
    Elliott’s Executor v. Lyell.
    [Saturday, October 23, 1802.]
    Joint Bonds — Death of One Obligor — Survival.— where a joint bond was given before the act of 1786, and after that act went into operation, one of the obligors died living the other, the obligation survived, and the executors of the deceased were exonerated.
    In the year 1798, Lyell, as assignee of Parish, brought debt against Robert Elliott, executor of Richard Elliott, upon a joint bond given,by the *said Richard Elliott, Thomas Butler, and William Walker, to Parish, on the 17th day of October, 1782, and assigned by Parish to the plaintiff. Plea, Payment, and issue. Upon the trial of the cause, the defendant filed the following bill of exceptions: ‘ ‘The plaintiff offered in evidence to support the issue oa his part, a bond in these words: (Know all men, &c. setting1 it forth:) To which the defendant excepted, and applied to the Court to instruct the jurjr, whether the action against the defendant, as executor of Richard Elliott, deceased, under the law, is maintainable or not; and, if not, that they should find for the defendant; but, the Court being of opinion that, as the testator Richard Elliott is admitted to have died since the commencement of the act concerning partitions and joint rights and obligations, passed in the year 1786, [c. 60, 12 Stat. Larg. 349; c. 98, § 3, R. C. ed. 1819,] his representatives are by that act made chargeable upon the said obligation, though joint, in the same manner as such representatives might have been charged, if the obligors had been bound severally, as well as jointly, refused to instruct the jury accordingly.” Verdict and judgment in favor of the plaintiff; and the defendant appealed to this Court.
    Hay, for the appellant.
    The question is, whether, as the bond in this case was joint, the obligation as to Elliott did not expire with his death, so that no action can be maintained against his executors, notwithstanding he survived the act of 1786, concerning joint rights and 'obligations? ' At common law, the executors of one joint obligor were clearly discharged by his death, living the other obligor; and, as the bond in this case was given prior to the act of 1786, the situation of the parties was not varied by that law; which only affected subsequent bonds. The principle contended for, is established by the decision of this Court, in the case of Craig v. Craig, 1 Call 483.
    Robertson, contra.
    After the case of Harrison v. Eield, 2 Wash. 136, and Richardson v. ^Johnson, 2 Call S27, I should not have contended in favor of the judgment of the District Court, if I did not conceive there was a manifest distinction between the cases. In both those, the obligor died before the act of 1786; but, in this, he survived ; and, from that circumstance, results a difference, which supports the judgment of the District Court. Eor, upon this state ■of the case, the act merely operated as a modification of the remedy, and not as a creation of a right; because, both obligors having survived the act, and being each liable to the creditor, the Legislature might very properly .give a new mode of enforcing it. So that it was still the old right, with a new remedy: which it never has been denied the Legislature might afford, if there was no variation of the right. The case of Craig v. Craig, is not 'like this; for, there the action was not commenced, when the act of 1795 took effect.
    Randolph, on the same side.
    The nature of the contract was not changed; but, the law, as to that, remained as it was before; and, only, a new remedy was given. For, the obligation was in continuance at the ti'me of the act; and, therefore, there would be no impropriety in making his executors liable. Both parties must have intended, at the time of making the bond, that there should be a payment of the money at all events, and that the death of one of the obligors should not vary the right, or exonerate his executors. None of the cases, decided in this Court, are repugnant to what we contend for. Turner v. Turner’s ex’x, 1 Wash. 139, was an express creation of a right; and, in Harrison v. Field, the obligor died before the act of 1786.
    Hay, in reply.
    The case of Craig v. Craig, is expressly in point; for, it was decided there, that the assignee could not maintain the action, notwithstanding the act of 1795. It is said, that the Legislature may add a rem- - edy, but not a right: whether *this be correct, or not, is immaterial at present; for, the distinction will have no influence in this case: Because, the construction contended for, upon the other side, is the creation of a right, expressly; for, without the act of Assembly, the executors would not have been bound. So, that the contract would be carried further than by the existing laws, at the time of giving the bond, it would have been carried. If there be a contract which did not bind the heir at the time of making it, and after-wards a law is made, binding heirs in contracts of that kind, the heir who was not bound by the contract made prior to the law, will not be affected by it.
    Cur. adv. vult.
    At another day in this term, the cause was re-argued by Randolph and Hay.
    Randolph. The act clearly meant to include all cases of joint obligations, where the obligors were living, at the time the act took effect. The word bound, includes bonds made before, as well as those made after, the passage of the law; it is the same as if it had been bound, or to be bound; like the words procreatis and procreandis. It is admitted, that vested rights cannot be taken away by the Legislature: but here, Elliott was himself the principal in the bond, and bound, both at law and in equity, to pay it. His executors cannot, therefore, be received to say, that he had a right, at his death, to transfer the debt from his executors to the securities, and that the Legislature could not take it from him: What we contend for, is no more a destruction of right, than the law endures in various other instances; as in the case of Carter v. Tyler, 1 Call 165, where the rights of the issue in tail, and of the remainder-man, were adjudged to be barred by the act, and yet it was as perfect, and more conscientious than the right of Elliott could be in this case. In short, it was a mere contingency, whether he would survive the others or not, *and could no more be called a vested right, than the expectations of the heir, before the laws altering the course of descents, and converting slaves into personal estate. At any rate, as the executors were clearly liable in equity, according to the case of Harrison v. Field, 2 Wash. 136, the Legislature may be strictly said to have only created a remedy, and not a right. In other words, they have only given redress against the executors in a Court of Law, as well as in a Court of Equity.
    Hay, contra.
    
