
    *Crawford v. Halsted & Putnam.
    January Term, 1871,
    Richmond.
    Joymes, J., absent, sick.
    1. Statute — Effect on Incomplete Depositions. — A deposition of a party, to be read in a pending cause at law, was commenced before the passage of the act of March 2d, 1866, Sess. Acts, 1865-66, p. 86, which required that parties should testify, ore terms, but it was not completed until that law went into effect. The deposition is inadmissible as evidence, if objected to.
    
    2. Same — Repeal — What Statutory Rights Lost.— Inchoate rights derived under a statute, are lost by a repeal of the statute before they are perfected, unless they are saved by express words in the repealing statute.
    3. Statute — Interpretation.—The act, ch. 16, § 18, of the Code, edi. 1860, does not save the right to a party to a suit to give evidence by his deposition, where the taking' of it was commenced before the passage of the act of March 3, 1866, bnt was not completed until that act was passed.
    4. Same — No Conflict with Alexandria Constitution.— The act of March 3, 1866, held under the circumstances not to be in conflict with § 16, article 4, of the Alexandria constitution.
    This was an action of assumpsit in the Hustings court of the city of Richmond, brought in February, 1866, by Halsted & Putnam, merchants and partners doing business in the city of New York, against Wm. Crawford and Robert C. McPhail, alleged to be partners doing business under the name and style of Crawford & Co., in the city of Richmond. The process does *not appear to have been served on McPhail; but the action was proceeded in against Crawford. The only question in the case was upon the admissibility of the depositions of the plaintiffs as evidence. The commission to take the depositions in New York was issued by the court on the 20th day of February, 1866. The notice to Crawford that the depositions would be taken on the 6th of March, is dated on the 20th February, and was delivered to him on the 22d. On the 6th of March the notary commenced the taking the depositions, and it was regularly continued from day to day until the 12th of April, when they were completed, and returned to the clerks’ office of the Hustings court: and the defendant, ten days before the trial of the cause, gave notice to the plaintiff’s counsel, of his intention to object to the reading the depositions on the trial, on the ground that parties to a suit, when coming forward on their own behalf, must testify ore tenus. And accordingly when upon the trial the depositions were offered in evidence, the defendant objected to th'em; but the court overruled his objection; and the defendant excepted.
    On the 23rd of October, 1866, there was a verdict and judgment for the plaintiffs for the sum of $1,470 75, with interest and costs, and Crawford thereupon applied to the judge of the Circuit court of the city of Richmond for a supersedeas, which was awarded. How the case was decided in that court does not appear; but it was taken to the District Court of Appeals at Williamsburg, where the judgment of the Hustings court was affirmed; and then Crawford brought the case to this court.
    Young, for the appellant.
    I.It is within the clear power of the legislature, at any time, to prescribe the remedies by suit to enforce a contract; the mode of proceeding in such suit; the *rules of evidence; and the manner in which the evidence shall, be given. It has power, at its pleasure, to alter the existing form of remedy, or the rules of evidence, and to substitute, in any class of cases, oral for written testimony. In all such cases the law at the time of the trial must govern. A party to a contract has no vested right in any particular remedy or form of proceeding or mode in which the witnesses in his case shall testify. The above principles apply as well to suits which have been brought to enforce contracts as to those in which suits have not been brought. The only limitation to this power is that, under color of changing the remedy or the rules of evidence, a party shall not be deprived of all effectual remedy, as,by depriving him of the right to sue, or by the Legislature destroying the validity of the evidence upon which his claim rests. Sedgwick on Stat. & Const. Law, p. 659-691; Perry v. Commonwealth, 3 Gratt. 632-637.
