12 Ga. 437 | Ga. | 1853
By the Court.
delivering the opinion.
On both points, we are for affirming the judgment of the Circuit Court.
But suppose the three competent persons contemplated by the first section, refuse to act, and a single individual only is appointed under the second section, as was the case here, a contingency wffiich seems to have been overlooked in the 8th section, although expressly provided for in the second; and
It is conceded in the argument, that if this Act is constitutional, there is an end of the first objection. That it is so, there can be no reasonable doubt. Remedial Statutes are not inoperative, although of a retrospective nature, provided they do not impair contracts, and only go to confirm rights already existing, mid in furtherance of the remedy, by curing defects and adding to the means of enforcing existing obligations. Underwood vs. Lilly, 10 Serg. and Rawle, 151. Tate vs. Stoolyfoos, 16 Ibid, 35. Bleakney vs. F. & M. Bank, 17 Ibid, 64. Hepburn vs. Curts, 7 Watts, 300. Foster vs. Essex Bank, 16 Mass. Rep. 245. Locke vs. Dane, 9 Ibid, 360. Oriental Bank vs. Freese, 18 Maine R. 109. Townsend vs. Townsend, 1 Peck Tenn. Rep. 16, 17. Ibid, 266. State vs. Bermudes, 12 Lou. Rep. 355. Patin vs. Prejeon, 7 Louisiana Rep. 301. Butler vs. Palmer, 1 Hill, 325. Sturges vs. Crowninshield, 4 Wheaton, 200, 207. Mason vs. Hale, 12 Wheat. 378.
In Oriental Bank vs. Freese, 18 Maine, (6 Shepley,) 109, the
And, in The People vs. Livingston, 6 Wend. 526, the Superior Court of New York say: “As it is undoubtedly competentforthe Legislature to repeal absolutely, so it is competent, notwithstanding the repeal, to continue the old law in force, as to proceedings commenced under it ; to mbstiiute another law in place of the old one; and to direct, that all future proceedings in the progress of a cause, or the prosecution of a right, shall be governed by such new law.”
But it is assigned as error that the substitution was'made by scire facias, and not on motion. What right has the defendant to complain of this mere formal procedure ? The Act itself provides, that it may be done on motion, in order to expedite the proceeding. But this is for the benefit of the plaintiff; and while it enacts that it shall be done in this way, it does not inhibit it being done in any other way. The remedy in this respect is cumulative.
Judgment affirmed.