      That Elliott was the principal in the bond, does not appear; but, if it did, that circumstance would not make any difference, because, whatever a Court of Equity might do, it is clear, that at law, the executors were exonerated; and a Court of Eaw will not take notice of what a Court of Equity would do. The word bound has not the retrospective effect ascribed to it, and is not to be assimilated to the construction of procreatis by Lord Coke. Eor, that is done for the express purpose of supporting the will of the donor; but, it certainly never could be the intention of the Legislature to bind a man further than he was bound by the original terms of the contract.
    Randolph. Elliott being first named in the bond, is conclusive to shew that he was the principal.
    Hay. That is not a necessary inference.
    Cur. adv. vult.
    Hay, for the appellant.
    The only question is, whether the act of 1786 operates on bonds then in being, as well as upon bonds thereafter to be executed?
    I contend for the latter:
    The act, in speaking of joint-tenants, | 1, uses words of the present time only; for, the expression *is, joint-tenants who now are: When, therefore, these words are dropt in \ 3, it is conclusive that the Legislature did not intend to affect existing bonds. Otherwise, it is impossible to account for the difference of the language in the two sections: And a good mode of ascertaining the meaning of a statute is, by comparing the different parts together, to discover what was the probable intent from a connected view of the whole text. Co. Litt., 381.
    It is a general rule, that statutes operate prospectively only. 19 Vin. Abr. S24; Rule 121, 122; 6 Bac. Abr. [370, Gwil. ed.] The Court, therefore, ought never to allow a statute to have a retrospective effect, unless compelled by plain words: And there are none such, in the present case.
    It is also a rule, that such construction ought oto be made, as to leave no clause, or word, superfluous. 19 Vin. Abr. S28, Rule 160; 6 Bac. Abr. [380, Gwil. ed.] But, if the word bound means those already bound, as well as those thereafter to be bound, the word joint-tenants means those who now hold jointly, as well as those who shall hereafter hold jointly. If so, the words who now are, become altogether superfluous.
    It is a universal rule, that contracts shall be governed by the laws of the country, where made. [Warder v. Arell,] 2 Wash. 282 ; [Robinson v. Bland,] 1 fm. Black. Rep. 258. Therefore, an usurious contract made in France, may be enforced in England; although the act of Parliament is positive, that all contracts, for more than the legal interest, shall be void: But, an exception is allowed in the very teeth of the act, upon the self-evident principle, that contracts ought to be governed by the laws of the country, where made: It is equally obvious, that contracts ought to be P'overned by the law's of the country, when made: And, if one exception is allowed, so ought the other. ,
    *Two objections, not perfectly consistent, are made:
    1. That the Legislature may change the remedy, but not the right; and, that here the right is not affected.
    But, the right is affected. Eor, if the law had not been passed, the executors of Richard Elliott, in the event which has happened, would have been exonerated; and so would his heirs also: Whereas, according to the construction contended for on the other side, both are bound now ; both the real and personal estate are liable for payment of a demand, from which, but for this law, they would have been exempted.
    The Legislature ought not to do this; and, therefore, it ought not to be presumed.
    Perhaps the Legislature cannot do it. The Constitution, \ 3, declares, that the Legislative and Judiciary branches shall be kept separate and distinct. It is, therefore, the province of the Legislature, to declare what the law shall be in future: And of the Judiciary, to expound what the law was, and is. But, if the Legislature make a law operating on existing contracts, they declare what the law is concerning those contracts, and depart from their duty, as much as the Judges would do, who should pronounce what the law shall be.
    This doctrine was maintained by this Court, in the case of Turner v. Turner’s ex’x, 1 Wash. 139.
    The propriety of what I contend for, is evinced by adverting to the consequence of establishing a different principle.
    Suppose, in 1785, a suit had been brought against the executors of one of Elliott’s co-obligors, *EUiott himself and the other being alive, the decision, in that case, would have been in favour of the executors. But, afterwards, Elliott dies, his executors are sued on the bond, and the same Court renders a different judgment.
    It is said, that the word bound, means now bound, because in gifts in tail, pro-creatis, means already begotten, as -well as to be begotten.
    This argument proves too much. Eor, according to Co. Litt. 20 (b) procreandis means the same, and extends to those already begotten also. Put the case then, that the word ligandi had been used, would the other side have contended in that case, that this expression included those already bound, because - procreandis included those already begotten? Surely not; for it would have been absurd.
    Randolph, contra.
    This case differs from that of Harrison v. Eield, 2 Wash. 136, in this, that here the obligor survived the act, but there he was dead before it was made. The Legislature, clearly intended to include cases of prior bonds; for the word bound, is the same as to be bound: In common parlance, they import the same thing; and so they do in law', for it is the same participle with pro-creatis, which Lord Coke, 1 Inst. 20, says, is the same thing with procreandis. This kind of phrase is very frequent in our statute book; and it is a good rule, in construing a statute, to compare the language with that of the Legislature in other places. Thus the act, concerning bills of exchange, uses the word given, although it imposes damages, and those damages would attach upon anterior bills. So infants at fourteen years of age, might formerly have disposed of chattels, which they have been since prevented from doing, until they are eighteen years old, by an express act of Assembly.
    Again, there is an act of Assembly which directs, that items beyond the period of limitation, *shall be expunged from open accounts; and it applies to prior, as well as to subsequent accounts. So the action of waste is given against other persons, and those, formerly liable. Once more, the act of 1793, R. O. 326, gives further remedy to sheriffs against their deputies, than they originally had. So, in 1792, the regulations made concerning coin, extend to antecedent transactions. In short, the language is familiar with the Legislature, and, consequently, there is every reason to conclude, that the extensive terms, used in this law, were intended to have a general operation, and to comprehend all persons then bound, or to be thereafter bound. This is evinced by the case of the joint-tenants, who are universally affected; as well those created before, as those created after, the making of the act. Then, as to the authority of the Legislature ; they had a moral power of doing it; and no injustice is done, as the obligors, at most, had only a chance of surviving each other. Besides, Elliott appears to have been the principal in the bond; and, therefore, his executors were clearly liable in equity. Bishop v. Church, 2 Ves. [sen. 101]. So that the act does not. create a new right, but merely gives an additional remedy for the old one. The principle which we assert, does not go further than the Court went, in the case of Gaskins v. Commonwealth, 1 Call, 194; in which it was decided, that an act of limitations applied to prior judgments. The argument founded on the doctrine in Robinson v. Bland, 1 Wm. Black. Rep. 2S8, has no weight; because the universal principle is, that the lex loci, where the contract is made, shall govern, independent of the laws of the country, where the suit is brought. The separate powers of the Legislature and Judiciary, under the constitution, has no influence; since the Assembly had a clear right to legislate upon the subject, and made no alteration in rights, but merely gave additional remedies.
    Cur. adv. vult.
    
