The opinion of the court was delivered by
Redfield, J.
We do not perceive any sufficient reason to doubt the correctness of the decision of the county court in relation to the charge for money paid. For whether the auditor disallowed it, on the ground that the evidence was ££ insufficient,” in that it did not gain credit with him, or that it did not show "such a payment of money as could be properly charged on book, it involving a question of special indemnity and consequential damage, the decision of the auditor would, in the first case, be final and not subject to *74revision by the court; and, in the latter, it would be founded on such obvious principles of sound law, as could leave no ground of doubt of its correctness.
We think the decision of the county court, (and of the auditor,) in allowing the remainder of the account, is erroneous. That account, it is conceded, had long been barred by the statute of limitation, previous to the passing of the act of 1832. It is contended, that that act had such a retrospective operation as to remove the bar. Now conceding, for the argument’s sake, (and we are not prepared to do it upon any other ground at present,) that the legislature may lawfully repeal a statute of limitations, so as to revive extinct causes of action, it is obvious, that, upon principles of expendiency merely, this would be one of the very last limits of power, to which they would resort. It is, therefore, not one which is to be inferred from any dubious construction. Such an intention should be unequivocally expressed, before courts would feel called upon to inquire into its propriety and validity. It appears obvious to this court, from the terms made use of in the act of 1832, that it was never intended to have any retrospective operation — at most, not to the extent now claimed. The most that could be contended for is, that, in cases, where the debt was not barred, and the debtor was at that time without the state, and the time limited by the statute was in progresss of running, that it should be arrested until the return of the debtor; and of this we express no opinion.
Judgment reversed and judgment for defendant.
Bennett, J.
Dissenting. — The law of limitation is no part of the contract, but relates to the remedy, and the lex fori governs, and of course the inquiry must be, what law is in force at the time the remedy is sought ? It is no objection to a statute of limitation, that it is retrospective in its operation, or in its provisions. The distinction is well taken between those laws which affect the right, and those which simply relate to the remedy ; and the general rule seems to be, that when a statute of limitation is passed or altered, it operates upon antecedent, as well as subsequent causes of action, unless by its terms it is restrained to the latter. The common law courts have decided that the statutes of limita*75tion, having begun to run, continue to run, notwithstanding the debtor may have subsequently gone beyond the reach of process. The result has been, that the creditor has been frequently barred of his claim, when not chargeable with negligence. The same course of decisions has obtained under the act of 1797, in this state. To obviate the mischiefs of such a course of decisions, the act of 1832 was passed. This act provides, that if any person, against whom there is, or may be, any cause of action of a personal or transitory nature, shall go from this state before such cause of action shall be barred by the statute of limitations, and shall not have known property, &c., the statute of limitations .shall not run against such cause of action during the absence of such person from this state. ■ The expression in the statute “ against whom there is, or may be any cause of action, &c.,” shows that the legislature intended to subject to its operation antecedent debts ; and I think, the act of 1832 was designed not only as a rule of construction, but as a substitute for the provisions in the 10th section of the act of 1797, relative to persons beyond seas, without any of the United States. The words, “ shall go from this state,” must be taken only as equivalent to the words, shall be out of the state. If not so, the statute would not embrace foreigners who could not be said, literally, to go from the state. So the expression in the English statute, and those of some of the states which use similar expressions, “ return to,” have been held to include foreigners who have never been in the state. Strithoost v. Graeme, 3 Wilson, 145. Hall v. Littell, 14 Mass. 203" court="Mass." date_filed="1817-06-15" href="https://app.midpage.ai/document/hall-v-little-6404588?utm_source=webapp" opinion_id="6404588">14 Mass. 203. Ruggles v. Keeler, 3 Johns. 263" court="N.Y. Sup. Ct." date_filed="1808-08-15" href="https://app.midpage.ai/document/ruggles-v-keeler-5472262?utm_source=webapp" opinion_id="5472262">3 John. 263.
Indeed in settlement cases, where the courts have been disposed to be strict in their construction, we have held, that the expressions “ coming and residing within this state,” in the act of 1797, are satisfied with an actual residence of a person who was an inhabitant of the state prior to and at the passage of the act. Burlington v. Calais, 1 Vt. 385" court="Vt." date_filed="1829-01-15" href="https://app.midpage.ai/document/town-of-burlington-v-town-of-calais-6571078?utm_source=webapp" opinion_id="6571078">1 Vt. 385. Starksboro’ v. Hinesburgh, 13 Vt. 222.
The defendant, in this case, left the state before the action was barred, and his case is within the mischief of the old law, and, as I think, comes within the letter and spirit of the act of 1832. To confine the operation of the statute ‡0 cases where the debtor left the state after the passage of the *76act, would be to leave the case of foreigners, who had never been within the state, without provision, even though their debt may have been contracted since the act was passed. This statute is remedial, and should be liberally construed, so as to be co-extensive with the mischief; and, as I conceive, all cases, where the debtor has been without the state, before the demand is barred, come within its provisions. It is said, however, that in this case the demand was barred before the passage of the act of 1832; and that, in such case, this act should not remove the bar, or, in other words, the case does not come within the act. I have no doubt it is competent for the legislature to repeal or annul limitation acts at pleasure. They do not impair the obligation of the contract, and to repeal them is not to abridge the remedy, but to confirm an existing right by removing a statutory bar, which was supposed to be founded in policy, and established as a punishment for the negligence of the creditor. Ex post facto laws, within the meaning of theU. S. constitution, include only penal statutes ; and, to me, it seems absurd to hold that the debtor has a vesled right in a statutory law, founded upon no act of his, so as to render, for this cause, a statute, retrospective in its operation, objectionable. The limitation statutes, so peculiarly relate to the remedy furnished by courts, that a foreign statute, though it may have closed upon the demand, before the removal of the party to the new jurisdiction, yet will not avail him there. The defendant, to succeed in his defence, must make out a statute-bar, at the time, and in the forum where the remedy is sought. And it is not, I apprehend, sufficient that the demand has once been barred. As the defendant’s case, in my opinion, comes within the reason and the spirit of the act of 1832, he has failed in his defence. And indeed this is not a hard case for him. He left the state soon after the right of action accrued ; no pretence that he had been back till the time he was arrested; no pretence that the demand had been paid ; and the defence is put purely upon the statute. Under such circumstances, I am disposed to hold that it is incumbent upon the defendant to make out a clear defence, before he shall bar the plaintiff’s action; and I should affirm the decision of the county court, accepting the report of the auditor.