recovery of the penalty. This is on the ground that the court, in rendering a decision, can only apply the law which is then in force. And this rule applies even on appeal, though the judgment appealed from may have been rendered before the law was changed. There is, indeed, a case in New York which seems to be opposed to this view. In that case a tenant had incurred a forfeiture by removing property from the demised premises to avoid a distress for rent, and a judgment was recovered against him for the statutory penalty. He appealed, and, pending the appeal, the legislature abolished the remedy by distress, but without in express terms abolishing the penalty. Jewett, J., in passing upon the case in the supreme court, says: "At the instant the thing was done for which the penalty was given, it became a debt or duty, vested in the plaintiff. It is in the nature of a satisfaction to him, as well as a punishment of the offender. plaintiff having acquired a vested right to the penalty, the statute abolishing the right of distress, subsequently passed, which did not in terms repeal the section in question, in no way affects that right."

The

With great respect, it seems to us that the learned judge begs the question when he assumes that a vested right was acquired in the penalty. Certainly there is a great weight of judicial authority against this view. But he may have been right in attaching importance to the fact that the provision which gave the penalty was not expressly repealed.

7 Schooner Rachel v. United States, 6 Cranch, 329; Yeaton v. United States, 5 Cranch, 281; United States v. Passmore, Dall. 372; Norris v. Crocker, 13 How. 429; Confiscation Cases, 7 Wall. 484; United States v. Tyner, 11 Wall. 88; Satterlee v. Mathewson, 16 S. & R. 169, and 2 Pet. 580; Maynes v. Moore, 16 Ind. 116; Bacon v. Callendar, 6 Mass. 303; Cowgill v. Long, 15 Ill. 203; Butler v. Palmer, 1 Hill, 324; Commonwealth v. Leftwich, 5 Rand. 657; Commonwealth v. Welch, 2 Dana, 330; State v. Squires, 26 Iowa, 340; Mather v. Chapman, 6 Conn. 54; Engle v. Shurtz, 1 Mich. 150; People v. Herkimer Com. Pl., 4 Wend. 206; McMinn v. Bliss, 31 Cal. 122. 8 McCardle's Case, 7 Wall. 506; Bristol v. Supervisors, 20 Mich. 95; Ludlow v. Jackson, 3 Ohio, 553; State v. Norwood, 12 Md. 195.

9 Citing Company of Cutlers in Yorkshire v. Ruslin, Skinner, 363; Grosset v. Ogilvie, 5 Brown P. C. 527 ; College of Physicians v. Harrison, 9 B. & C. 52410 Palmer v. Conly, 4 Denio, 374.

True, it would become inoperative as to future cases when the remedy by distress was taken away, but there was nothing inconsistent in taking away that remedy and still leaving the penal provision applicable to the cases that would come within it; that is to say, to the cases that previously had occurred. On this ground the case may, perhaps, be harmonized with those decided in other courts.

2. Cases where Statutes are Repealed with Saving of Rights Accrued. But while it is entirely competent to take away statutory penalties after they have accrued, it is also competent, by the proper clause in the repealing statute, to save them. This is often done; the effect being to continue in force, for the purpose of recovering the penalty, the statute which gave it."

3. Cases where Laws are Repealed which Forbade Particular Contracts.-These cases present more difficulties than those already considered, and there has not often been occasion to pass directly upon the effect of a repeal where the repealing statute contained no express provision on the subject of the previous invalid contracts. It might be urged with some plausibility that if the contracts were such as the common law would have sanctioned, and which, therefore, would have been valid but for the statute, the repeal of the statute, thereby removing everything which constituted an impediment to their validity, must leave them subject to the rules of the common law, and, therefore, enforceable. An illustration may be taken from the prohibitory liquor laws, so called. These laws, in general, forbid the making of certain contracts which, at the common law, would have been perfectly legal and valid. Remove the statute, and what impediment remains to the enforcement of such a contract? All the elements of a recovery then exist-an agreement of minds and a consideration-and nothing is in the way, unless it be the statute which has now been repealed. Has the dead statute vitality for any such purpose? But, on the other hand, the condition of things at the time the statute

"The Irresistible, 7 Wheat. 551; Broughton v. Branch Bank, 17 Ala. 828; People v. Gill, 7 Cal. 356; Cochran v. Taylor, 13 Ohio N. S. 382.

was repealed cannot be ignored. If there was then no contract, how can the repeal of the statute bring a contract. into existence? The general rule unquestionably is, that a negotiation between parties must depend for its validity and construction upon the law in force at the time when, and the place where, it was executed. This is so even where the remedy is pursued in another jurisdiction; the tribunal which is called upon to enforce rights under it ascertains what those rights are by enquiring what force and effect was given to the contract by the law of the place at the time of contracting. This is elementary. If, therefore, that law utterly forbade any contract of the nature of that which is relied upon, it is not perceived how any change in the law, which simply removes an impediment to enter into a contract, could impart vitality to a void negotiation, any more than it could import new terms into a valid agreement. If there was no contract while the law was in force, there remains none after it was repealed. This seems plain.1

It is possible, however, that the terms of the statute which preclude a recovery may have something to do with the effect of the repeal. If the statute forbade any contracts, its repeal, as already stated, can create none. But if, on the other hand, the statute only permitted a certain defence to be made to a contract, there would at least be plausibility in an argument that, when the statute which gave the defence was taken away, the contract remained and would be enforceable. The distinction is a somewhat nice one, and it would not be safe to act upon it without satisfactory evidence in the statute itself that its purpose was not to make all contracts of the kind absolutely null and void, but rather to give a defence as a privilege. Such a privilege could only become available when suit was brought; and if before that time the law which gave it was taken away, the privilege would be gone. But a void contract must be treated as invalid whenever the facts which constitute its invalidity are brought to the attention of the court.