      
      Jomt Bonds — Death of One Obligor — Survival—{for the proposition that upon the death of a joint obli-gor of a bond made prior to the Act of 1786, the obligation survives and the executors of the deceased obligor are exonerated, the principal case is cited and approved in Atwell v. Milton, 4 Hen. & M. 256; foot-note to Johnston v. Richardson, 2 Call 527; foot-note to Crawford v. Daigh, 2 Va. Cas. 521; Somerville v. Grim, 17 W. Va. 808; Reynolds v. Hurst, 18 W. Va. 654. See also, Harrison v. Field, 2 Wash. 136; Atwell v. Towles, 1 Munf. 181; Braxton v. Hilyard, 2 Munf. 49. See monographic note on “Bonds” appended to Ward v. Churn, 18 Gratt. 801.
      Statutes — Retrospective Effect. — In State v. Mines, 38 W. Va. 134, 18 S. E. Rep. 473, it is said: “A review of the subject confirms my opinion that the point of the syllabus we adopted in Stewart v. Vandervort, 34 W. Va. 524, 12 S. E. Rep. 736, that statutes are prima facie to have no retrospective effect, is correct. Authorities in support of that point are vast in volume, and from all auiprters. I refer to the discussion of the subject in that case, and cite the following additional Virginia and west Virginia cases asserting or conceding it for convenience of reference: Elliott v. Lyell, 3 Call 268; Warder v. Arell, 2 Wash. (Va.) 282; Com. v. Hewitt, 2 Hen. & M. 181; Day v. Pickett, 4 Munf. 109; Williams v. Lewis, 5 Leigh 686; McCance v. Taylor, 10 Gratt. 580; Duval v. Malone, 14 Gratt. 24; Price v. Harrison, 31 Gratt. 114 (sec foot-note); Crigler v. Alexander, 33 Gratt. 674 (see foot-note); Ryans’ Case, 80 Va. 385; Campbell v. Fire-Brick, etc., Co., 75 Va. 291; Robertson v. Gillenwaters, 85 Va. 116, 7 S. E. Rep. 371; Tennant v. Brookover, 12 W. Va. 343; Boge v. Brookover, 28 W. Va. 304; Thornburg v. Thornburg, 18 W. Va. 526.” See also, citing the principal case, Ex parte Hunter, 2 W. Va. 175; Duval v. Malone, 14 Gratt. 29 (see note); McCance v. Taylor, 10 Gratt. 585 (see note); Ashley v. Cornwell, 2 Munf. 271; Rice v. Efford, 3 Hen. & M. 231; Fisher v. Duncan, 1 Hen. & M. 575; Turpin v. Locket, 6 Call 169.
    