    II. The Legislature having, in the exercise of an unquestionable power, by the passage of the act of the 2d March, 1866, (Sess. Acts of 1865-6, p. 87), repealed the Alexandria act of the 29th January, 1864, .(see Acts of 1863-4, p. 17), so as to alter the mode in which the evidence 'of parties to suits should be thereafter admissible, the new mode prescribed must govern in all trials had after the date of the new law; and this, without any regard to the steps that may have been taken under the Alexandria law to take the depositions of such parties. This must necessarily be so unless there be either some general statute or some special clause in the repealing act which shall clearly indicate the legislative purpose that the new law shall not apply to existing suits and proceedings which have taken place in them.
    III. The act concerning “statutes and rules of decision” (Code of 1860, ch. 16, § 18) canno+ have such an effect. The “rights accrued and claims arising,” *which are referred to in that act, are not those which relate simply to the mode in which evidence is to be given on a trial. Nor is the simple giving of a notice to take depositions “an act done” which can confer any such “right” or “claim.” A party to a suit can have no legal right or claim to any particular mode in which his witnesses are to testify. The proceedings at the trial of the case must, however, of necessity “conform to the laws in force at the time of such proceedings;” i. e. at the time of the trial.
    IV. The terms of the act of March 2d, 1866, are comprehensive, and contain no exception that can by possibility embrace the present case. There is nothing in it to indicate that the Legislature intended to except from its operation pending cases. If that had been the intention, why was not some phrase used to indicate it? It is impossible to believe that the phraseology'of the act would not have confined its operation to future “cases,” or that pending “cases” would not have been embraced in the exception if such, had been its purpose. If the construction of the exception contained in the law, which is contended for by the ap-pellees, be the true one, there can be no reason why the admissibility of the evidence of the parties therein referred to, should not extend to all “cases” then pending, whether the deposition of the parties had been then taken or not. The evidence of the parties, under the laws then in force, would have been just as “admissible” if the depositions had not then been taken as if they had been. Nor is there any reason whjr, under such a construction, the exception should not apply to future “cases,” brought for1 causes of action existing- at the time the new law was passed. The new law -would thus have been rendered practically inoperative, and the repealed law still left in full vigor as to all existing suits or causes of action, even to those *which had arisen or been instituted prior to the passage of the Alexandria act itself!
    V. The objection taken by the appellees that the act of March 2d, 1866, is unconstitutional, on account of alleged defects in its title, is not well taken. The objects and provisions of the act are entirely germain to the subject matter of its title, and to the provisions of the act repealed. The court, it is submitted, will never declare an act of the legislature,. so important as this, null and void, except upon the clearest and most imperative reasons, and none such exist in the present case. The same objection might, with equal force, be made to the Alexandria act itself. The effect of the act is, at all events, to repeal the Alexandria act, upon which alone the appellees rely.
    Page & Maury, for the appellees.
    The defendants in error rely upon the following points of law, and the following authorities in support of them:
    I.Where a party, upon the faith of an existing statute, has actually asserted and claimed, by a proper suit or other proceeding instituted for the purpose, a right given him by such statute, though it be merely a right' to a particular remedy, or a right relating only to the remedy, as distin-guishd from a right of property, or of action or defence, such right will be so far regarded as a vested right that it will not be construed to have been taken away by a subsequent statute, without express words for the purpose, or clear and necessary implication. This is the plain result of the authorities as well in Virginia as in Eng. land. See Beatty v. Smith, 2 Hen. & Mun. 395, on construction of the act of 1804 , 3 Shepherd’s Statutes at Barge, p. 98, \ 2; Price v. Kyle, 9 Gratt. 247, 251 (last paragraph of the report), a decision on the construction of the 1st clause in sect. 35, ch. 182 of the Code, edi. of 1869, p. 750; Gallego v. *-Quesnall’s Adm’r, 1 Hen. & Mun. 204, a decision by Chancellor Taylor upon the act in 3 Shepherd’s Statutes, p. 98, ? 3; Pinhorn v. Sonster, 14 Bng. L,aw & Bq. 415, S. C. 8 Bxch. R. (Welsby H. & Gordon) p. 138. _ The principle established by these adjudications is in no wise contravened by the case of Mc-Gruder v. Byons, 7 Gratt. 233; for there the petition for an appeal was not filed until after the first of July, 1850, when the new Code went into operation. Here the plaintiffs below (appellees in this court) had not only brought their suit, but had actually sued out a commission for taking their own depositions as witnesses in the case, and had given the defendant due notice of the time and place of taking them, while the act of 29th January, 1864 (Acts of Assembly held at Alexandria, commencing 7th Dec’r, 1863, p. 17, ch. 12), was in full force, and before the passage of the act of 2 March, 1866 (Acts of 1865-6, p. 87), by which it is contended that those depositions were rendered inadmissible as evidence on the trial.
    The principle of the decisions above cited (to which that of Pugh’s Bx’or v. Jones, 6 Beigh 299, 311, 313, 314, is very analogous), would be exactly applicable to the present case, if the question here were merely whether the pre-existing competency of those depositions under the law of 1864 had been impliedly annulled by the provisions in the law of 1866 and if the law of 1866 had neither expressly repealed the law of 1864, nor contained any saving clause. There is, however, such express repeal, and there is a saving clause; and it becomes necessary to consider the effect of them.
    II. Bven if the act of 2 March, 1866, had consisted merely of a clause repealing the act of 29 January, 1864, such repeal, it is insisted for the appellees, would not have repealed their pre-existing right to have their depositions taken in the cause, and read at the trial of it. See ch. 16, | 18 of the Code, edi. of 1860, p. 115, *16; and the opinion of the court in Philips v. Commonwealth, 19 Gratt. 485.
    III. The act of March 2, 1866, provides in the first section, that “in all cases, both at law and in equity, the evidence of parties, except in cases in which such evidence is admissible under laws now in force, shall be given ore tenus, and not by deposition. ” The law of January 29, 1864, notwithstanding its repeal by the 5th section, was clearly one of the laws referred to by the exception in the 1st section as “laws now in force.” And the cases excepted were clearly some sort of cases which had arisen under pre-ex-isting laws, and which, at the time of enacting the law of March 2, 1866, were already in some state or stage of existence. All preexisting cases may be arranged under some one or other of the following classes: 1. Cases in which the cause of action arose prior to the act of 1864; 2. Cases in which the cause of action arose after the act of 1864, but no suit had been brought before the act of 1866; 3. Cases in which the cause of action arose, and the suit was brought, after the act of 1864 and before that of 1866; 4. Cases in which the cause of action arose, the suit was brought, and the commission or notice for taking the deposition of a party to the suit was sued out, or served, after the act of 1864 and before the act of 1866; 5. Cases in which, in addition to the facts under the last head, the deposition of the party to the suit had been actually taken and filed before the act of 1866. Here the plaintiffs had sued out the commission (which was required by law, they being residents of New York), and had given notice to the defendant of the time and place of taking the depositions, before the act of 1866 was passed; and in those respects, as well as in others, recited as constituting the 4th of the above classes, their case belongs, according to its literal facts, to that fourth class. But it may well be questioned whether they are not legally entitled to have *their case regarded as favorably as if it belonged to the 5th class; as if their