State ex rel. Isaac v. Jones

Cochran, J., delivered the opinion of this Court: This suit was brought on the 28th of October 1859, against the appellees, as sureties on a constable’s bond, executed on the 29th of May 1849, the appellant assigning for a breach of the condition, the neglect of the constable to collect and pay over the amount of a single bill, delivered to him for collection in March 1850. Judgment. was entered for the appellees, on what the appellant here contends was an erroneous overruling of his demurrer to their plea of limitations. The Act of 1853, chap. 132, prescribing the limitation pleaded, provides that all actions on constable’s bonds should thereafter be brought within five years from the date thereof, and not afterwards. This Act was passed on the 2nd of May 1853, with an express provision, contained in its third section, that it should go into effect on the 1st of January 1854.

The period of five years from the date of the bond in this case, did not expire until the 29th of May 1854, and it thus appears that the appellant had five months after this Act became effective, and almost thirteen ⁴³⁷ months after it was passed, within which to bring his action. As the law stood when the bond was executed, it would have continued actionable for the period of twelve years, or until the 29th of May 1861, and the office of the demurrer, therefore, was to present the single question, whether the Act of 1853, by abridging that period, so affected the appellant’s right of action, as to fall within the constitutional inhibition against laws impairing the obligation of contracts. This question has been fully discussed, and, as we think, finally determined. The leading cases on tills subject all recognize the distinction between the obligation of a contract and the remedy by which it may he enforced; and while they treat the latter as a mere creature of the law, at all times within the scope of the legislative regulation, they yet establish the rule, that the abrogation or suspension of a remedy, necessary to enforce the obligation of an existing contract, according to its spirit and true legal intent, is within the inhibition of the Constitution, and therefore void.

And the same rule obtains in regard to legislation which changes, or so qualifies a remedy as to impair the correlative interest or benefit proposed by, and resting alone in the performauce of the obligation. In Jackson vs. Lamphine, 3 Peters, 280 , the Court said, that, “ it is within the undoubted power of State Legislatures to pass