   *ROANE, Judge.

This is an action of debt, against the executors of Richard Elliott, on a joint bond entered into by the said Richard Elliott, with T. Butler and W. Walker, on the 17th of October, 1782. At the trial, the plaintiff having offered the bond in evidence to support his action, the defendant objected thereto, and applied to the Court to instruct the jury, “Whether the action against the defendant, as executor of Richard Elliott, is maintainable, or not?” But the Court being of opinion, that, as the obligor Richard Elliott died since the commencement of the act concerning joint rights and obligations, his representatives are made chargeable by that act, upon the said obligation, in the same manner, as if it had been several as well as joint, refused to instruct the jury, to the effect desired by the defendant.

The rectitude of this opinion, is now to be considered:

The question here, is not, whether the Legislature have power to pass a retrospective law, if it thinks proper? But, whether the general words of the act in question, shall be construed to have a retrospective operation?

Nor is the question here, whether the Legislature has power to transfer to a Court of Common Law, cognizance of a claim, which would, evidently, be established in a Court of Equity? There is nothing in this record, as it now stands, which would justify a Court of Equity in decreeing the money against the representatives of Richard Elliott, on the ground of a moral obligation in him paramount to the bond ; there is nothing which evidently shews, that he was the real principal, or received the benefit for which the bond was given: Whatever our conjectures may be on this point, 'the record does not bear us out on this occasion: And it was well observed by Mr. Hay, on the former argument, that for any thing known to us, *it might have been a joint debt, due for a joint benefit, received by all the obligors. This idea is rather strengthened by the circumstance of the condition of the bond extending to all the obligors, and not to Richard Elliott singly, and is perfectly consistent with the payments made by the obligor Richard Elliott.

