UNITED STATES CIRCUIT COURT, WESTERN DISTRICT OF MISSOURI.

and awaiting the shipment of its counterpart, | paragraph of the agreed statement of facts constituted him a peddler under this statute, so recites that the property "was forwarded to as to deprive him of the protection which the Constitution gives to interstate commerce. At first impression it seems plausible that one offer to sell and deliver, and then one sale, followed by delivery, would constitute a dealer. As applied to the statute regulating the sale of liquors under the Federal Revenue Law, such acts would be sufficient to constitute the vendor a retail liquor dealer. But the rule of construction, under like state statutes, is quite different. The language of Edicott, J., in Com. v. Farnum, 114 Mass. 267-271, in construing a like provision, and discussing a like state of facts, may well be applied here: "He was an agent soliciting orders, and a carrier delivering machines ordered. He made no direct sales himself. He did not carry and ex-store-house, and were not completed by shippose goods for sale, within the mischief the statute is intended to prevent. The article he carried was a sample of that which he proposed the purchaser should buy of the company. The fact that he occasionally delivered the sample machine to a purchaser desirous of obtaining one immediately cannot so change the character of his business as to bring it within the statute, nor did the fact that he sold one attachment, and one tuck-marker, capable of being attached, make him liable; it distinctly appearing that it was not his practice to make such sales. The question is to be determined on the general character and scope of his business. If this does not bring him within the statute, he is not liable for single sales of particular articles, such sales being exceptional, and not in the course of his ordinary employment." See also Kansas v. Collins, 34 Kan. 434-437, and cases cited.

this State by said company, and delivered to defendant, as its agent, for sale on its account;" from which it is inferable that it was not being used merely as a sample, but was sent by the manufacturer to be sold, and, therefore, was sold in the usual course of defendant's trade. It is not necessary that all that is said in that opinion should receive assent or any part disapproved to warrant the conclusion reached on the facts at bar. In the case of Hynes v. Briggs, the facts were that the nonresident merchant and manufacturer, while employing agents as canvassers, shipped into the State of Arkansas large consignments of said goods, which were stored in a warehouse, and sales made by its solicitors were filled from this ments from without on orders sent in by the solicitor. Such goods were held to have become so far mingled with the common property of the situs as to become liable to state regulation and police, and subject to the license tax, if otherwise constitutional as a state enactment. Whether it will be maintained by the supreme court that a solicitor for a nonresident merchant or manufacturer, who limits his operations to merely taking orders on such nonresident, who supplies the goods from a provisional store-house established within the State where such orders are taken, would thereby become liable to a license fee imposed by the State, is yet an open question. It is sufficient for the purpose of the case at hand to say that Mr. Justice Bradley, in Robbins v. Shelby County Tax. Dist., supra, suggested that it could not be entertained that the nonresident merchant or manufacturer, in order to avail himself of the right of free interstate commerce guaranteed by the Constitution, should be given to the "silly and ruinous proceeding" of procuring a store-room, and shipping in his goods, before he could reasonably anticipate a demand for them; and, that, therefore, the means of effecting such sales through the agency of "drummers" taking orders in advance are permissible, and the right is not to be interfered with nor hampered by subjecting the solicitor to the imposition of a state license fee, or tax in other form. This view was sustained by the majority opinion, and reaffirmed in Asher v. Teras, 128 U. S. 129, 32 L. ed. 368. The latest holding must be the law for the gov ernment of this court, until reversed by the court of last resort.

Such seems to be the well-settled rule of construction of similar statutes. To hold that such sporadic, casual sale fixes upon the party the office of a dealer does not obtain outside of the practice under the Revenue Laws, which are designedly rigid, and controlled by the letter of the Act. The cases of State v. Emert, 11 L. R. A. 219, 103 Mo. 241, and Hynes v. Briggs, 41 Fed. Rep. 468, are not in conflict with the views above expressed, when properly distinguished. The agreed statement of facts on which the former case was submitted is not as clear as it ought to have been to present an exact point for decision. While it is true the facts stated indicate that the agent was soliciting orders for the nonresident manufacturer, and that in traveling around from house to house he did sell out of his wagon one sewing. It results that, the petitioners being restrained machine, it perhaps, in justice to the opinion of their liberty in contravention of the third of the court, ought not to be said that it held clause of section 8, art. 1, of the Federal Consuch single sale constituted the vendor a ped-stitution, which gives to Congress alone the dler under the state statute. The holding power to regulate commerce among the several would be singular in that aspect, as it would states, they are entitled to be discharged therebe in conflict with the current of state author- from. ities construing similar statutes. The third! 14 L. R. A.

