Cass County IL Archives Court.....Thompson, V Alexander 1849
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 May 21, 2008, 11:51 pm

Source: Reports Of Cases Illinois
Written: 1849

Richard D. Thompson, appellant, v. Newton Alexander, appellee.

Appeal from Cass.

1. Limitations — statute construed. The "act to amend the sixty-sixth chapter 
of the revised statutes, entitled 'limitations,'" approved February 10, 1849, 
will be so interpreted as to operate only on causes of action accruing after 
it took effect.(1)

2. Statutes — retrospective. The rule is inflexible that no statute will be so 
construed as to give it a retrospective operation, unless such an intention is 
manifested by clear and unequivocal expressions.(2)

This was an action in debt, brought in the Cass circuit court, by appellee 
against appellant, on a note dated May 11, 1837, to which action the defendant 
below pleaded that the cause of action set forth in the declaration accrued 
more than five years before the commencement of this suit, to wit, on the 11th 
day of May, a. d. 1838; to which plea plaintiff interposed a demurrer; to this 
there was a joinder. The court below sustained the demurrer, and the defendant 
not answering further, judgment was rendered for the plaintiff for his debt 
and damage's, $168 83. From this judgment the defendant prayed an appeal, and 
assigns for error the sustaining of the demurrer to appellant's plea of the 
statute of limitations. Joinder in error. The cause was decided by Woodson, 
judge, at October term, 1849.

H. E. Dummer, for appellant. D. A. Smith, for appellee.

Treat, C. J. This case depends entirely on the construction to be given to the 
act of the 10th of February, 1849, which reads as follows:

"Section 1. Be it enacted by the people of the state of Illinois, represented 
in the general assembly, That all actions of trespass, detinue, trover, and 
replevin; all actions founded on any promissory, note, bill of exchange, book 
account or simple contract; all actions founded on any promissory note, bond, 
judgment, contract, or indebtedness executed, rendered, entered into, or 
accrued beyond the limits of this state, and all actions on the case, shall be 
commenced within five years next after such recovery, or the cause of such 
action shall have accrued, and not after. All parts of acts inconsistent with 
the provisions of this act be, and the same are hereby repealed.

"Section 2. This act shall be subject to the same conditions as are provided 
in the twelfth section of the sixty-sixth chapter of the revised statutes, 
entitled 'Limitations.'"

By the provisions of the constitution, the act did not take effect until the 
13th of April, 1849.

As a general rule, a statute is to operate in futuiro only, and is not to be 
so construed as to effect past transactions. A retrospective effect will not 
be given it, unless it clearly appears that such was the intention of the 
legislature, especially where it tends to produce injustice or inconvenience. 
Such an intention must be manifested by clear and unequivocal expressions. If 
it is left doubtful what was the real design, the statute must be so construed 
as to have a prospective effect only. Prince v. U. States, 2 Gallison, 204; 
Whitman v. Hapgood, 10 Mass., 437; Bruce v. Schuyler, 4 Gilman, 221; Somerset 
v. Dighton, 12 Mass., 383; Hooker v. Hooker, 10 Smedes & Marshall, 599. 

Testing the act by these principles, it is clear that the legislature intended 
it should have a prospective effect only; and that its provisions should only 
apply to causes of action arising after it should go into operation. There is 
nothing on the face of the act which indicates a different intention. It must 
therefore be so interpreted, as to operate only on causes of action accruing 
after it took effect. This court, in the case of Tufts v. Rice, Breese, App., 
30, gave the statute of limitations of 1819 a similar construction.

But this is emphatically a statute that should be restricted in its operation 
to causes of action arising after its enactment; unless it manifestly appeared 
that the design of the legislature was otherwise. Prior to its passage, there 
was no limitation to actions on judgments recovered out of the state; and 
actions of debt could be brought on bills of exchange and promissory notes, at 
any time within sixteen years after the right of action accrued. This act 
limits the bringing of suits on such demands to five years, thus introducing 
serious aud important changes in the law of limitations, even if the act is to 
operate prospectively only. The evidence should be clear and conclusive, to 
induce the court to hold that the legislature intended to go still further, 
and make the act applicable to causes of action previously existing. Very 
great inconvenience, if not flagrant injustice, might result from such a 
construction. The act embraces all rights of action accruing on judgments 
rendered, or contracts made beyond the limits of the state; and many of such 
rights of action, if the statute is to retroact, might have been barred the 
moment it took effect. If a right of action accrued five years before the 
passage of the act, the creditor, although a citizen of another country, and 
ignorant of the residence of his debtor, would be compelled to sue within 
sixty days, in order to avoid the limitation. During that period of time, he 
might not have any actual notice of the change in the law; or if he chanced to 
obtain it, he might not be able to ascertain the residence of his debtor, and 
by commencing a suit, save his cause of action. His remedy might be utterly 
lost without fault or laches on his part. Laws liable to such consequences are 
repugnant to the principles of sound legislation, and inconsistent with a 
proper regard to the rights of creditors.

But, the legislature is subject to no such reproach. It is evident that no 
such construction was intended. If any doubt ever existed respecting the real 
object of the act, it has been fully removed. The same legislature, at its 
succeeding special session, declared that the act in question should not 
be "so construed as to limit or affect the right of action upon any matter of 
indebtedness, or cause of action, existing or accruing" before its enactment. 
See the 4th section of the act of November 5, 1849, entitled "an act to amend 
the several laws concerning limitations of actions." 