The true question, then, to be decided, is that which was decided by the District Court: This record does not authorise us to distinguish between the cause of the principal and surety: And no other decision ought now to be given, than would be proper, if the representatives of the other obligors, instead of Elliott, were now before the Court.

At the time of entering into the bond in question, a right existed in each obligor, that his estate should be exonerated from the payment of the debt b3> his death, living his co-obligors. Mr. Randolph’s argument, that this is not a right, but a moral wrong, depends upon the assumption, that Richard Elliott was the real debtor. It is an argument which could not be used, if the other obligors were before the Court, and his assumption were well founded. ' The force of the argument depends, therefore, upon the assumption of a fact, which is not supported by the record. And this right inseparable from the contract, by the laws then in force, still existed, unless the words of the act of 1786 shall affect prior, as well as subsequent contracts.

These words are, “the representatives of one jointly bound with another for the payment of a debt, and dying in the lifetime of the latter, may be charged, as if the obligors had been bound severally as well as jointly. ”

Under the critical and grammatical meaning of this word “bound” as is contended, we are called on to give a construction to the act, which is contrary *to the general nature, and operation of a statute: Which will subject contracts to be decided upon by different laws, from those under which they were made; and which will produce a diversity of decision upon similar contracts, made at the same time, in consequence of the different periods at which the respective decisions may take place. When such consequences as these are to follow, I shall certainly disregard any construction founded merely upon the grammatical extent of the meaning of a word.

Every argument in favor of the lex loci, as was well argued by the appellant’s counsel, holds with equal strength in favor of the lex temporis: And I stand upon this broad principle, that men, in regulating their contracts, shall have the benefit of existing laws, and not have them overturned or a ffected by future laws,- which they certainly could not foresee, or provide against.

These ideas are not new ; they have had the sanction of solemn decisions, both in this country and in England.

In the case of Gilmore v. Shuter, T. Jones’s Rep. 108, [2 Show. 17,] there was a parol nromise in consideration of marriage, made prior to the statute 29 Car. 2, but to be performed after. That statute enacts, that from and after 24th June, 29 Car. 2, no action shall be brought, &c. without a note in writing. It was determined, notwithstanding these imperative words, that, after that day, an action would lie in the case in question: for that, a construction ought not to take effect destroying existing rights, prior to the passage of the law; and that the statute only extended to promises made after that day.

In the case of Couch, qui tam v. Jefferies, 4 Burr. 2460, which was an action by an informer for a penalty, and a verdict obtained by the plaintiff, a ^motion was made to stay the judgment, on the ground of a payment of the penalty having been made into the stamp office before the 1st September, 1760, under an act of Parliament which says, “that if the duties before neglected to be paid, shall be paid in, on or before 1st September, 1769, &c. the person who has incurred the penalty shall be discharged of, and from the said penalties.”

The question was, whether the act related to actions brought before the operation therof? It was decided, by the Court, that it did not; and it was said, by Lord Mansfield, “here is a right vested; and it is not to be imagined that the Legislature could, by general words, mean to take it away from the person in whom it was so legally vested. They certainly meant future actions. Otherwise, it would be to punish the innocent, instead of the guilty. It can never be the true construction of this act, to take away this vested right.”

The case of Martin v. Payne, in the Special Court of Appeals, June, 1793, was an appeal from a judgment of the District Court of Henrico, quashing an execution issued the 12th of January7, 1793, on a 12 months bond, dated in October, 1791 ; the Court reversed the judgment, being of opinion, that inasmuch as the remedy was provided by the act of 1787, although the said act might have expired, yet it was still in force, as to cases which accrued while it was unexpired, or unrepealed; and some of the Judges held, in their arguments, that the law was the same, as relative to bonds, the time of which had run out; thus, making no distinction between an imperfect, and a perfect right.

Fortified by such authorities, which entirely accord with my own sentiments, I have no hesitation to say, that the act of 1786, ought to be construed to extend only to future cases.

