January, 1842. CHITTENDEN, US in supplying the defect. If so, we might soon come to supply all supposed omissions in contracts, which would be to enforce contracts according to our views of what they should have been, rather than of what they are. Lowry v. Keyes. Judgment affirmed. HEMAN LOWRY V. ELNATHAN KEYES. The statute of 1832, in regard to the limitation of actions, providing that "if any person shall go from this state before the cause of action shall be barred," the time of such absence shall not be reckoned in determining the time within which such cause of action shall be barred, was not intended to operate upon causes of action, which were then clearly barred by the operation of the previous statutes of limitation. THIS was an action of book account, brought to recover for the following items of charge, viz: 1814, February, Serving writ, Farral v. Young, $0 29 83 10,00 8,00 7,00 48 77 95 28,32 37,38 $65,70 1823, To cash paid, 28,06 Judgment to account was rendered by the county court and the case referred to an auditor, who reported that he found the first eight items of the plaintiff's account truly charged and justly due and he allowed the same with interest, subject to the opinion of the court on the facts hereafter stated. With respect to the ninth item, the auditor found that January, 1842. Lowry v. Keyes. about the year 1819, the plaintiff, as sheriff, served a writ on CHITTENDEN, the defendant in favor of one Clough;-that the defendant, being desired to procure bail, replied that he would take care of the suit and that the plaintiff should not suffer, and that the plaintiff returned the writ without bail; that Clough afterwards recovered a judgment against the defendant, who had in the mean time left the state, and the defendant not being found on the execution, Clough sued plaintiff, as sheriff, for the escape of defendant and recovered the amount charged, which plaintiff paid in 1823. This was all the evidence on this point, and the auditor, considering it insufficient, disallowed the charge. The defendant insisted on the statute of limitations as to the whole account, but as it appeared that the defendant left the state in the year 1819, before any part of the amount was barred by the statute, and had ever after remained absent up to the time of the service of the writ, having no known property within the state, subject to legal process, the auditor held the defence to be insufficient, and allowed the first eight items as above stated, amounting to the above sum of $65,70, which he reported as the true balance due to the plaintiff. The acceptance of the auditor's report was objected to by both parties, but it was accepted by the county court and judgment rendered thereon for the plaintiff. To which judgment both plaintiff and defendant excepted. C. Adams, for defendant. By the act of 1797, plaintiff's claim was barred. It appears by the report, that the cause of action accrued long before the defendant left the state, and it is well settled that when once the statute begins to run it continues to run notwithstanding the subsequent absence. Peck v. Randall, 1 Johns. 176. Beckford v. Wade, 17 Vesey, 93. Smith v. Clark, 1 Wilson, 134. 4 Bac. Ab. 480. Angell on Lim. 146, 7, 8, 9. By a fair construction of the act of 1832, it applies only to causes of action accruing thereafter. act is plain and obviously looks to the future. "If any person shall go from this state before the cause of action shall be barred." Shall go and shall hereafter go, are of the same import. It is more explicit than the act in the state of The language of the CHITTENDEN, New York, which was adjudged to the prospective. Dash v. Van Kleek, 7 Johns. 477. January, 1842. Lowry 0. Keyes. It is a first principle that all laws act prospectively. 1 Bl. Com. 46. 6 Bac. Ab. 370. Even when words apparently bear upon previous contracts, courts will not put such a construction upon them, but will confine their effect to subsequent causes. in the above suit of Dash v. Van Kleek. This was the case The construction put upon the statute of frauds is in point. Retrospective laws are not to be favored by the court. They are neither consistent with sound policy, safe for the people, nor just in themselves. Dash v. Van Kleek, 7 Johns. 477. Calder v. Bull, 1 U. S. Cond. 176, 181. Ward v. Barnard, 1 Aikens, 121. 1 Kent's Com. 455. Angell on Lim. 30, 31, 32. There are but three modes in which the repeal of the act of 1832 can be made to operate; 1st, as a repeal, pro tanto, of the act of 1797; 2d, as a legislative construction of that act, or, 3d. as the introduction of a new rule. It is not a repeal of the act of 1797, nor of any part of it." That act is left in full force and operates as it did before upon every subject of it. It is not a legislative construction of that act. The language of the act of '97 is clear and explicit, and no doubt can be entertained of its construction. But a construction of laws is a judicial act for the exercise of which the legislature is, by the constitution, incompetent. So long, then, as the act of 1797 remains in force, the proper construction of it rests wholly with this court. Dash v. Van Kleek, 7 Johns. 