714 RETROACTIVE STATUTES OF sumption which cannot be overcome without a new promise or other unequivocal declaration of the debtor's purpose to waive the benefit so conferred; and as the length of this period depends upon the will of the legislature, it may be shortened at their pleasure, even as regards antecedent contracts, provided the bar is not immediate, and a reasonable time remains in which to sue. If, for instance, the legislature were to provide on the 1st of March that no debts should be recoverable unless the suit was brought on or before the first of the next ensuing year, the law might be impolitic or unjust, but would not be unconstitutional.2 Hence a law reducing the period of limitation retroactively from six years to three, might be valid if contracts of more than three years' standing were exempted from its operation; but a statute containing no such exception would conflict with the Constitution of the United States, by leaving rights of action dating farther back than three years without a remedy.3 1 Osborn v. Jaines, 17 Wis. 577; Terry v. Anderson, 95 U. S. 628; Smith v. Morrison, 22 Pick. 430; Peirce v. Tobey, 5 Metcalf, 172. 2 Terry v. Anderson, 95 U. S. 632; Kenyon v. Stewart, 44 Pa. 180; Folmar's Appeal, 68 Id. 482; Korn v. Browne, 64 Id. 55. 3 Osborn v. Jaines, 17 Wis. 573; Pearce v. Patton, 7 B. Monroe, 162; Berry v. Randall, 4 Metcalf (Ky.), 292; Mitchell v. Clark, 110 U. S. 636, 643; State v. Jones, 21 Md. 432; Willard v. Harvey, 24 N. H. 344; Morris v. Carter, 46 N. J. Law, 260. The principle which governs in such cases is stated in the following citation from Terry v. Anderson, 95 U. S. 632 : "This court has often decided that statutes of limitation affecting existing rights are not unconstitutional if a reasonable time is given for the commencement of an action before the bar takes place. Hawkins v. Barney, 5 Peters, 451; Jackson v. Lampshire, 3 Id. 280; Sohn v. Waterson, 17 Wallace, 596; Christmas v. Russell, 5 Id. 290; Sturges v. Crowninshield, 4 Wheaton, 122. It is difficult to see why, if the legislature may prescribe a limitation where none existed before, it may not change one which has already been established. The parties to a contract have no more a vested interest in a particular limitation which has been fixed, than they have in an unrestricted right to sue. They have no more a vested interest in the time for the commencement of an action than they have in the form of the action to be commenced; and as to the forms of action or modes of remedy, it is well settled that the legislature may LIMITATION, AND REGISTRY ACTS. 715 In like manner, a statute providing that antecedent grants shall be postponed if not recorded, may be valid if giving the grantee sufficient time to register his deed, but will be void if the effect is necessarily to invalidate the grant.1 In Jackson v. Lampshire 2 "it was accordingly declared to be within the undoubted power of the State legislatures to pass recording acts postponing the elder grantee to the younger, if the deed was not recorded within the proper time; and the power is the same whether the instrument is executed before or after the passage of the recording act. Such laws are analogous to statutes of limitation, change them at its discretion, provided adequate means of enforcing the right remain. In all such cases the question is one of reasonableness, and we have therefore only to consider whether the time allowed in this statute is, under all the circumstances, reasonable. Of that the legislature is primarily the judge; and we cannot overrule the decision of that department of the government, unless a palpable error has been committed. In judging of that, we must place ourselves in the position of the legislators, and must measure the time of limitation in the midst of the circumstances which surrounded them, as nearly as possible; for what is reasonable in a particular case depends upon its particular facts. Here, nine months and seventeen days were given to sue upon a cause of action which had already been running nearly four years or more. The liability to be enforced was that of a stockholder, under an act of incorporation, for the ultimate redemption of the bills of a bank swept away by the disasters of a civil war which had involved nearly all of the people of the State in heavy pecuniary misfortunes. . . . The business interests of the entire people of the State had been overwhelmed by a calamity common to all. . . . This clearly presented a case for legislative interference within the just influence of constitutional limitations. For this purpose the obligations of old contracts could not be impaired, but their prompt enforcement could be insisted upon, or an abandonment claimed. That, as we think, was done here, and no more. At any rate, there has not been such an abuse of legislative power as to justify judicial interference. As was said in Jackson v. Lampshire, supra, 'The time and manner of their operation [statutes of limitation], the exceptions to them, and the acts from which the time limited shall begin to run, will generally depend upon the sound discretion of the legislature, according to the nature of the titles, the situation of the country, and the emergency which leads to their enactment.'"' 1 Vance v. Vance, 108 U. S. 514, 518; Curtis v. Whitney, 13 Wallace, 68. See Priestly v. Watkins, 62 Miss. 798. 2 3 Peters, 290. VOL. II.