My opinion, in the present instance, being confined to the true question before us, nothing now *said can apply to a case, in which the Legislature has, in fact, passed a retrospective law; nor to a case in which they do ’> ot touch the right, but only alter the remedy; nor to a case, where a right is affected, but that right is a mere contingency, or possibility. Possibly, within these descriptions, or some of them, most of the cases put by Mr. Randolph from our Code of laws, may be found to fall. But, I do not deem it necessary to anticipate important and undecided questions ; whensoever they occur, they shall receive my best consideration. But, it is necessary to defend the decision of this Court in the case of Gaskins v. The Commonwealth. That decision neither affected the right, or the remedy; it only imposed a limitation of time, by construction of law, within which the remedy should be asserted. None of the fundamental principles in question were invaded by that decision.

For these reasons, I am of opinion, that the opinion of the District Court was erroneous ; that the judgment should be reversed; and a venire facias de novo awarded: and that an instruction should be given to the next jury, on the point submitted, corresponding with the ideas now expressed.

FLEMING, Judge.

The sole question is, whether the act shall have a retrospective operation? And I think it ought not: For, there is a difference between the expression with regard to joint-tenants, and that with regard to joint obligations. In the first, it is, in effect, that all joint-tenants, who now are, or hereafter shall be, entitled to any estate, may be compelled to make partition thereof; and, if partition be not made, the parts, of those who die first, shall not accrue to the survivors, but shall descend and be transmissible to their heirs and representatives; which comprehends, in terms, the joint-tenancies in being at the time of making the act, as well as those to be created afterwards. But, in the case of the joint obligations, the present *tense is entirely dropt; for there, the words are, that the representatives of one jointly bound with another, may be charged in the same manner as if the obligors had been bound severally, as well as jointly. Now, how are we to account for this difference in the language, except by a difference in the legislative will, with regard to the two cases? In one, the word now is anxiously inserted, because it was only forestalling the partition which the party might have made, and modifying the succession to the estate: In the other, it is omitted, because it would ■create a new obligation altogether, and render the party liable further than he had engaged; which would be to alter men’s contracts long after they were entered into, and thereby abolish the best established principles of justice: A consequence, Which gives a very unfavorable complexion to the claims of the appellee. Statutes are prima facie prospective in their operation; and retrospective laws, being odious in their nature, it ought never to be presumed that the Legislature intended to pass them, where the words will admit of any other meaning. ’ Every construction, therefore, which goes to introduce a retro-active effect, and by altering the engagements of men, to defeat justice, is contrary to the general system of an enlightened jurisprudence. Consequently, if the words be even doubtful, such a construction ought to be made as is most consistent with reason, and the rights of the parties to be affected. But, this will not be attended to, according to the interpretation which is contended for by the appellee’s counsel; for, there being no express declaration that existing bonds shall be included, and the words used being not only susceptible of a future sense, but the whole context of the statute manifestly pointing at a prospective operation, any construction which will produce an ex post facto effect, would absolutely be to strain the words, in order to change the contract, and vary the rights of the parties. But, as I cannot subscribe to an exposition productive of such consequences, my opinion is, *that the judgment should be reversed, and a new trial awarded, with an instruction to the effect which has been proposed by the Judge, who preceded me.

LYONS, Judge.

