Morse v. Rice , 21 Me. 53 ( 1842 )

The opinion of the Court was by

Shei'ley J.

— The condition of this bond is, that one of the obligors shall within six months submit himself to examination and take the oath or affirmation provided in the seventh section of the act of 1836, or pay the debt, interest, costs and fees, or be delivered into the custody of the jailer. The Revised Statutes took effect before the time for taking the oath had expired. And the debtor within the six months took the oath therein prescribed ; but did not take the oath named in the condition of the bond. The oaths are not in all respects the same. It is contended, that there has not been a performance of the condition of the bond and that the plaintiffs are entitled to judgment. By the act repealing the statutes which had been revised, the act of ,1835, c. 195, by virtue of which this bond was taken, and the act of 1836, c. 245, prescribing the form of the oath, are repealed. The second section of the repealing act provides, that the acts repealed shall continue in force so far as they respect the trial and punishment of crimes and offences, and the recovery of penalties and forfeitures, which'have been incurred; and,for saving all rights of action, and all actions and causes of action, which shall have accrued by virtue of, or are founded on any of the repealed acts. It is obvious, that these provisions do not embrace the case now under consideration. The design of the revision was to substitute the revised enactments for the acts repealed, except where an explicit provision was made to the contrary. There is no indication of an intention, that the former oath should continue to be taken by debtors, who had given bonds under the acts repealed. The intention, that the revised code should, after a certain time, be the statute law • of the State on this subject, is too clearly indicated to authorize the application of the rule, that statutes should be regarded as having a prospective operation, unless a contrary intention is disclosed. , And the rule itself is rather applicable to new legislative provisions, than to a revision and re-enactment of former acts, often with little or no variation, but sometimes with new provisions. If the Revised Statutes are not to be regarded as operating in this respect prospectively, it is insisted, that they cannot vary the performance of the condition of this bond, because it would impair the obligation of the contract. A judgment creditor is permitted in certain cases to arrest the body of his debtor, who is to be released upon giving a bond in a prescribed form to the creditor. The design is to comp’el a disclosure of the debtor’s means of making payment. And to give him time to arrange his affairs and make payment, or to disclose them fully, he is authorized to substitute the bond for a detention of his person. It is made payable to the creditor, but might at the pleasure of the legislature be made payable to the officer. It arises out of a statute prescribing and regulating the mode of proceeding for the collection of debts, and is a part thereof. It is also a contract, but not of the character protected by that clause in the constitution. The creditor does not dictate its terms, and is not a voluntary party to it. The law provides it, and authorizes him to accept and use it as a means of coercing payment of his debt. And if that mode of coercion be taken from him, his debt and the contract, on which it is founded, remain unimpaired. It is a part of his remedy only, which is varied or destroyed. When the legislature requires a contract to be entered into collateral to'the original and as a part of the remedy to enforce it, the rights which it gives arise only out of the statute provision, and not out of any agreement of the parties, and are therefore liable to be modified by statute. To what extent, and in what manner the body and property of the debtor shall be acted upon to enforce payment.' are the legitimate subjects for legislative consideration, and of variation as the public good and the necessity of the case may require. The power of the legislature to vary the rights and duties of the parties to a bond of this description was considered and decided in the case of the Oriental Bank v. Freese, 18 Maine R. 109. The defendants having performed the condition of their bond in the manner authorized by law, cannot be considered as guilty of any omission of duty.

Nonsuit confirmed.