It is accordingly so ordered.

GEORGIA SUPREME COURT.

George B. PRITCHARD, Admr., etc., of leged to have resulted from defendant's negliWilliam R. Pritchard, Deceased, Plff. in Err., gence. Reversed.

NOTE.-Effect of statutes to defeat or preserve pending civil actions.

filed his action in the Superior Court of ChatOn October 25, 1889, William R. Pritchard ham County against defendant to recover damages alleged to have been sustained by him through the negligence of the defendant in running its cars on March 14, 1889. At the time of filing this suit the common-law rule, actio personalis moritur cum persona, was in force in Georgia. Pending the said action and before any trial was had thereon, the Legislature passed an Act, which was approved on the 12th of November, 1889, providing that "no action for the recovery of damages for homicide or for injury to person or to property

shall abate by the death of either party; but such cause of action in the case of the death of the plaintiff shall, in the event there is no right of survivorship in any other person, survive to the personal representatives of the deceased plaintiff; and in case of the death of the defendant shall survive against said defendant's personal representatives."

| the creditor" applies to a levy in a case wherein judgment has been rendered but a motion for new | trial reserved with stay of execution for advice of all the judges of a higher court. Mather v. Chapman, 6 Conn. 54.

The only limit imposed by the Federal Constitution on the power of the states to pass retrospective laws is that they shall not be ex post facto and shall not impair the obligation of contracts. With A statute confirming entries of judgments made these limitations a state Legislature may pass ret- on the first instead of on the third day of a term of rospective laws unless limited by the state Consti- court may validate such a judgment from which a tution, although they devest vested rights. Balti-writ of error is then pending. Underwood v. Lilmore & S. R. Co. v. Nesbit, 51 U. S. 10 How. 395, 13 ly, 10 Serg. & R. 97. L. ed. 469; Satterlee v. Matthewson, 27 U. S. 2 Pet. 380, 7 L. ed. 458; Watson v. Mercer, 33 U. S. 8 Pet. 88, 8 L. ed. 876; Charles River Bridge v. Warren Bridge, 36 U. S. 11 Pet. 420, 9 L. ed. 773; Drehman v. Stifle, 75 U. S. 8 Wall. 595, 19 L. ed. 508: Randall v. Kreiger, 90 U. S. 23 Wall. 137, 23 L. ed. 124.

A statute giving a remedy does not apply to a pending suit unauthorized when brought unless the statute so provides. Wetzler v. Kelly, 83 Ala. 440.

A statute relating to an allowance to a tenant for improvements where he has no title applies to pending actions as well as those subsequently brought. Bacon v. Callender, 6 Mass. 303.

A statute giving an illegitimate child the right to inherit will not be construed to aid a pending action of ejectment based on such right of inheritance. McCool v. Smith, 66 U. S. 1 Black, 459, 17 L. ed. 259.

But a statute passed after the reversal of a judgment in ejectment for invalidity of plaintiff's title, by which the relation of landlord and tenant existing between him and the defendant is made lawful and his title therefore made valid on the second trial as against the defendant on the ground of estoppel, does not violate the Constitution of the United States as it merely gives effect to the parties' own contract. Satterlee v. Matthewson, supra.

A statute authorizing a suit by one firm against another having a common member may be made applicable to pending suits. Hepburn v. Curts, 7 Watts, 300, 32 Am. Dec. 760.

A statute allowing an action of covenant against an assignee of a lessee for years is not invalid as applied to a pending action. Taggart v. McGinn, 14 Pa. 155.

A statute confirming levies of executions on real estate except where the title attempted to be acquired thereby "has been finally decided against

Pending drainage proceedings may be made valid by a statute, even as to errors which go to the jurisdiction. Miller v. Graham, 17 Ohio St. 1.

Errors in proceeding to discontinue a road may be cured by a statute passed pending a certiorari to review the proceedings. People v. Ingham County Suprs. 20 Mich. 95.

The same is true of proceedings to lay out and improve a street. Newark v. State, 32 N. J. L. 453.

To defeat actions.