I have always considered ex post facto laws as. unjust and improper; but, in 10 Co. 55, it is said that acts of Parliament may have retrospect, if so intended; and Lord Hardwicke, in Lee’s Cases, 7, lays it down that a Parliamentary construction of a former statute ought to be regarde4- However, as such laws are, necessarily, oppressive, Courts have never been fond of giving a retrospective effect to a statute, if the words would admit of a construction more consistent with reason ; for, in cases of that kind, the rule is to follow the meaning, and not the words; especially if these tend to alter the terms of existing contracts, or to take away the rights, or property, of the citizen. 12 Mod. 687; 10 Mod. 513; [Rex v. Croke,] Cowp. 29. Whenever, then, the words are doubtful, the course is to enquire for the intention ; and, if possible, to avoid a construction which would destroy the principles of natural justice, and overthrow rights already acquired. Hence, in the construction of the statute of frauds, actions previously accrued were held not to be barred. [Gilmore v. Shuter,] 1 Ventr. 230; 2 Mod. 310, S. C.: and that for registering contracts of South Sea stock was decided not to extend to prior contracts. [Wilkinson v. Meyer,] 2 Ld. Raym. 1350; [1 Stra. 585, S. C.] It was upon these grounds that I founded my 'opinion in Turner v. Turner’s ex’x; and not upon the assumption of a power to control the acts of the Legislature, and declare them void, because not approved of by me. To apply these principles to the case now before the Court: The question, here, depends upon the true construction of the act of 1786, concerning joint rights and obligations. Por the appellee, it was contended, that the word bound has a retrospective operation; because, being the perfect participle passive, it may comprehend time past as well as future. But, there is no necessity for imposing this twofold sense upon *the word, when it is plain that the meaning of the Legislature can be better attained without it. Why extend the act to past contracts, when confining it to those which should be after-wards entered into, will 'satisfy the words, and produce a construction more consistent with reason and the rights of the citizen? The object of the law was to correct a subsisting inconvenience, and not to create one, by subverting principles. But, how was this to be affected? Not by altering old contracts, surely, but by regulating new ones. Not by adding further obligations to anterior engagements, but by attaching new qualities to future ones. Finally, not, by giving present creditors a further security, but by investing future obligors with additional rights. All this was consistent with the true principles of Legislation, but the other would have been repugnant to them. Of course, if the text be doubtful, the fair inference is, that the Legislature, who, without express words, ought not to be presumed to have willed injustice, intended to provide for future contracts only: And, if so, the grammatical construction is not to be regarded; but, such an exposition is to be made, as will best comport with the views of the Legislature, and the rights of the parties. This will be completely attained, by leaving anterior bonds as they were, and by rendering the estate of the decedent liable upon those to be made in future. I am, therefore, of opinion, that the judgment is erroneous, and ought to be reversed.

PENDLETON, President.

The bond on which the present suit is brought, is dated October 7th, 1782, by which three persons are jointly bound in the penalty of 6001. with condition to be void on payment of 3001. by either, in December, 1783. In 1786, an act passed, “that the representatives of one jointly bound with another, for the payment of a debt, &c. and dying in the life-time of the latter, may be charged by virtue of such obligation, in the same manner as such representatives might *have been charged if the obligors had been bound severally, as well as jointly.’’ At the time of passing this act,' all the obligors were living; but. before any suit, Elliott, one of them, died; by which, as the law stood when the bond was entered into, he was discharged at law, and the remedy was against the surviving obligors; but, this suit is brought against his executors, upon a supposition that this act gives to prior joint bonds, then existing, the effect of such as were joint and several; which is the opinion of the District Court; and, whether it be so, or that the act is to operate only on bonds entered into subsequent to its commencement, is the present question. It was well observed by Mr. Hay, that the Legislative provisions are to operate prosj)ectively; declaring what the law shall be, not what it is: And it must be acknowledged, that retrospective laws, usually termed ex post facto, that is, such as declare prior acts criminal, which were not so at the time they were done, or which either impair or give a new and important force to existing obligations or contracts, contrary to their situation at. the time they were entered into, are against the principles of natural justice. Citizens contract on a view of existing laws, without anticipating future regulations. The Federal Constitution has prohibited the State Legislatures from passing any such laws; and, although that is subsequent to the present act, I consider it as declaring a principle which always existed; a principle, adhered to by our Legislature in general, since, in all their repealing clauses, there is a saving of all rights vested under the former laws; but, more particularly in an act passed in January, 1788, which will be noticed hereafter.

