
    The Commonwealth v. Hewitt.
    Thursday, March 24, 1808.
    Writ of Venditioni Exponas — Statute—Prospective in Effect. — The act of the 19th of Jan. 1802, (Rev. Code, vol. 1, c. 295, p. 425,) which authorises Clerks of Courts to issue writs of venditioni exponas in certain cases, is prospective only, in its operation, and consequently does not extend to cases existing' before it was passed.
    Executions — Motion to Quash — Notice—Appeal.—A party may, without any previous notice, move the Court to direct an execution to be issued, (where the Clerk refuses to issue one,) or to quash an execution; and it will be so far considered a cause depending, that either party may appeal from the decision of the Court on such motion.
    Statute — Remedial — Retrospective Effect. —How a remedial act of Assembly may operate retrospectively.
    This was an ex parte motion made in the General Court, on the 15th of June, 1803, by the Attorney-General in behalf of the Commonwealth, to direct the Clerk to issue a venditioni exponas to the present sheriff of Stafford; the object of which was, to command him to expose to sale the land of Hewitt, which had been taken in execution by William Philips, a former sheriff, now deceased, and who had returned on several executions, “no sale for want of bidders.” No notice of this motion appears to have been given to any person.
    Hewitt had been a former sheriff, of Stafford County, and became indebted to the commonwealth for a balance of the revenue of 1791, for which judgment was rendered in the General Court. Between the 7th of February, 1793, and the 30th of June, 1797, several executions had issued in behalf of the Commonwealth against the lands and tenements, goods and chattels, of Hewitt, which executions came into the hands of William Philips, a succeeding sheriff. Philips returned on one of them, that he had levied it on certain lands and slaves, which were not sold for *want of bidders. Upon a venditioni exponas issued thereupon, accompanied by an order of the executive to remove the property, he returned that he had made part of the debt by the sale of the goods and chattels. Other writs of vendi-tioni exponas then issued, commanding him to make sale of the lands; but upon each of them, there was the same return, of “no sale for want of bidders.” Before a sale of any of the lands of Hewitt was effected, Philips died.
    On the 19th of January, 1802,  an act passed, prescribing the mode in which property, taken in execution by a sheriff, and remaining unsold in his hands at the time of his death, shall be disposed of by his successor. After the passage of this act, on the 27th of Januarj', 1803, another writ of venditioni exponas issued to the “sheriff of Stafford,” which came into the hands of B. Ficklin, the then sheriff, who returned, “That by virtue of the writ he had advertised the lands and tenements therein mentioned for sale on the 4th of June, 1803, at which time and place, Elizabeth Philips, executrix of William Philips deceased, met the sheriff, and 'delivered all the right she might have in and unto the said lands and tenements, which the said sheriff offered for sale, but no sale for want of bidders.”
    A doubt having been suggested whether the act of the 19th of January, 1802, had a retrospective operation so as to embrace cases happening before the passage of the law, and consequently whether the last writ of venditioni exponas which came into the hands of Ficklin, with the proceedings thereon were warranted by law, the present motion was made. The General Court, instead of directing the clerk to issue another writ of venditioni exponas, overruled the motion, and quashed the former writ, which had issued the 27th of January, 1803, with the return thereon. From this decision the Attorney-General prayed an appeal, on behalf of the Commonwealth, to this Court. Whereupon the several executions against Hewitt were ordered to be made a part of the record, and to be certified as the only evidence offered to the Court on the trial of the said motion.
    *The Attorney-General,
    for the Commonwealth, contended that the act of the 19th of January, 1802, was intended to embrace all cases of executions, as well past as future. The language of the law is sufficiently comprehensive, and the mischief to be remedied, exists, as fully in the one case as in the other. The act, alter reciting in the preamble, that doubts existed whether on the death of a sheriff who may have taken property under execution, which may'remain unsold at the time of his death, there was any mode to compel a sale of such property, goes on to declare, that in all cases in which a sheriff, or other officer, taking property under execution, shall die before he sells it, the clerk of the Court shall issue a venditioni exponas to the sheriff of the County, in which the property was taken under execution, &c. In this case the sheriff did die, because it appears that his executrix attended on the premises and gave possession of the land.
    It is admitted that the original execution issrred before the passing of this act. But the preamble of the act, and the mischiefs which the Legislature intended to remedy, clearly point out its application to all cases of executions. On the construction of statutes, the Attorney-General referred to 6 Bac. Abr. Gwil. edit. 384. Tit. statute Let. (I) No. 5.
    Randolph, on the other side.
    It is admitted that the first venditioni exponas was awarded in 1793, and at this time there was no act of Assembly containing provisions similar to those to be found in the act of 1802. It is a question of no small importance, whether a person entitled to executions under former laws must take the steps authorized by the laws in being at the time, or whether he may avail himself of a statute subsequently passed. There never was a rule in construing statutes which says, that an act intended to be prospective will enable a party to go back so many years in applying it to pre-exist-ing cases. This act, indeed, says “whereas doubts exist,” &c. but if *the Court shall be of opinion that there was no doubt, and that there was no remedy at common law, then there is an end of the question. Can it be believed that the Legislature supposed that a venditioni exponas, which had issued more than nine years before the passing of the act, remained at that time unsatisfied? But it may well be doubted whether Hewitt was so far a party before the General Court as to justify the appeal on behalf of the Commonwealth.
    The Attorney-General, in reply.
    The principle, relating to retrospective laws, does not apply to the case before the Court. Where no existing right is violated, and only a new remedy given, or different directions to the officers of Court, the 'law ought to have an immediate operation.
    