It must clearly appear that the Legislature so intended before a statute will be construed to bar a pending action. Chalker v. Ives, 55 Pa. 81.

After a judgment has been rendered declaring the invalidity of a tax a statute cannot heal the defects so as to overthrow the judgment. Moser v. White, 29 Mich. 59.

The right to an appeal or writ of error may be taken away by statute after the decision is rendered. Leavenworth Coal Co. v. Barber (Kan.) July 9, 1891.

Even after an appeal has been taken and a motion to dismiss denied after argument, the jurisdiction of the court may be taken away by statute. Ex parte McCardle, 74 U. S. 7 Wall. 506, 19 L. ed. 264.

An Act taking away the jurisdiction of the court will apply to pending appeals to that court. Baltimore & P. R. Co. v. Grant, 98 U. S. 398, 25 L. ed. 231.

A pending action by a creditor against a sheriff for the escape of an imprisoned debtor is not defeated by a statute allowing the sheriff in such cases to plead the prisoner's recapture or return before suit. Dash v. Van Kleeck, 7 Johns. 477, 5 Am. Dec. 291.

A statute allowing payment of a stamp duty upon an indenture of apprenticeship within a certain specified time in discharge of any penalty for

At the time of the passage of this Act W. | ed. 516; Merrill v. Sherburne, 1 N. H. 213, 8 R. Pritchard was in life; subsequently, on the Am. Dec. 52. 27th day of July of the next year, the said suit still pending, he died. After his death, George B. Pritchard was duly appointed and duly qualified as administrator upon his estate. On the 20th of January, 1891, George B. Pritchard, administrator, (the death of William R. having been duly suggested of record,) made application to the court to be made a party to said case in the stead of his intestate. This ap plication was denied by the court and upon motion of defendant's counsel the case was dismissed.

Messrs. Jackson & Whatley and A. C. Wright, for plaintiff in error:

The right to have the suit abate upon the death of the plaintiff is not a vested right.

The conditions necessary to give the Act application to this case having arisen after the Act was passed, is it not flying in the face of the plain meaning of the word to say that its operation is "retroactive?" The Act is purely preservative.

See Kring v. Missouri, 107 U. S. 248, 27 L.

prior neglect does not apply to a pending action for such a penalty, as that would defeat plaintiff's vested right and punish him with costs for pursuing a remedy which he had a right to when brought. Couch v. Jeffries, 4 Burr. 2460.

A statute providing that entry upon private premises within the limits of a jail-yard shall not be regarded as an escape, although changing the law, will defeat a pending action for an escape brought on the prisoner's bond. Patterson v. Philbrook, 9 Mass. 151.

An Act of Congress to legalize a bridge across a navigable river will defeat a pending suit to remove the bridge as a nuisance. Gray v. Chicago, I. & N. R. Co. (The Clinton Bridge) 77 U. S. 10 Wall. 454, 19 L. ed. 969.

The Legislature may cure defects in voting and charging a school-tax upon a suit to restrain its collection. Cowgill v. Long, 15 Ill. 202.

Effect of repeals.

If a law conferring jurisdiction is repealed without any reservation as to pending cases all such cases fall with the law. Gurnee v. Patrick County, 137 U. S. 141, 34 L. ed. 601; Butler v. Palmer, Hill, 324; Merchants Ins. Co. v. Ritchie, 72 U. S. 5 Wall. 541, 18 L. ed. 540; United States v. Boisdore, 49 U. S. 8 How. 113, 12 L. ed. 1009; McNulty v. Batty, 51 U. S. 10 How. 27, 13 L. ed. 333; Ex parte McCardle, 74 U. S. 7 Wall. 506, 19 L. ed. 264; Gates v. Osborne (The Assessor v. Osbornes) 76 U. S. 9 Wall. 567, 19 L. ed. 748; United States v. Tynen, 78 U. S. 11 Wall. 88, 20 L. ed. 153; Baltimore & P. R. Co. v. Grant, 98 U. S. 398, 25 L. ed. 231.

The Legislature may repeal a law imposing a penalty pending an action therefor and thus defeat the action. Oriental Bank v. Freeze, 18 Me. 109, 36 Am. Dec. 701; Mix v. Illinois Cent. R. Co. 3 West. Rep. 486, 116 Ill. 502; Pope v. Lewis, 4 Ala. 489: Norris v. Crocker, 51 U. S. 13 How. 429, 14 L. ed. 210; United States v. The Reform, 70 U. S. 3 Wall. 617, 18 L. ed. 105; Maryland v. Baltimore & O. R. Co. 44 U. S. 3 How. 534, 11 L. ed. 714.