477. Ogden v. Blackledge, 2 Cranch, 272. The act of 1832 enacts a new law, introduces a new rule. It provides that absence from the state shall not be counted as part of the six years. It does not, in terms, nor by its effect, repeal the old act, nor attempt to put a construction up on it, but simply declares a new mode of computing the CHITTENDEN, six years. If we are correct in considering the act of 1832 as the introduction of a new rule, it is immaterial whether it acts mainly on the remedy, or affects the contract, for in either case it cannot affects rights acquired before. It is not necessary to moot the point, whether the repeal of the act of '97 can affect the rights of parties perfected before the repeal, for the simple reason that the statute is not repealed. But we contend the repeal of a statute can never destroy rights already perfected. A repeal may affect accruing rights, but rights acquired under existing laws cannot be destroyed even by the omnipotence of a legislature. The question then is whether any rights can be gained undər a statute of limitations. An act changing the time of limitation from six years to four would not bar claims upon contracts of more than four years standing. The creditor would be protected on the ground that, at the time of the repeal, he had a legal right to his debt, and no legislature can, by law, take away a debt from one and give it to another. So, on the same principle, the debtor has a right to his defence and the legislature cannot, by taking away his defence, create a debt against him and compel him to pay to another that which by existing laws he does not owe. Angell on Lim. 31. Prescription is an evidence of title, and it matters not whether it be a title to a claim, or a title to a defence. Angell on Lim. 67, 8, 9. 17 Ves. 88. That a title is acquired to land by possession is the doctrine of every day. The same principle extends to all personal property and indeed to every thing which may be possessed. Six years possession of a horse would be plenary evidence of a right in the possessor, and this right must be the same whether made by the plaintiffs to maintain his suit for the horse, or by the defendant in his defence against such claim. It must be so unless there be a distinction between a right to a thing and a right to a defence against a claim made for the thing, but the distinction is wholly imaginary. It is a distinction without a difference. In trover or assumpsit for ahorse, the defence of the statute is on the ground that the defendant, by his possession, has acquired the evidence of a January, 1842. Lowry v. Keyes. CHITTENDEN, right to the horse, or, which is the same thing, a right to that January, 1842. particular defence, and hence it is necessary to plead it. Lowry v. Keyes. If the repeal of the statute could take away a defence which had become perfected by law, it would affect suits pending at the time of the repeal equally with suits commenced after, but in the suit of Woart v. Winnick, 3 N. H. 473, it was adjudged that the repeal could not affect suits then pending, and the cases of Dash v. Van Kleek, Ogden v. Blackledge, and Call v. Hagger, are to the same point. The statute of limitations should be construed favorably for the defendant. It has been appropriately termed a statute of repose. Angell on Lim. 26, 234, 248, 249. A' Court v. Cross, 3 Bing. 329. Bell v. Morrison, 1 Peters, 351. Hyde & Peck, for plaintiff. Statutes of limitation relate to the remedy and not to the right. They bar the remedy but do not extinguish the right. Story's Confl. of Laws, 481,490. Williams v. Jones, 13 East, 439. A debt may be barred by the statute of limitations of the place where the debt was contracted and where the parties resided the full period of limitation, and yet may be enforced in another jurisdiction. This shows that the statute does not extinguish the right, for whatever is a discharge of the debt, by the law of the domicil of the parties, is a discharge everywhere. Limitation of actions is governed solely by the lex fori, and hence it affects only the remedy. The same principle applies to the several states of the union. Decouche v. Savatier, 3 Johns. C. R. 190; 6 Wend. R. 475; Dunning v. Chamberlin, 6 Vt. R. 127; Ruggles v. Keeler, 3 Johns. R. 263; Pearsall v. Dwight, 2 Mass. 84; Dupleix v. De Roven, 2 Vern. 540; Williams v. Jones, 13 East. 439; Nash v. Tupper, 1 Caine's R. 102; Ryan v. Crowningshield, 17 Mass. 55; Medbury v. Hopkins, 3 Conn. R. 472; Andrews v. Herriot, 4 Cowen's R. 508, 530, 538, n. 10. Hunt v. Fay, 7 Vt. R. 170, turned on the distinction between a law of discharge and a law of limitation. One remedy may be barred by the statute of limitations and yet another remedy may be had for the same right. Lamb v. Clarke, 5 Pick. 193. A debt may be barred and |