depositions had been taken and filed before the passage of the act of March 2, 1866; for, from the settled practice in Virginia of tardy promulgation of acts of the Legislature, it may be assumed as certain that the plaintiffs, their counsel in New York, and the commissioner there for taking the depositions, were, on the 6th of March, 1866, when the taking of the depositions commenced, and thenceforward until the 12th of April, 1866, when the depositions were closed, totally ignorant (as the plaintiffs’ counsel in Richmond were also) that the act of March 2, 1866, had been passed: and under such circumstances of ignorance, at the time and place of .taking depositions that facts had supervened which, in strictness of law, annulled the authority to take them, the depositions were nevertheless adjudged to be admissible as' evidence in the cases of Crew v. Vernon, Cro. Car. 97; Thompson’s case, 3 P. Wms. R. 19S; Sinclair v. James, 1 Pickens R. 277; Thompson v. Took, 1 Dickens R. 115; and Peters v. Robinson, 1 Dickens R. 116. But whether the case of these plaintiffs belong to the 5th class above stated, or only to the 4th, it is insisted that the exception in the statute of 1866 must, upon the narrowest construction that can possibly be given to it, embrace both the 4th and 5th classes at least, if no others, since in both of those it is an element, that the party had already made and declared (by adopting the mode of proceeding prescribed by law for the purpose, that is, by siting out a commission, or serving notice upon the opposite party, or both,) his election to give his evidence by deposition, instead of ore tenus; in doing which, the incurring of some cost, more or less, would also be a necessary concomitant.
    IV. The act of March 2, 1866, was null and void., for want of compliance with the requisition of the constitution that “no law shall embrace more than one ^object, whicn shall be expressed in its title.” (Constitution adopted by the Alexandria convention which assembled Peb’y 13, 1864, art..iv, sect. 16, p. 13; the same provision, in the same words, being also found in art. iv, sect. 16, of the constitution of 1852, and in art. v, sect. 15, of the existing constitution.) The title of the act in question is merely this: “An act to repeal an act entitled an act relating to witnesses, passed by the General Assembly of the restored government of Virginia on the 29th day of January, 1864.” The only object expressed in the title is that of the fifth section, which singularly happens to be the only immaterial section in the act; and the omission of reference to which in the title, if that had expressed the object of the previous sections, would have been of no consequence. See Gabbert v. Jeffer-sonville Railroad Co., 11 Ind. R. 365; Gid-dings & wife v. Cox, 31 Verm. R. 607. That this defect in the title rendered the act null and void is shown by the cases of Parish of Bossier v. Steele, 13 Bouis. An. R. 433; McWherter v. Price, 11 Ind. R. 199; Prothro v. Orr, 12 Georgia R. 36; Chiles v. Munroe, 4 Mete. Ky. R. 72; Cannon v. Hemphill, 7 Texas R. 184, 208; People v. Mellen, 32 lili. R. 181. The case last cited, which is exactly similar to the present, shews also that in such a case the defect of the title annuls the whole of the act, including the repealing clause, notwithstanding the object of that clause may have been fully and clearly expressed in the title. See also Oatman v. Bond, 15 Wise. R. 20; Childs v. Shower, 18 Iowa R. 261, 272; Tims v. State, 26 Alab. R. 165, 170; State v. Da Crosse, 11 Wise. R. 51, 54, 56; Devoy v. Mayor &c. of New York, 35 Barb. R. 264; Shepardson v. Milwaukee &c. R. R. Co., 6 Wise. R. 605. Here it is impossible to suppose that the legislature could ever have intended that, under any circumstances whatever, the repealing clause should operate alone and without the other provisions of the act, thereby reviving the *whole common law disqualification of witnesses on account of interest.
    The Legislature itself appears to have been satisfied that the act of March 2, 1866, was vitiated by the defect of the title; for a subsequent act was passed, on the 29th of April, 1867, for the sole purpose of amending the title. Acts of 1866-7, ch. 122, p. 948.
    It follows that the motion to exclude the depositions of the plaintiffs on the trial of the present case was properly overruled.
    
