Hastings v. Lane

The opinion of the Court, after advisement, was drawn up by Shepley J. The plaintiff’ recovered judgment against Lane at the September term of the Court of Common Pleas, 1830. A pluries execution issued thereon the 25th day of December, 1835, by which Lane was committed to prison on the 29th of February, 1836, and released on the same day upon executing the bond now in suit. On the 25th day of November following, he surrendered himself to the keeper of the jail and went into close confinement. The bond appears to have been taken according to the provisions of the fourth section of the stat. of 1822, c. 209 ; and the twenty-first section provides for the surrender of the debtor within nine months and three days in discharge of his bond. The eighth section provides, that nothing shall be a breach of the bond, except the prisoner’s passing beyond the exterior limits of the jail yard, and his neglecting to surrender himself, as provided by the twenty-first section. If the final process issuing upon this judgment and the proceedings thereon are to be governed by the act of 1822, the debtor has not committed any breach of the bond. The plaintiff’s counsel contends, that the proceedings upon the final process should have been in conformity to the act of 1835, and such were the instructions complained of in this bill of exceptions. In the case of Dash v. Van Kleeck, 7 Johns. R. 477, Kent C. J. states it to bo a principle in the English common law, as ancient as the law itself, that a statute, even of its omnipotent parliament, is not to have a retrospective effect. The same rule is recognized in Whitman v. Hapgood, 13 Mass. R. 464. And such must be regarded as the settled rule, unless the intention to have it operate retrospectively is clearly expressed. There is nothing in the language of the act of 1835 indicating the intention to have it operate upon any suits already commenced, or upon the process arising out of [136] them. The design seems to have been to exempt all such process and proceedings from its operation, as decided in Gooch & al. v. Stephenson & al. ante p. 129. The debtor having performed the condition of his bond, this suit cannot be maintained. Several other questions were made in this case, but the one now decided being conclusive, it is not necessary to consider them. The exceptions are sustained and a new trial granted.