      
       See Rev. üode, vol. 1, c. 295, p. 425.
    
   Wednesday, March 30. The Judges delivered their opinions.

JUDGE TUCKER.

This was a motion made in the General Court, in behalf of the Commonwealth, to direct the clerk to issue a venditioni exponas to the present sheriff of Stafford; the object of which was to command him to expose to sale the lands of Hewitt, which had been taken in execution by William Philips, a former sheriff now deceased, on which execution, Philips had made a return, “no sale for want of bidders.” After which, to wit, in January, 1803, another writ of venditioni exponas had issued, directed to the sheriff, of Stafford, upon which Eicklin, the then high sheriff made a return, “that he advertised the lands and tenements therein named for sale, and that Elizabeth Philips, executrix of William Philips deceased, late sheriff, at the time and place met the sheriff and delivered all the right she might have unto the said lands and tenements, which he offered for sale, and there was no sale for want of bidders.”

This motion was founded upon the act of 1801, c. 12, directing the mode in which property under execution, *and in possession of a sheriff at the time of his death shall be sold. It was contended that this act did not apply to cases existing before the act,: without deciding upon that point, I was inclined to think, that if lands be comprehended under the word property, the delivery thereof by the executrix of the late sheriff, to the succeeding sheriff, who proceeded to offer it for sale, removed all objections upon that ground; since the only controversy that could arise upon the operation of the law, must have been between those parties. I should therefore, probably, have thought the objection not sustainable upon that g-round only.

But I doubt whether this case is brought properly before the Court; it was an ex parte motion, not, as I conceive, against Hewitt; nor does he appear to have contested it; I doubt therefore, whether it was competent for the Attorney-General to appeal from the decision of the General Court upon that motion — or if he could, whether Hewitt can be considered as a party opposing it, and liable for costs. — -And as I entertain these doubts, upon both points, I submit to the opinion of the other members of the Court.

JUDGE ROANE.

As to the objection

suggested during the argument, and now doubted upon, by the Judge who preceded me, that there are not proper parties to justify the appeal in the present case, I think there is nothing in it. There was a controversy depending between the Commonwealth and Hewitt, which must be considered as depending, until consummated by means of the execution. This principle is avowed in Hendricks, &c. v. Dundass and has been acted upon in various other cases. In that case an execution and replevy bond was quashed on the motion of the plaintiff, of which motion no notice is shewn to have been given to the defendant; and in the same case another execution between the same parties had been previously quashed on the motion of the defendant. It would seem to follow that an equal right exists to procure the emanation *of an execution by the order of the Court, where the Clerk refuses to issue it, (and that without notice,) as to set aside one already issued ; and that an erroneous opinion of the Court in such case might be carried to a superior Court by appeal.