      
       Statute — Retrospective Effect. — As to the retrospective effect of statutes, see the principal case cited in Price v. Harrison, 31 Gratt. 121; Carter v. Hale, 32 Gratt. 119; Curran v. Owens, 15 W. Va. 224, and foot-note to Price v. Harrison, 31 Gratt. 114, where many cases on the point are collected.
    
    
      
       NOTE by the Reporteb. — By the act of February 7,1867, Sess. Acts, p. 615, the first section of the act of March 2,1866, was amended; and under this last act a party in a cause may give; his evidence as a.ny other witness may; except that, “in any case at law, the court may, for good cause shewn, require any party to attend in person and testify, or exclude his deposition upon his failure to attend.”
    
   STAPBES, J.,

delivered the opinion of the court.

It is settled that vested rights, acquired under a statute, are not affected by its repeal. The rule is, however, different with regard to rights that are merely inchoate and executory, unless, indeed, they amount to a contract within the meaning of the constitution. As was said in Butler v. Palmer, 1 Hill N. Y. R. 324, the true principle to be deduced from all the case is, that inchoate rights, derived under a statute, are lost by its repeal, unless saved by express words in the repealing statute; otherwise, in respect to such civil rights as have been perfected far enough to stand independent of the statute; or, in other words, such as have ceased to be executory and have become executed. In Key v. Goodwin, 4 Moore & Payne, a deposition had been taken, which was perfect and complete in every respect, except that the party had inadvertently omitted the act of enrolment until after the repeal of the statute under which it was taken. A strong effort was made to read the deposition as evidence; but the court, after much consideration, decided against the application. Ierd Ch. J. Tindall said, “I take the effect of a repealing statute to be to obliterate it, the statute repealed, as completely from the records of Parliament as if it had never been passed, and that it must be considered as a law that *never existed, except for the purpose of those actions or suits which were commenced, prosecuted and concluded whilst it was an existing law.”

In Ansell v. Ansell, 14 Eng. C. L. R. 451, Lord Tenterden decided that the statute requiring a written promise to take a case out of the operation of the statute of limitation, had relation to the time of trial; and a parol acknowledgment made before the statute came into operation was insufficient. This decision was grossly unjust to the plaintiff, to say the least of it. He commenced his suit, founded on a verbal promise, which at the time was sufficient ground for the action; but upon the trial he was told, the statute having passed in the meantime, he must produce a writing or fail. Whether this construction be a sound one or not, it was followed by the court of Common Pleas, and by the King’s Bench in Fowler v. Chatterton, and by some of the most eminent judges of England at nisi prius. Periburn v. Sonster, 14 Eng. Law & Eq. R. 415, cited by counsel for appellee, was decided expressly upon the ground that the common law procedure act; abolishing special demurrers, had reference to future pleadings exclusively, by the very terms of the enactment. This case does not conflict with any of those cases which decide that statutes merely affecting the remedy may be repealed at the pleasure of the Legislature, unless such repeal impairs the obligation of a contract.

The rule as to acts done under a statute repealed, is clearly laid down in Springfield v. Hampden, 6 Pick. R. 501. Parker, C. J., said: “The position that anything done under a statute while in force, remains valid, though the statute may afterwards be repealed, is undoubtedly true; but goes no farther than to render valid things actually done; but when the things themselves are merely preliminary, the principle does not authorize a further proceeding in order to render them ^'effectual. There is no such thing as a vested right to a particular remedy.

In Campbell’s Adm’r v. Montgomery, 1 Rob. R. 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.

These principles apply most strongly to statutes affecting rules of evidence, which are universally regarded as pertaining to the remedies a State may afford its citizens, and not as constituting a part of a contract, or as being the essence of a right. They are, therefore, at all times, subject to the modification and control of the Legislature, like other rules affecting the remedy, and the changes which are enacted may be made applicable to existing causes of action, even in those States where retrospective laws are forbidden. Cooley’s Constitutional Limitations, p. 367.

Let us apply these plain and well-settled principles to the case under consideration. The deposition was taken on 6th March, 1866: four days after the repeal of the act of the 29th January, 1864. It was, therefore, taken under a statute which had no existence. The right to use it as evidence depended upon a law which was as completely obliterated from the records as if it had never been passed. The act March 2d, 1866, not only repeals the act of 29th January, 1864, but declares that, in all cases, parties should give their testimony ore tenus. No distinction is made, or attempted, between pending cases and such as should thereafter be brought. So that we have not merely the repeal of the statute, which alone conferred the right to take the deposition, but also an express legislative declaration that parties should testify orally and not by deposition.