The power of the Judiciary to declare a Legislative act void, as unconstitutional, has been lately *much agitated. On this occasion, we are not obliged to give an opinion on that general question, since, in my judgment, the Legislature did not intend that this clause, in the act of 1786, should operate upon prior joint bonds. The word bound may, in a grammatical sense, mean past bonds, or future, or comprehend both; and we are to enquire in which sense it was here used. The first evidence of intention, that it should operate futurely only, was properly drawn from the expression varying from that in the first clause respecting joint rights, speaking of joint-tenants who now are, or who hereafter shall be; and considering that, under former laws, a joint-tenant might at any time sever the jointure by his own act, the law seems only to have varied the remedy, and not to have affected the right. But, how did the law stand, respecting joint obligations, before this act? The death of one of the obligors wholly discharged him at law, and threw the obligation on the survivors. If the dying obli-gor was the principal, although discharged at law, his representatives were liable to the creditor in equity, because he was under a moral obligation to pay the money, independent of the bond; or, if his sureties paid the money, his executors are answerable to them, even at law, for their reimbursement. But, if the person first dying was a surety, his estate was totally discharged from the claim of the creditor, with whom he had equal equity: perhaps he might be liable to contribution at the suit of the other sureties in Chancery; but, on that, I give no opinion. On a joint and several bond, each, and their estates, were bound for the whole at law. Very properly, then, did they drop the expression, who now are bound, used in the former clause: And, when we are on construction what the Legislature meant by this general term bound, since giving it an operation on future bonds only, will give the word a meaning, shall we extend it to former bonds, and make them violate the great principles before stated? I think not. Arguments of public inconvenience have just weight in construction *of statutes ; and we were alarmed by the counsel, with a long list of our acts of Assembly, retrospective in their operation, which will be affected by the present decision.

I have looked over the laws referred to, and without giving an opinion upon them respectively, I can only observe, that in general, they merely vary the remedies on existing obligations, without adding to, or diminishing their original force: Which is the case of motions against Sheriffs and their securities and the representatives of both, and for Sheriffs against deputies arid theirs. Whbn the remedy was given by motion against the securities and their representatives, both were considered as bound by existing obligations; all those bonds being joint and several, unless made joint through mistake. But, suppose a surety, bound by a joint bond at the time that law passed, and after his death, which discharged him altogether, as the law was when he gave his bond, a motion is made against his executors for judgment under the new law; it would come to the present question, and would receive a like decision. The great case of docking estates tail, was partly mentioned by Mr. Randolph, and as I have often heard it complained of, it may deserve particular notice. That act did not take from any person, a right vested, either in possession, reversion or remainder, but unfettered them of limitations, which restrained their power of disposition of which they could not complain, since if they chose, that the land should go to the next heir in tail, they might still so dispose of it by deed or will. But, it disappointed the expectation of heirs, apparent: It would be strange indeed, if the Legislature was restrained from passing laws which might disappoint the hopes of men. But, what was the existing state of these expectations? In England, they might at any time be defeated by fine and recovery. Our Legislature in 1710, [Oct. 1705, c. 21, 3 Stat. Larg. 320,] prohibited that mode, and reserved to themselves the sole power of docking intails, which they exercised *by laws, passed in each particular case, till 1776, and then passed the general law, upon principles of public utility, preserving, as I said, all vested rights. Children of wealthy parents hope to succeed to a comfortable provision; but, shall that hope restrain the Legislature from passing laws, subjecting the whole property of the parent, if necessary, to the payment of his debts? The cases appear to me to assimilate. But, further to shew the intention of the Legislature to avoid the changing existing obligations, I would refer to the act passed in January, 1788, which I before mentioned, and was one of those in the counsel’s list: that act declared that the lands of the Sheriff, Coroner, or other public collector and their securities, may be taken on a fieri facias, on judgments to be obtained against them, with a proviso, that it should not extend ■to any securities who should have become so before the passing- of that act, plainly-distinguishing between the principal, (as to whom the remedy was only varied) and the securities, whose obligation was not to be changed. From whence, I presume, that if the Legislature had intended the clause now under consideration should comprehend prior obligations, they would have observed the same distinction between the principal and securities, and there would have been no objection to the law. But, they have not made the distinction; and since the Court cannot make it, but the latter as well as the former must be involved in the same decision, we must decide it as a general question respecting all the obligors; although it is probable, that Elliott was the principal in this case, from his being first named, and having paid part of the money. And X am of opinion, that the law does not respect this bond at all, but the creditor is left to his former remedy against the appellant in equity, or against the surviving obligor, who, in the event of their paying, may resort to the appellant for reimbursement. Upon the whole, there is error in the judgment, which is to be reversed by the unanimous'opinion of the Court.  