-5 716 LIMITATION OF THE and like them do not impair the obligation of the contract. The time and manner of their operation, the exceptions to them, and the conditions under which they are to take effect, depend in general on the discretion of the legislature. Cases may occur where the provisions of such a law are so unreasonable as to be an annihilation of the right; but the case before the court is not one of them." So the legislature may require mortgages to be registered, though no such rule was in force when they were executed, and provide that they shall be invalid against purchasers without notice if the condition be not fulfilled.1 In Kenyon v. Stewart 2 the Supreme Court of Pennsylvania cited Jackson v. Lampshire as showing incontestably that a State might retroactively abridge the period within which the probate of a devise of real estate could be controverted in an ejectment brought for the land. 3 The rule holds good after judgment, and in McElmoyle v. Cohen a statute limiting the right of action on the judgments of other States to five years after they were pronounced, was held not to impair the obligation of the contract, or violate the constitutional provisions that such judgments "shall have full faith and credit." In the Bank of Alabama v. Dalton, an act of the Mississippi legislature providing that suit should not be brought on the judgments of other States after the lapse of two years, was held to be a defence, although the debtor had moved into Alabama after the period of limitation had expired, with a view to getting rid of his liability. The decision went on the ground that a State may regulate antecedent contracts, as well as subsequent, so long as it does not impair the obligation, and that while Congress could, agreeably to the Constitution of the United States, declare the effect of judgments, they had not exercised the power. 1 Vance v. Vance, 108 U. S. 514, 517. 2 4 Pa. 179. 8 Bank of Alabama v. Dalton, 9 Howard, 522; McElmoyle v. Cohen, 13 Peters, 212; 2 American Leading Cases (5th ed.), pp. 603, 662. 49 Howard, 522. RIGHT OF SUIT ON JUDGMENTS. 717 The right of the legislature to limit the time within which suit may be brought, results from their right to modify or control the rules of evidence; and both powers may be exercised retroactively in the same statute. In Korn v. Brown, an act providing that whenever no payment or demand shall have been made for or on account of a groundrent, annuity, or other charge on real estate for the space of twenty years, such charge shall be presumed to have been released or extinguished, was held valid, though operating retrospectively, because it was not to take effect until three years after its passage, and simply laid down a rule of evidence which could prejudice no one save through his own negligence. The lapse of twenty years raised a presumption at common law as against a bond, and the legislature might establish a like rule with regard to other obligations. Whether the bar of the statute of limitations can be removed after it has attached, is a different question, which should seemingly be answered in the negative, because the legislature cannot be supposed to have intended that the right should survive the extinction of the remedy.2 A statute authorizing a recovery under such circumstances is therefore unconstitutional, at all events as regards the title to land or chattels; but the reason must be sought in the amendment which protects vested rights from deprivation without due process of law, and not in the prohibition of laws impairing the obligation of contracts.3 1 64 Pa. 55. 2 Moore v. The State, 43 N. J. Law, 205; Moore v. Luce, 29 Pa. 262; Baggs's App., 43 Pa. 512; Leffingwell v. Warren, 2 Black, 559; Ball v. Wyeth, 99 Mass. 338; Atkinson v. Dunlap, 50 Me. 111. See Moore v. The State, 43 N. J. Law, 205; Maxwell v. Goetschius, 11 Vroom, 383; Davidson v. New Orleans, 96 U. S. 98. LECTURE XXXII. Judicial Legislation necessary and beneficial. — It may impair the Obligation of Contracts by laying down New Rules, but is not, where it does not involve the Interpretation of a Statute, a Law in the Sense of the Constitutional Prohibition. In considering whether a Law impairs the Obligation of a Contract, the Supreme Court of the United States will determine for itself whether the Contract is void or valid. — The Statutes of a State are what they are declared to be by its Courts, and the Interpretation cannot be changed injuriously to Intervening Contracts. A Law passed in the same Terms in two Different States, but differently interpreted by their Courts, is in effect two Different Laws, and will be so treated by the Supreme Court of the United States. A Purchase on the faith of an Erroneous Judgment that the Title is good may confer a Valid Title. - A Constitutional Change or Amendment impairing the Obligation of Contracts is invalid. WHAT is a law in the sense of the Constitutional prohibition? The question admits of an obvious reply where it arises under an enactment varying the pre-existing statutory or common law; but there are cases where it cannot readily be answered. A judgment construing or interpreting a grant or covenant, and determining that it does not confer the right claimed by the grantee or covenantee, does not ordinarily impair the obligation of the contract within the meaning of the Constitution of the United States, however widely it may vary from the opinion generally prevailing among jurists, or that previously expressed by the courts.1 The appropriate function of the tribunals is jus dicere, to declare the rule, and not to make it; and the law will be presumed to have been as the court held, although the contrary is apparent. Contracts imposing personal obligations or conferring rights of property are, unless some federal 1 Bank v. Burlingame, 5 Howard, 342; Knox v. Exchange Bank, 12 Wallace, 379; University v. The People, 99 U. S. 309. |