Pickering v. Pickering

The right to file several and separate replications, which the plaintiff in this case has assumed, is one that by long continued practice in this State, (imitated, according to the opinion in Chapman v. Sloan, 2 N. H. Rep. 464, from the English practice under the statute of 3 and 4 Anne,) depended upon the permission of the court, which was entirely within its discretion, however well settled the principles may have been upon which that power of the court would be exercised. The statute of 1847, ch. 307, has rendered the right independent of the court, and conferred it absolutely, in all cases. But as that statute was passed since the commencement of this action, its present application is questioned. Retrospective laws for the decision of civil causes being forbidden by the bill of rights, all laws, otherwise unobjectionable, are, and must be, consequently, so limited in their operation as not to be obnoxious to the spirit and principle of the prohibition. Its interpretation has been the subject of numerous decisions, and has become well defined. It applies not only to those laws which relate, immediately and primarily, to the rights of persons and property, but to those subsidiary laws, also, of which the object is to afford the means, and prescribe the mode of the enforcement of the former. And if, under either of these classes of laws, rights have become vested and perfect, to permit them to be affected by a change in the laws, is, so far, to give the altered or new law a retrospective action. Therefore it was held in Woart v. Winnick, 3 N. H. Rep. 473, that a repeal of the statute of limitations did not apply to an action then pending; and in Roby v. West, 4 N. H. Rep. 287, that a defendant cannot be deprived of a defence by a statute passed after the commencement of the suit. An opinion is however expressed in Bacon v. Callender, 6 Mass. Rep. 309, that if it was competent for the legislature of Massachusetts to pass a certain statute (of 1807, ch. 74, called the “limitation and settlement act,”) to affect actions founded upon certain claims then existing, a point which was not contested at the bar, its provisions might apply with equal authority to such actions then pending. It is probable that all the cases in which this doctrine has been held, that the provisions of a statute are applicable to suits pending at the time of its passage, so strongly discountenanced by the English cases, by Chief Justice Kent, in Dash v. Van Kleeck, 7 Johns. 488, and by Justice Story, in Society, &c. v. Wheeler, 2 Gall. 139, have proceeded upon such manifest intention of the statute, upon the distinction between ex post facto and other retrospective laws, adverted to by the dissenting judges in Dash v. Van Kleeck, and upon the ground that neither the constitution of the United States, nor of the respective States in which the decisions have been given, in terms forbade all retrospective laws. But whatever may have been the basis of that opinion, the language of the twenty-third section of our bill of rights is explicit, and the decisions upon it have been uniform. The question with us is whether any right, such as the law recognizes, has been acquired under the pre-existing law, which would be taken away by the succeeding one.

The principle of the twenty-third section is that when an act has been done in view of existing laws, the reasonable expectation of, and reliance upon their permanence, should not be disappointed; that as calculations for the future must be made from the present, it is but just that where an act has been done involving consequential benefit or injury, as the laws shall abide or change, that the actor be protected as far as practicable from the effect of the change; and the “ vested right ” arising from any act, which is preserved by law, is recognized upon this principle. Though rules of pleading are in their nature subsidiary and secondary, that is. though they relate merely to the manner in which questions arising under other laws shall be brought before courts and juries, yet they, as much as those others, are part of the public law. They bear the same relation to their subject matter, the actions and defences, the remedies and protection that the law affords, that the latter do to those ultimate interests they are intended to subserve, and it is equally important that they should be fixed and definite.

Applying these considerations to the present case: upon the commencement of this suit certain rules of pleading obtained, and it must be held that certain rights thereunder then arose as well to the defendant as to the plaintiff; as to them it then became necessary for the parties to conform their respective cases. If, as was held in Roby v. West, a statute passed pending a suit shall not deprive the defendant of a defence to which he would otherwise be entitled, by a parity of reasoning the plaintiff may not urge his claim,, or reply to a defence, in a manner that was not open to him when he commenced his action. The operation of the statute would in this case be retrospective, because it would-change the relation subsisting between the parties when the-defendant was brought into court, and if it be not literally a. rule for the decision of civil causes, it is entirely within the spirit of the objection.

More than one of these replications, standing alone, would be sufficient. The first is good, and tenders the issue correctly upon the execution of the bonds of submission; for-though there may have been previous conversations and parol agreements, those are all merged in the bonds.

The third replication cannot be sustained. Where there-are mutual remedies to compel the performance of the matters awarded, performance need not be pleaded. Gascoyne v. Edwards, 1 Y. & J. 19; Jessamin v. Haverhill and Franconia Iron Man'y 1 N. H. Rep. 68. The fourth replication is also bad. There is no allega- tion of any fraud, corruption, misbehavior or even mistake in the referees. It is alleged, generally, that the award was based upon false and corrupt testimony, procured and laid before the arbitrators. To try the issue presented by the replication would be to inquire whether the referees arrived at just conclusions upon the testimony. The question whether any portion of it was false, is involved in those passed upon and settled by the tribunal chosen by the parties, and to determine it now, would be to try the case over again. This cannot be done. Nothing is better settled than that an award made upon a full hearing of the parties, where no mistake or misconduct is imputed to the referees, is forever conclusive upon the parties, and the matter cannot be reexamined in any other tribunal. If there is an exception it must be on the ground of newly discovered evidence, which is not alleged in the present case, and the remedy, if any, must be by petition for a new trial. When the falsity of the evidence was known to the plaintiff is not alleged, or why it was not made known to the referees.

As the replications are pleaded, they are double, and must all fall together for that fault. The court can select no one of them. 1 Tidd (Am. Ed.) 612.