This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
A statute which gives an additional remedy,1 as where a municipal corporation is allowed to enforce certain contracts by mandamus,2 or where forfeiture of the corporate charter is made a remedy for breach of a prior duty to keep a road in repair,3 or where a right to declare a forfeiture by judicial decree is given for failure to pay the interest on the purchase price of school lands sold by the state, in addition to the prior right to rescind for non-payment or to enforce a lien for the purchase price,4 or changes the penalty,5 or the landlord's remedy,6 in case a tenant wrongfully holds over after his term, or which gives a remedy more efficacious than the pre-existiug remedies,7 or which takes away one out of several remedies,8 or which changes a remedy from a right of self-redress to a suit at law,9 or which provides that a decree providing for an accounting, or for enjoining or interfering with the prosecution of the business of any life insurance company or association can be granted only on the application of the attorney-general, except in certain named cases,10 or which changes the method of summoning a jury,11 or commissioners,12 or which changes the method of serving process on defendant,13 or in serving notice of appeal,14 or which requires a claim against a city to be presented to the council for allowance; and in case of disallowance requires the claimant if dissatisfied with the order of the council to give written notice of appeal, and furnish bond for costs,15 or which requires certain defenses to be specially pleaded, such as coverture,16 or which destroys a preexisting right of set-off,17 or which gives an additional right of set-off,18 affects the remedy only and does not impair the obligation of pre-existing contracts.
17 Baltzer v. North Carolina, 161 U. S. 240 (affirming 104 X. C. 265; 10 S. E. 153); and see R. R. v. Alabama, 101 U. S. 832; R. R. v. Tennessee, 101 U. S. 337.
18 Western National Bank v. Reckless, 96 Fed. 70; Dexter v. Ed-mands, 89 Fed. 467.
1 Hill v. Ins. Co., 134 U. S. 515.
2 New Orleans, etc., R. R. v. Louisiana, 157 U. S. 219; affirming State v. New Orleans, etc., R. R., 42 La. Ann. 550; 7 So. 606.
3 Davis v. Road Co., 103 Ga. 491; 29 S. E. 475. (Even where no remedy was theretofore provided.)
4 Standifer v. Wilson, 93 Tex. 168
232; 54 S. W. 898; Fristoe v. Blum, 92 Tex. 76; 45 S. W. 988 (holding that in Berrendo Stock Co. v. Me-Carty, 85 Tex. 412; 21 S. W. 598, the court did not consider or pa---upon this statute).
5 Woodward v. Winehill. 14 Wash. 394; 44 Pac. 860.
6 Woods v. Soucy, 166 111. 407; 47 N. E. 67.
7 Daviea Henderson Lumber Co. v. Gottschalk, 81 Cal. 641; -22 Pac. 860; Webb v. Moore. 25 Ind. 4; Fonda v. Clark. 43 la. 300; Laps-ley v. Braslicars, 4 Litt. (Ky.) 47.
8 Imprisonment for debt may be abolished as to pre-existing debts.
A statute which permits an action against the personal representative of a deceased joint debtor before obtaining judgment against the surviving debtor, the prior law making the debt in legal effect joint and several, but providing that the surviving debtor must be sued first is valid.19 On the other hand, a stat Penniman's Case, 103 U. S. 714; Mason v. Haile, 12 Wheat. (U. S.) 370; Oriental Bank v. Freese, 18 Me. 109; 36 Am. Dec. 701. Mandamus may be taken away. Tennessee v. Sneed, 96 U. S. 69.
9 White v. Canal Co., 22 Colo. 191; 31 L. E. A. 828; 43 Pac. 1028.
10 Swan v. Life Association, 155 N. Y. 9; 49 N. E. 258.
11 People v. Teague, 106 N. C. 576; 19 Am. St. Rep. 547; 11 S. E. 665.
12 Williamsport, etc., Co. v. Startzman, 86 Md. 363; 39 L. R. A. 161; 38 Atl. 777.
13 Connecticut, etc., Ins. Co. v. Spratley, 99 Tenn. 322; 44 L. R. A. 442; 42 S. W. 145.
14 Oshkosh Waterworks Co. v. Oshkosh, 109 Wis. 208; 95 Am. St. Rep. 870; 85 N. W. 376.
15 Oshkosh Waterworks Co. v. Oshkosh, 187 U. S. 437; affirming Oshkosh Waterworks Co. v. Oshkosh, 109 Wis. 208; 95 Am. St. Rep. 870; 85 N. W. 376.
16 Howard v. Gibson (Ky.). 60 S. W. 491.
17 New Orleans v. Waterworks Co., 142 U. S. 79.
18 Amy v. Taxing District, 114 U. S. 388; Charlotte Bank v. Hart. fi7 N. C. 264.
19 Island Savings Bank v. Galvin, 20 R. I. 347; 39 Atl. 196, the court saying: " The change is simply in the time when the representatives ute which, under cover of a change of parties, changes a claim against one party into a number of separate claims against several is invalid.20
A statute which provides that after the dissolution of a corporation no action can be maintained against it, but that its assets are to be administered for the benefit of its creditors and stockholders is valid as applying to pre-existing debts.21
A statute giving a new trial as a matter of course may be repealed so as to take away such right from pre-existing causes of action, even if action has been begun, as long as the case has not been tried.22 On the other hand, after a case has been tried, the existing rights of the parties respectively to have a motion for a new trial granted or refused cannot be taken away by a subsequent statute.23 So after the lapse of the time limited for filing a bill of exceptions a statute authorizing the court to extend the time for filing such bill impairs the obligation of contracts as to such prior actions.24 A statute providing that the liability of a stockholder may be adjudicated in the same action as that brought against the corporation for the corporate debt, instead of by a subsequent action as formerly,25 or giving exclusive jurisdiction of actions on stock subscriptions to Common-Law courts, instead of to courts of equity as before,26 or a statute providing that assessments may be made upon the shares of stockholders in an insolvent corporation, and that an adjudication as to the amount of the debts and the amount due per share will be final, even as to stockholders not served personally,27 are each valid as none impairs the obligation of prior contracts. On the other hand, a statute which attempts to take away the right of each creditor to sue any stockholder may be sued and this is clearly a change of remedy only." for his individual benefit, and to substitute therefor an action to be brought by the receiver of an insolvent corporation against all the stockholders for the benefit of all the creditors, has been held invalid.28 A similar result is of course reached under a constitutional provision forbidding the legislature to pass any law depriving any person for any remedy for enforcing a contract which existed when the contract was made.29
20 Dyett v. Hyman, 129 N. Y. 351; 26 Am. St. Rep. 533; 29 N. E. 261.
21 Nelson v. Hubbard, 96 Ala. 238; 17 L. R. A. 375; 11 So. 428.
22 People v. District Court, 28 Colo. 161; 63 Pac. 321.
23 In re Handley's Estate, 15
Utah 212; 62 Am. St. Rep. 926; 49 Pac. 829.
24 Johnson v. Gebhauer, 159 Ind. 271; 64 N. E. 855.
25 Hill v. Ins. Co., 134 U. S. 515.
26 Antoni v. Greenhow, 107 U. S. 769: Shickell v. Improvement Co., 99 Va. 88; 37 S. E. 813.
27 Straw, etc., Mfc. Co. v. Shoe Co.. 80 Minn. 125; 83 N. W. 36.