Or pending an appeal from a judgment therefor, and thus defeat the judgment. Denver & R. G. R. Co. v. Crawford, 11 Colo. 598; Specker v. Louisville, 78 Ky. 287.

Matters of possible defense, which accrue under provisions of positive law which are arbitrary and technical, introduced for public convenience or from motives of policy, which do not affect the substance of the accusation or defense, and form no part of the res gestæ, are continually subject to the legislative will, unless in the meantime, by an actual application to the particular case, the legal condition of the accused has been actually changed. Kring v. Missouri, 107 U. S. 248, 27 L. ed. 516.

Remedial statutes are not inoperative, although of a retrospective nature.

Searcy v. Stubbs, 12 Ga. 439; Johnston v. Bradstreet Co. (Ga.) March 23, 1891.

Messrs. Lawton & Cunningham for defendant in error.

Lumpkin, J., delivered the opinion of the court:

The first proposition stated in the above head-note was settled by this court in the case of Johnson v. Bradstreet Co. (Ga.) 13 S. E.

But a statute abolishing distress for rent, even if construed to repeal provisions as to a penalty for aiding the tenant to remove his property from the premises to avoid payment of rent, will not affect the landlord's right to recover such a penalty in a case then pending on appeal as his right to it became vested the instant the wrongful act was done. Palmer v. Conly, 4 Denio, 374.

This case is apparently in conflict with those preceding which relate to penalties.

The repeal of an Act giving a forfeiture defeats a pending suit therefor. Governor v. Howard, 5 N. C. 465.

The expiration pending an appeal of a statute under which the forfeiture of a vessel accrued will prevent an affirmance of the sentence of condemnation. The Rachel, 10 U. S. 6 Cranch, 329, 3 L. ed. 239; Yeaton v. United States, 9 U. S. 5 Cranch, 281, 3 L. ed. 101.

Road proceedings fall with the repeal of a statute on which they are based. Re Road in Hattield Twp. 4 Yeates, 392; Menard County v. Kincaid, 71 Ill. 587.

So do insolvency proceedings. Miller's Case, 1 W. Bl. 451; Stoever v. Immell, 1 Watts, 258.

So do proceedings to sell an intestate's real estate for debts. Bank of Hamilton v. Dudley, 27 U. S. 2 Pet. 492, 7 L. ed. 496.

The repeal of a statute authorizing an auditor of public accounts to assess a tax for payment of bonds terminates all proceedings to compel him to make the assessment. Musgrove v. Vicksburg & N. R. Co. 50 Miss. 677.

But the repeal of an Act giving half pilotage fees to a pilot for speaking a vessel which declines his services does not defeat a pending action for such fees, as his right is vested under a transaction in the nature of a contract. Pacific Mail S. S. Co. v. Joliffe, 68 U. S. 2 Wall. 450, 17 L. ed. 805.

The mere repeal by an amendment of a statute of a provision giving an action for damages against a county for negligence in respect to a highway does not defeat a pending action, unless there is an evident intent of the Legislature to do so; and it seems that an attempt to give it such effect would violate a constitutional provision for a "remedy by the course of law for injury." East

Or after judgment and before execution. Lewis man v. Clackamas County, 32 Fed. Rep. 24. v. Foster, 1 N. H. 61.

B. A. R.

Rep. 250 (decided at the present term). In that case, however, the main question was whether or not the above-mentioned section of the Code applied to actions for libel, and no question was raised in the argument as to the applicability of the amending Act to pending suits, or its constitutionality as to them, if held applicable. This court, in the case just mentioned, considered the first of these questions, and decided that the Act did apply to actions pending at the time of its passage, but did not discuss it in extenso in the opinion. The constitutional question was not considered or decided in We will now examine both of

that case. them.