*It is, therefore, perfectly clear, that the deposition could not be read under either or both of these statutes standing alone, or as modified by the general principles of law, applicable to vested rights. Can the defendants in error derive any aid from the provision contained in sec, 18, chap. 16, Code of 1860. That section declares that no new law shall be construed to repeal a former law as to any act done, or any right accrued, or claim arising, under the former law; or in any way whatever to affect any act so done, or any right accrued or claimed, arising before the new law takes effect, save only that the proceedings thereafter had shall conform, so far as practicable, to the laws in force at the time of such proceedings.

Provisions almost identical with this enactment are found in the revised statutes of New York and Massachusetts. In both States they have been the subject of discussion and judicial decisions ; and in neither State have they been held to have the effect sought to be given to similar language in our statute. According to the New York decisions, when a statute is repealed, under which a suit has been commenced, and no provision is made for the prosecution of such suit, it is to be conducted under the repealed statutes. But when the revised statutes have modified the proceedings in such suits, then such modification is to be adopted. Overseers, &c., of Milan v. Supervisors of Dutchers, 14 Wend. 7 3.

In People v. Livingston, 6 Wend. R. 526, a creditor had acquired a right of redemption under a certain form, under the then statute of executions, which, by an enactment in 1828, was to be repealed from and after the 31st Dec., 1829. The repealing statute substituted a new form of redemption. It was held tha t an attempt, after the 31st December, to redeem after the old form was nugatory. The right to redeem in a certain form being inchoate, and not expressly reserved *by the repealing statute, ceased with the old law. The same doctrines were applied in Butler v. Palmer, 1 Hill’s R. 324.

In McCotter v. Hooker, 4 Seld. R. 497, 514, a question arose as to the right to read a deposition taken under a statute after-wards repealed. The New York Code of 1848 permitted the deposition of witnesses within the State to be taken in certain cases where they could not be taken at common law, and declared they should be received in evidence on the trial. It was held that the repeal of these provisions, without any saving .clause, left depositions taken under them incapable of being read'on the trial. Judge Gardner, delivering the opinion of the court, said the repeal deprived the defendant of no right; it did not shut out the evidence by particular facts, but merely regulated the manner in which it should be given to the jury.

Similar decisions have been made in Massachusetts under the revised statutes of that State. In Robbins V. Holman, 11 Cush. R. 26, a motion was made to enter a nonsuit, in consequence of the failure of the plaintiff to answer certain interrogatives within the time required by an act passed during the pendency of the suit. It was objected that it was manifestly unjust to apply the act to pending cases.

The court held that the mode of conducting a suit, or the rules of practice regulating it, are not the subject of vested rights. It might as well be contended that the party had a right1 to have his action tried in the court under the same organization as it existed when the suit was instituted, or by the same number of jurors, as to contend that the rules of evidence, or form of proceeding, the form of the plea and answer, may not be changed so as to affect all future trials, whether of actions then commenced or subsequently instituted. If the law is objectionable as violating vested rights then pending, why not equally so as to all causes of ^action then existing. The mere fact of having instituted a suit does not give any additional vested rights. It is the demand or claim that cannot be interferred with by legislative enactment. See, also, ex parte Lane, 3 Metc. R. 213; De Witt v. Harvey, 4 Gray’s R. 486; Bickford v. Boston & Lowell R. R. Comp., 21 Pick. R. 109.

The case of Price v. Kyle, 9 Graft. 247, relied' upon by counsel for defendant in error, is not in conflict with these decisions. In that case it was decided that the judgment of the court below should -be affirmed without damages, the petition for a supersedeas having been presented before the 1st of July, 1850, though the writ'of error and supersedeas was awarded after that day. The reason is apparent. The prefering a petition to the appellate court is the commencement of the proceedings in the court; and the appeal is regarded as pending from that time. It was, therefore, a pending case from the day of the presentation of the petition. And as the second section of chap. 216 of the Code of 1849, provided that the repeal therein mentioned should not affect any suit, prosecution or proceeding pending on the 11th day of July, 1850, the appeal was to be decided according to the law in force before that day.