The judgment of the circuit court is affirmed, with costs.

Judgment affirmed.

------------------
Cited — Marsh v. Chesnut, 14 Ill., 223; Trustees of Schools v. Chamberlain, 14 
Ill., 495; Dunlap v. Buckingham, 16 Ill., 109; Conway v. Cable, 37 Ill., 82; 
Knight v. Begole, 56 Ill., 122; Hatcher v. Tol. W. & W. R. R. Co., 62 Ill., 
477; M'Haney v. Trustees etc., 68 Ill., 140; Tuller, in re, 79 Ill., 99.

(1) Followed—Trustees etc. v. Chamberlain, 14 Ill., 495.

(2) Dubitatur, whether the legislature has power to give to statutes a 
retrospective effect, Marsh v. Chesnut, 14 Ill., 223.
The doctrine applicable to all statutes is, that, generally, they shall be 
considered as prospective and not to prejudice or affect the past transactions 
of the citizen; not that the legislature can not make law with retrospective 
operation, in some cases, but, that it is not to be supposed they have so 
intended unless that intention has been manifested by most clear and 
unequivocal expressions, Tuller, in re, 79 Ill., 99; People v. Thatcher, 95 
Ill., 109; People v. Peacock, 98 Ill., 172; U. S. Mortg. Co. v. Gross, 93 
Ill., 483; therefore, as in the text of the opinion supra, courts will not 
give, to statutes, a retrospective operation, even when such could be done 
without violating the paramount law of the constitution, in the absence of a 
clear expression in favor of such operation, Garrett v. Wilson, 1 Scam., 335; 
Robinson v. Rowan, 2 Scam., 500; Bruce v. Schuyler, 4 Gilm., 221; Knight v. 
Begole, 56 Ill., 122; Hatcher v. Tol. W. & W. R'y Co., 62 Ill., 477; M'Haney 
v. Sch. Trust, 68 Ill., 140. The power of the legislature to enact 
retrospective statutes, where there is no inhibition of the constitution, 
exists when, by such enactment, there is no interference with vested rights, 
as where the statute is to validate an invalid contract or to ratify and 
confirm some act which might have been authorized in first instance, U. S. 
Mortg. Co. v. Gross, 93 Ill., 483; as to ratify and cure a defect in an 
illegal vote as to the support of paupers by townships, Fox v. Kendall, 97 
Ill., 72; and, where a railroad corporation mortgaged its franchise, without 
authority of its charter, the legislature might make the transfer valid, for 
in such case the people alone could successfully complain, wherefore the 
people, by their representatives, might waive the wrong doing and bar their 
own right to complain, Hatcher v. Tol. W. & W. R'y Co., 62 Ill., 477. Under 
this rule, the legislature can not make a void proceeding valid, M'Daniel v. 
Correll, 19 Ill., 226; Phoebe v. Jay, Breese, 207 (but, in respect of the will 
of the people expressed in a constitution, contra, see Phoebe v. Jay, Breese, 
207). But, while the legislature is powerless to divest individuals of vested 
rights, it may require that acts shall be performed in the future and declare 
that their omission shall subject the individual to forfeiture of such rights, 
Conway v. Cable, 37 Ill., 82; Deininger v. M'Connell, 41 Ill., 228; see Hunter 
v. Hatch, 45 Ill., 178; Parmelee v. Lawrence, 44 Ill., 405.

Instances under these rules are furnished in the following cases: Deininger v. 
M'Connel, 41 Ill., 228; statute declaring deeds not proved or acknowledged so 
as to entitle them to record, when spread on the record, shall be notice to 
subsequent purchasers, only applies to deeds subsequently executed; Knight v. 
Begole, 56 Ill., 122, a decree, in proceeding to enforce mechanic's lien, 
cutting off right of redemption, proper when entered, is not affected by a 
subsequent statute, giving a right of redemption, although the statute became 
in force before sale under the decree; Hatcher v. Toledo, W. & W. R'y Co., 62 
Ill., 477; the statute of 1867 in relation to the consolidation of 
incorporated companies, L., 1867, p. 80; Cothran's Stat., p. 341, 65, 
providing that consolidated companies shall be liable for the debts of each 
constituent company, applies only to corporations consolidated after the 
statute took effect; so, an act of 1861, February 21, declaring certain 
defenses shall not be made to tax deeds after the adoption of the statute, 
until the redemption money be paid, had no operation as to deeds on sales made 
prior to such adoption, Conway v. Cable, 37 Ill., 82; so, statute of 1861, 
February 22, ratifying the approval of the supervisors of Rock Island county 
of certain arrangements made by the collector with purchasers at tax sale, was 
held void, as being retrospective, inasmuch as where officers conducting a tax 
sale omit essential acts, rendering it invalid, the legislature is powerless 
to cure and render the sale valid, Conway v. Cable, 37 Ill., 82; but, it was 
within the power of the legislature to legalize and declare valid the act of a 
town in subscribing for railroad stock, Keithsburg v. Frick, 34 Ill., 405.
Where a retrospective statute operates harshly and the language is doubtful, 
the court will give to it prospective operation only, Hyman v. Bayne, 83 Ill., 
256.

Additional Comments:
Reports of Cases Argued and Determined in the Supreme Court of the State of 
Illinois, from November Term, 1849, to June Term, 1850, Both Inclusive. By 
Ebenezer Peck. Volume XI. Annotated by Henry Binmore, of the Chicago Bar. 
CHICAGO: CALLAGHAN & CO. 1886.

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