"

ceptions taken. While these proceedings were pending, the Legislature passed an Act providing in effect that an action brought by one firm against another should not abate by reason of one individual being a member of both firms, and it was held that this Act applied to the case then pending. A married woman sued alone for personal injuries to herself, when she had no right to bring such action without being joined therein by her husband. While her case was pending, the Legislature of Wisconsin passed an Act authorizing married women to bring such suits alone, and it was held that this Act applied to her pending suit, and made it good, even though it must have been abated if a motion to that effect had been made before the passage of the Act. Mc Limans v. Lancas ter, 63 Wis. 596. This Act was also distinctly held not to be unconstitutional, although retroactive as to the case pending, because it affected only the remedy. In Weldon v. Winslow, L. R. 13 Q. B. Div. 784, it was held that a married woman might, by virtue of the Married Woman's Property Act of 1882, sue alone for a tort committed before the Act came into operation, the law before the passage of that Act being that she could not sue without joining her husband with her in the action.

As stated in the case above cited, the language of the Act seems sufficiently broad and comprehensive to include pending actions. The law, as amended, reads: "Nor shall any action of tort for the recovery," etc., "abate by the death of either party." The words "any action" may as well mean any action now in existence as any action hereafter commenced, and it is not straining to give them this interpretation. In Bailey v. State, 20 Ga. 742, very similar reasoning is used. The Legislature had passed an Act declaring "who are qualified to serve as jurors in criminal cases," and its first section enacted that certain described per- Being satisfied that our Act of 1889, now sons shall be "liable to serve as jurors upon the under consideration, was intended to, and does, trial of all criminal cases.' The second sec-apply to pending actions, we will now inquire tion began: "When any person stands indicted." etc., Judge Benning said: "Criminal cases' is an expression that includes criminal cases of every sort." 'All criminal cases' includes criminal cases of every kind." "Any person' is a universal term." The Act in question was accordingly held applicable to cases happening before its passage. A Vermont Act, providing that in case of the removal of sheriff or high bailiff from the State an action of scire facias may be brought directly upon the recognizance of such officer, was held to apply to all causes of action, whether existing at the time it took effect or accruing thereafter, although the Act contained no provision expressly applying it to pending actions. Hine v. Pomeroy, 39 Vt. 211. In Kimbray v. Draper, L. R. 3 Q. B. 160, it was held that a statute requiring plaintiffs to give security for costs in certain cases applied to such cases then pending (citing Wright v. Hale, 6 Hurlst. & N. 227), in which it was held that when the plaintiff in any action recovers less than five pounds, he shall not be entitled to any costs if the judge certifies to deprive him of them, and the judge may so certify in an action commenced before the passage of the Act. In Hepburn v. Curts, 7 Watts, 300, 32 Am. Dec. 760, it was held that the Legislature may pass laws affecting "suits pending, and give to a party a remedy which he did not pre-cuted before the passage of the Act. In the viously possess, or modify an existing remedy, or remove an impediment in the way of recov ering redress by legal proceedings." An action of assumpsit was proceeding in the name of a firm, which included among its members one Samuel Hepburn, against another firm of which the same man was also a member. Defendants insisted that the suit could not be maintained, because the same person was among both the plaintiffs and the defendants. The objection was sustained, and a bill of ex

into its constitutionality. It will be noticed that some of the following authorities are also applicable to the question just disposed of. Section 6 of the Code provides that "laws looking only to the remedy or mode of trial, may apply to contracts, rights, and offenses entered into, or accrued or committed prior to their passage." The Constitution of 1865 forbade the passage of "retroactive laws, injuriously affecting any right of the citizen." No provision against retroactive legislation appears in the Constitution of 1868. That of 1877 forbids the passage of a "retroactive law." Construing together the above constitutional provisions in connection with the section of the Code cited, we take it that they all amount to substantially the same thing, and mean that retroactive laws, which do not injuriously affect any right of the citizen, that is to say, laws curing defects in the remedy, or confirming rights already existing, or adding to the means of securing and enforcing the same, may be passed. In Boston v. Cummins, 16 Ga. 102, it was held that "retrospective laws often operate for the benefit of society, and to repudiate them altogether would be to obliterate a large portion of the statute law of the State:" and accordingly it was ruled that a Registry Act, requiring deeds to be recorded within a limited time, applied to deeds exe

same volume, in Knight v. Lasseter, 151, it was held that an Act operating only on the remedy, though retrospective, was not unconstitutional. The Legislature of Mississippi passed an Act authorizing a court of chancery to refuse confirmation of a sale, provided the party objecting to the confirmation would make a certain bond, and it was held that the provisions of this Act applied to a sale made under a mortgage executed prior to the passage of the Act, and that as the Act affected the remedy only