The opinion of the Court was drawn up by
Shepley J.
The plaintiffs insist, that the act of 1839, c. 366, ought not to receive such a construction as to affect their rights in this suit. In Hastings v. Lane, 15 Maine R. 134, it was stated to be a settled rule of construction, that a statute should not have a retrospective operation, unless the intention to have it so operate is clearly expressed. In the act of 1839, such intention is clearly expressed, and it must operate upon the claim asserted by the plaintiffs, unless there be some constitutional objection to it. The counsel for the plaintiffs contend, that the legislature cannot rightfully pass a law, which operates retrospectively, and that such a law is inoperative. It has been decided, that the clause in the constitution of the United States, which provides, that no State shall pass any ex post facto law, or law impairing the obligation of contracts, does not prevent a State from passing retrospective laws, or laws operating upon vested rights, although a contrary opinion has been at different times intimated by some of the Judges. Satterlee v. Mathewson, 1 Peters, 413.
Our constitution carefully guards the right of private property, and provides, that it shall not be taken from any one, unless the public exigencies require it. This does not, however, prohibit the legislature from passing such laws as act retrospectively, not on the right of property or obligation of the contract, but only upon the remedy which the laws afford to protect or enforce them. The legislature must necessarily possess the power to determine, by law, in what manner the person pr property of a debtor shall be subjected to tbe demands of a creditor; and of making alterations in such laws, as a change of circumstances, or the public good, may require. And in doing this, pne may be deprived of a right which he has by existing laws to arrest the body, pr to attach, or seize a certain description of property, without infringing any con-, stitutional provisiqn. When a person, by the existing laws, be-» cpmes entitled tp recover a judgment, or to have certain real or personal estate applied to pay his debt, he is apt to regard the privilege, which the law affords him, as a vested right, not considering that it has its foundation only in the remedy, which may be changed, and the privilege thereby destroyed. It was decided in Potter v. Sturdivant, 4 Greenl. 154, that the legislature might mitigate the severity of a penalty, and award to the party injured, as much as he deserved, in equity and good conscience, to receive. And in the People v. Livingston, 6 Wend. 526, that the legislature possessed the power tp take away by statute, what was given by statute, except vested rights. And when a party, by the statute provisions, becomes entitled to recover a judgment in the nature of a penalty, for a sum greater than that which is justly due to him, the right to the amount, which may be so recovered, does not become vested till after judgment.
In Ogden v. Saunders, 12 Wheat. 262, Mr. Justice Washington dans states the result of his examination. “It is thus most apparent, that whichever way we turn, whether to laws affecting the validity, construction, or discharges of contracts; or to the evidence or remedy to be employed in enforcing them, we are met by the overruling apd admitted distinction between those which operate retrospectively and those which operate prospectively. In all of them, the law is pronounced to be void in the first class of cases, and not so in the second.” And Marshall C. J,, in the same case, 349, says, “ in prescribing the evidence, which shall be received in its courts, and the effect of that evidence, the State exercises its acknowledged powers. It is likewise in the exercise of its legitimate powers, when it is regulating the remedy and mode of proceeding in its courts.”
The bond in suit was taken to secure to the plaintiff;, the benefit of that part of the remedy for the recovery of a debt, which the laws afforded them by an arrest of the body of their debtor. And it was competent for the legislature to refuse any such remedy, or to impart it under such restrictions and modifications as it thought proper, and to change them at pleasure. By the act of 1839, the legislature does not impair the obligation of the contract, or deprive the plaintiffs of any vested right. It in effect provides, that a different description of evidence shall be received, as proof that the obligors have fulfilled that part of the condition of their bond, which required them to give notice of an intention to take the oath, not making it effectual, however, to bar the obligees from the recovery of such damages as they had actually suffered. The facts agreed do not prove, that the plaintiffs have sustained any damages ; and by the agreement, a nonsuit is to be entered.