As to the merits of the case, it is said that the act of 1801, affects merely the remedy and not the rights of the parties; and that it has often been decided here, that the Legislature may act retrospectively in the case of remedies. If this be admitted it proves nothing in the present case, unless it be further shewn that the Legislature has in fact done so. It must be confessed, however, that the boundary line in relation to this subject cannot easily be drawn; and it is also well known, that this point has not been so far settled by this Court without considerable controversy, and encountering much strength of argument. We must consider that the Legislature were apprised o± the just objections which exist in the case; and, in forming a construction in a doubtful case, this circumstance will have its due weight.

It is argued in the present case, that an intention to embrace past cases is inferrable from the doubts stated in the preamble of the act, which are admitted to relate to cases of property already taken in execution ; and it is said to be the general construction that the remedy, provided by an enacting clause, is to be co-extensive with the evil it professes to remedy. While this general position is admitted, it is believed that a preamble cannot extend or restrain the operation of the enacting clause, when its meaning is expressed in clear and unambiguous terms. This I take to be the case in the present instance.

The act in question was passed the 19th of January, 1802, and commenced in force, from and after the passing thereof. This circumstance alone (although it applies to most statutes, and is, in truth, only a reiteration of the general principle that laws, in their nature, are only prospective) would go a good way to repel a retrospective construction. *If the clause in the act relating to its commencement was incorporated into the enacting clause in question, but little doubt could exist on the subject, and I will consider it as if it were so incorporated; that clause would then run thus: “Be it enacted, that from and after the passing of this act, in all cases in which a sheriff, or other' officer, taking property in execution shall die, it shall be lawful,” &c. It certainly can make no-difference in what part of the statute the clause prescribing its commencement is to be found; and this clause is to be considered as if it were set out and repeated in every distinct section of the act. — Therefore, upon this foundation; upon that of the general nature of acts, in relation as well to remedies as rights, which are prospective only; and upon the very words of this enacting clause, which are more properly future than past, I am of opinion that it only extends to future cases. The language of the preamble is too weak to resist the effect of these combined considerations: The attention of the Legislature, it would seem, was called to this subject, by doubts respecting past cases; but when it came to enact upon the subject, it confined its provisions to future cases. It was probably sensible of the objections which exist against retrospective laws, and therefore was unwilling to depart from the general principle, even in relation to this remedy, as'far as we can judge from the act itself. The words of the enacting clause do not admit of any doubt or ambiguity to justify an enlarged construction, by reason of the language of the preamble. It is here to be remarked, that in the cases in general, in which the effect of the enacting clause has been enlarged or restrained by the preamble, the construction related not to this question of prospective, or retrospective operation: But, taking the prospective doctrine as admitted, those cases related merely to the questions upon the subject matter of which the Legislature were acting. In those cases, therefore, one part of a statute was merely construed by reference to another, by taking a general view of the whole act: but *there was no great principle in those cases, as in this, turning the scale in favour of the enacting clause; the principle I now mean results, (as is before said,) both from the general nature of laws, and the particular time assumed by the act itself for the commencement of its operation. Even .this principle may be overruled in relation to remedies, by the clear and expressed intention of the Legislature; but in a case of doubt or ambiguity it must prevail.

I am of opinion that the judgment be affirmed.

JUDGE FLEMING.

It appears to me that the act passed the 19th of January, 1802, under which the motion for a vendi-tioni exponas, now the subject of discussion, was made, had a prospective and not a retrospective operation; construing it in the same manner as if the last clause, respecting the time of its commencement had stood in the forepart of the first enacting clause; as has been noticed by the Judge who last gave his opinion.

Under that act the venditioni exponas of the 27th of January, 1803, also issued: which was by the general Court quashed at the time the one now before us was moved for; on the ground, I suppose, (though the reason is not stated in the record,) that the act under which it issued, had no retrospective operation.

That opinion appears to me correct, and ought to affirmed.

By the whole Court, (absent JUDGE LYONS, )the judgment of the General Court affirmed. 
      
       2 Wash. 54.
     
      
       1 Wash. 93.
     
      
       6 Bac. Abr. Gwil. ed. 386, 387, and the cases there cited.
     