition which by retrospective operation destroy or impair vested rights or rights to “ do certain actions or possess certain things, according to the laws' of tiie land,” (3 Dall. R., 349.) hut. laws which affect the remedy merely are not within the scope of the inhibition, unless tiie remedy bo taken away altogether or incumbered with conditions that would render it useless or impracticable to pursue it. (Bronson v. McKinzie, 1 How. R., 310.) Or, if the provisions regulating the remedy he so unreasonable as to amount to a denial of right, as, for'instance, if a statute of limitations applied to existing canses barred all remedy or did not afford a reasonable period for their prosecution, or if an attempt were made, by law, either by implication or expressly, to revive, causes of action already barred, such legislation would he retrospective within the intent of the prohibition, and would therefore he wholly inoperative.

There cannot, in the nature of things, he a vested right to the remedy which •existed at the date of a contract; or, in other words, tiie mode, (inies, and manner of prosecuting suits must he left to the regulation of the. legislative authority. If a remedy formed a. part of tile, contract, it should follow it into a foreign conntry, and he prosecuted in the form of action prescribed by the lex loci constructus at its date.; and this although a different form may be allowed where tiie suit is instituted, or there he no forms of action permitted or recognized by law.

That statutes of limitations are remedial in their character has been decided in the cases of Gautier v. Franklin (1 Tex. R., 736) and Hays v. Cage, (2 Tex. R.,) and this cannot be considered an open question. As forming a part of the remedy, they may be modified or changed, hut under the restrictions expressed in a former part of this opinion; andslatuf.es abolishing the times of limitations or establishing new terms of prescription are not in violation of the Constitution, and it is only on the inadmissible principle that a remedy forms a part of tiie contract that its modification would lie retrospective within the intent of the inhibition.

I proceed to examine whether the first section of tiie statute of limitations extended as well to contracts then existing as to those subsequently made.

Note 102.—Sherwood v. Fleming, 25 T. Supp., 408.

Note 10:1.—Render v. Crawford, 33 T., 470; Rivers v. Washington, 34 T., 267; Moseley v. Lee, 7 T., 479; Bentick v. Franklin, 38 T., 458; Wood v. Welder, 42 T., 409.

Note 104.—Andrews v. Hoxie, 5 T., 171; Lewis v. Paschal, 37 T., 315.

This point can scarcely be considered’as open for argument. The only difference of opinion that has been entertained as to the applicability of the statute to past rights and transactions is whether the time which had elapsed under an old law of prescription should be computed, in reference to its effect under that law, in ascertaining the time in which the bar would be complete under the new law of prescription; or whether this should be disregarded, and the time computed as if the cause of action had accrued on the day the statute went into opera!ion. We have determined that the time which had elapsed previous to the. passage of the statute should not be disregarded; and the only difference between lids and former causes is that the contract was made when there was no law of limitation in force, though the cause of the action did not accrue until after the passage of the statute.

It will not he, necessary to determine what should he the rule of computation, under a statute of limitations, on a canse of action accruing before the adoption, of the statute and when no law of limitation was in force. If, on principles of equity, presumptions were permitted to supply the place of positive law, and a considerable period had elapsed after the accrual of the cause of action and before the passage of a statute, it would seem that the same rule should he applied as in cases where time liad run during the continuance of a former law of prescription. The rules fixing the time for the commencement of actions, whether on .causes accruing' before or after the passage of a statute, should always he clearly defined and positively prescribed by law. As little latitude should he left as possible to construction; for on no subject within the range of jurisprudence have courts differed more widely from themselves and from eacli other than on questions arising on statutes of limitation. No room should be left for evasion of the statute or supplying its deficiencies, on the ground that cause's cognizable in equity are not within the intent of the Statute, or on any like grounds; and the exceptions which are to be made to he operation of file statute should be specified and defined by the legislative rill, and not intrusted t.o the uncertain powers of construction. (10 Gill & John. R., 316; 2 McMull. R., 84; 8 Ham. R., 298.)

Tlie fact that the notes were made 1)}' a corporation cannot operate to the defeat of the statute. The notes became due at fixed periods, and a cause of action accrued on each at the. date of its maturity. The fact that interest was payable annually cannot affect the question. The interest might have, perhaps, been recovered in a separate suit; or if the action had been brought before the bar of the, statute, the plaintiff would have been entitled to annual rents and to interest upon die interest in computing the amount to he recovered. In a late ease decided in Vermont, (19 Verm. R., 467,) on a note due in four years from date, with interest payable annually, it was held, on a question, whether the statute, commenced running from the maturity of the note or the tecrual of the first installment of interest, that, the plaintiffs might have insti-aited a suit for the recovery of a year’s interest, lmt they were not bound to do •o; that. (lie. statute did not begin to run upon the demand until the principal lócame payable; and that die accruing interest wits not separated from die principal demands; and consequently the statute of limitations does not run ipou it until the principal is barred by the statute. Dor some judicious and striking views on the subject of retrospective laws, sec Davis v. Minor (1 How. Miss. R., 183) and Couch v. McKee, (1 Engl. Ark. R., 491.)

IVe are of opinion that there is no error in Che judgment of the court below, md it is ordered that the same be affirmed.

Judgment affirmed.  