In McGruder v. Lyons, and Yarborough & wife v. Deshago, 7 Graft. 233 and 374, the application for the appeal was made after the 1st day of July, 1850, from decrees rendered previous thereto. In the first case it was held that the law, as contained in the revised Code of 1849, limiting appeals to $200, applied to the case. In the other case the party had presented his petition and delivered the record to the clerk within five years, and was therefore entitled to an appeal under the law in force when the decree was rendered; but five years had elapsed before the bond was given as required by *the law in the Code of 1849; and it was held that the appeal was not taken in sufficient time.

The provision in the Code now under consideration protecting “rights accrued” was especially relied on in each of these cases. The court, however, was of opinion that as laws allowing appeals merely affect the remedy, the section in question did not operate so as to save the party a right of appeal. A party may, under the faith of existing laws, postpone his application for an appeal, or he may employ counsel and incur the expense of procuring voluminous records, and before his petition can be presented the Legislature changes the law under which he reposed with entire confix dence, and deprives him effectually of all remedy.

Injustice so gross led to the adoption of a special provision in the act of 22d June, 1870, declaring that a right of appeal, under the old law, should not be affected by the provisions of the new law limiting a right of appeal to two years. But if, under such circumstances, a right of appeal is not “a right accrued” within the purview of section 18, chap. 16, of the Code, it is difficult to understand by what process that section can be so construed as to confer a right to testify by deposition, because a commission has been procured and notice given that the' deposition would be taken. The notice is for the benefit of the opposite party, and the commission the warrant to the non-resident officer. They are conditions imposed, and do not confer a vested right, nor the essence of a vested right. These acts, and others of a similar character, the manner in which juries are to be empanneled, rules to be held, and witnesses are to testify, are merely the proceedings jn a cause required by the statute to be in conformity to the laws in force when they are had.

In this case it was not proved, or even suggested upon the trial, that the objection to the deposition operated *as a surprise to the plaintiffs, or that they would sustain any loss or damage by its rejection. It might have been more inconvenient and expensive to them to attend the trial and testify ore tenus than by deposition but it could divest no right to require them to do so. The argument of mere personal inconvenience cannot prevail against the plain letter of the statute; nor can it serve as the foundation of a right to a particular remedy after the law is repealed affording such remedy; more especially where the legislature has furnished another, equally beneficial and efficacious.

It is insisted, however, that the act of March 2d, 1866, is null and void, because it does not conform to the constitutional provision, which declares that “no law shall embrace more than one object, which shall be expressed in the title.” Some of the judges are of opinion that the act is substantially in compliance with this provision of the constitution; that it was intended and operates as a repeal of the act of July 29th, 1864, independent of the repealing clause therein contained. And further, the legislature having amended the title to the act of 1866 at an early period, and the said act, both before and subsequent to said amendment, having been accepted and recognized without objection throughout the State as a rule of action, it is now too late to raise the question of its constitutionality.

Again it is to be considered how far the repealing clause in the act of 1866 is operative, although every other clause in that act may be liable to the constitutional objection suggested. The rule is certainly well established, that where the act is broader than the title the courts will give effect to so much of the act as is covered by the title. Whether such a construction could be given in this case consistent with the manifest purpose of the Legislature, is a question upon which there is also some difference of opinion.

Again, some of the judges are strongly inclined to *hold that this provision in the constitution is simply directory; intended not as an absolute limitation upon the power of the Legislature, but as a guide to its judgment. The question is a grave one,upon which there is much conflict of authority, and will be decided by this court, if ever presented, only upon the most careful and deliberate consideration.

This diversity of opinion among the judges does not change the result to which they arrive; as all concur in the opinion that the Circuit court erred in permitting the depositions to be read; and for this reason the judgment of the Hustings court, and that of the District court, must be reversed.

Judgment reversed.  