The question of the legislative right to make valid an agree12 See Milne v. Huber, 3 McLean, 212.

ment which, by the law under which it was made, was invalid, would seem to be now so conclusively determined as not any longer to be the subject of discussion. The right has been affirmed in a great variety of cases,, and the argument that, in validating the invalid agreement, the legislature is in effect making for the parties a contract where no contract existed before, has almost invariably been put aside as unsound. The legislature, it is said, is only furthering the apparent design and purpose of the parties when it removes the statutory impediment to the validity of their arrangements, and gives them legal effect. It can wrong no one to remove a legal bar to the accomplishment of that which he has attempted.

A leading case on this point was that in which the Supreme Court of Pennsylvania affirmed the right of the legislature to validate one of the Connecticut leases of land in that Commonwealth, which the courts had previously declared, as a result of state legislation on the subject, were void, and could not create the relation of landlord and tenant. The legislature subsequently, by declaratory act, affirmed the validity of such leases, and of the relation of landlord and tenant under them. This presented very squarely the question of legislative power, which is above suggested, and it was squarely met by the court in an able opinion, often since that time followed in that and other states.13 In this case the legislation was attacked as destructive of vested rights, and as violating the obligation of contracts. It certainly violated no vested rights, unless an inequitable defence could be held to be one, for a defence against a fair contract must always, so far as the party himself is concerned, be inequitable. Neither did it violate the obligation of contracts.

13 Satterlee v. Mathewson, 16 S. & R. 169. For other Pennsylvania cases affirming the same principle see Walton's Lessee v. Bailey, 1 Binn. 477; Haas v. Wentz, 4 S. & R. 361; Underwood v. Lilly, 10 S. & R. 101; Barnet v. Barnet, 15 S. & R. 72; Tate v. Stooltzfoos, 16 S. & R. 35; Bleakney v. Bank of Greencastle, 17 S. & R. 64; Menges v. Wertman, 1 Penn. St. 218; Journeay v. Gibson, 56 Penn. St. 57.

14 See Foster v. Essex Bank, 16 Mass. 245; Welch v. Wordsworth, 30 Conn. 149.

Its purpose, on the other hand, was to perfect the contract and do away with the difficulty in its enforcement.1 We cannot give the facts of other cases, many of which are equally strong and pointed; nor is it at all necessary when the principle is so firmly settled. Some further cases affirming it are given in the note.16

In all these cases it is to be understood that the statute not only removes the legal impediment which before existed to a lawful contract, but it expressly assumes to validate the contracts attempted before. The question, therefore, does not arise on a mere repealing statute, and, consequently, the cases do not conflict with what has above been said—that a repealing statute leaves previous invalid arrangements in the same state of invalidity in' which it found them. But this is not a necessary result; the legislature may retrospectively affirm that which would have been valid but for the statute repealed, provided that, in express terms, they declare their purpose to that effect. There are, indeed, certain limitations upon their power; it is generally conceded that they cannot retrospectively, by their affirmance of a contract, divest rights which have been acquired in reliance upon its invalidity; nor could they validate a contract obtained by fraud or duress, or from an insane person.18 These are very plain exceptions to the general power; they rest upon

15 Satterlee v. Mathewson, 2 Pet. 380. See Watson v. Mercer, 8 Pet. 88; Carpenter v. Pennsylvania, 17 How. 456.

16 Lewis v. McElvain, 16 Ohio, 347; Johnson v. Bentley, ibid. 97; Chestnut v. Shane's Lessee, 16 Ohio, 599; Trustees v. McCaughy, 2 Ohio N. S. 152; Goshen v. Stonington, 4 Conn. 209; Beach v. Walker, 6 Conn. 190; Norton v. Pettibone, 7 Conn. 319; Savings Bank v. Allen, 28 Conn. 97; Bass v. Columbus, 30 Geo. 845; Winchester v. Corina, 55 Me. 9; Andrews v. Russell, 7 Blackf. 474; Grimes v. Doe, 8 Blackf. 371; Maxey v. Wise, 25 Ind. 1; Boyce v. Sinclair, 3 Bush, 264; Payne v. Treadwell, 16 Cal. 220; Deutzel v. Waldie, 30 Cal. 138; Sticknoth's Estate, 7 Nev. 227; Harris v. Rutledge, 19 Iowa, 389; Gibson v. Hibbard, 13 Mich. 215; State v. Norwood, 12 Md. 195.

17 Greenough v. Greenough, 11 Penn. St. 489; Southard v. Railroad Co., 2 Dutch. 22; Brinton v. Seevers, 12 Iowa, 389; Sherwood v. Fleming, 25 Texas, 408; State v. Warren, 28 Md. 338.

18 White Mountains R. R. Co. v. White Mountains R. R. Co. of N. H., N. H. 50; Routsong v. Wolf, 35 Mo. 174.

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