ELLIOTT AND PERKINS v. MAYFIELD AND WIFE, 4 Ala. 417

ORMOND, J. The counsel for the plaintiff in error, maintain that the bond, which is the foundation of this proceeding, was executed by the plaintiffs in error, with two other persons as joint sureties of both the executors of John Spencer, and that -, the execution should have issued agaiust all the sureties and not against the plaintiffs in error only. The language of the bond is, “ Know all men by these presents, that we, Edward B. Elliott and Thompson Windham, executors of John Spencer, Hardin Perkins and Enoch Elliott, as securities for Edward B.

Elliott, and William Glover and John Cummings as securities for Thompson Windham, are held and firmly bound, &c. We think it very clear that the persons who executed this bond as sureties, did not intend to bind themselves jointly for both executors, but severally for each, as is explicitly stated.

The language employed is plain, clear and unambiguous, leaving no room for doubt as to what the intention of the parties was, and as it is the duty of Courts to give effect to the contract as it was understood by the parties to it, this instrument must have the same effect as if separate bonds had been executed, by each of the executors and their several sureties.

It would, to be sure, have been more formal if separate bonds had been executed, but we do not think the intention to sever the liability of the sureties, and to limit it to the acts of a particular individual would have been more certainly indicated by that course than by the mode adopted, to which we know of no legal objection.

It is further contended that any ambiguity which may exist in the obligatory part of the bond is removed by the language of the condition which it is supposed shows that the sureties intended to bind themselves jointly, and that if there is any discrepancy between the condttion and the obligatory part of the bond the latter must yield to the former. Although we are by no means disposed to assent to this proposition, we think no such discrepancy exists.

The condition in effect, refers to the stipulations in the obligatory part of the bond and declares that if the executors perform the duties required of them by law, that the bond shall be void. It would be a forced and unnatural construction to suppose that it was intended by these general expressions to change the stipulations of the bond so as to make all the sureties’ bound jointly, for both the executors. The natural and fair

interpretation of the condition is, that if each of the executors should perform the duties required of him. by law, the sureties of each should be discharged from the obligation. It is further insisted that the bond' is not obligatory on the plaintiffs in error, because not executed by all the persons who are recited in the obligation as parties to it. This objection rests on the fact that the bond recites that John Ciimmings is one of the sureties of Windham, and the bond appears to have been executed by Thomas Cummings.

The obvious answer to this is, that if it were true as stated, it could not affect the plaintiffs in error, w'ho were the sureties of Elliott, and not bound for the acts of Windham. It is true that if the plaintiffs in error executed the instrument as an es-croto, to be their bond only on condition it was executed by John Cummings, and Thomas Cummings had been afterwards substituted without their consent, it.would not be their bond. But this fact was not put in issue in the Court below, and cannot therefore be made in this Court.

For aught this Court can know, the plaintiffs in error may have executed the bond unconditionally and not as an escrow. Or the latter may have subsequently assented to the substitution of Thomas for John Cummings; this objection, therefore, cannot prevail, at least in the mode now presented.

The act under consideration, which passed in 1832, is to the following effect: “Whenever any execution shall have issued on any decree made by the Orphans’ Court, upon final settlement of the accounts of executors, &c. and is returned by the sheriff “ no property found,” generally, or as to part thereof, execution may and shall forthwith issue against the sureties of such executors, &c. [Aik.

Dig. 253, §40.] The decree of the County Court upon which the execution in this case issued, was rendered in 1831, and previous to the passage of this law,, and it is now maintained that this act is unconstitutional if intended to embrace cases like, the present, because the law would then be retroactive in its character, and in disparagement of rights essential to the enjoyment of property. It is now well understood that the prohibition of the constitution of the United States against the passage by Congress of ex post facto laws, applies only to criminal cases. [Calder v. Bull, 3 Dall. 386; Satterlee v.

Matthewson, 2 Peters, 3-0 ; Wilkinson v. Leland, id. 627; 3 Story’s Com. on Con. 266.] And such is held to be the true construction of a similar clause in the Bill of Rights of this State in the case of Bloodgood v. Cammack, [5 Stew. & Por. 276.] It is equally well setted that a change in the remedy, or means of enforcing the contract does not impair its obligation. Sturgis v. Crowniushield, 4 Wheaton, 200; Ogden v.

Saunders, 12 id. 262; 3 Story Com. on Con. 250.] Now, so far as the act in question operates on the bond of the plaintiffs in error, its whole effect is to authorize an execution to issue against the surety, upon a return of “ no property found,” to an execution against the principal, instead of the more tedious process in force when the bond was made, of bringing suit against the surety in the ordinary mode, after the inability of the principal to pay was ascertained. Of the power of the legislature to pass such a law we entertain not the slightest doubt.

The undertaking of the surety was to answer for the default of his principal — this liability the law does not alter or change in the slightest degree — it leaves the rights of the parties precisely as they were, and merely provides a different mode of enforcing them. The law then, merely respects the remedy — a matter which is entirely within the discretion of the legislature, both as it regards existing and future contracts, provided a remedy of some kind is given.

It is further insisted that the act in question impairs the right of trial by jury, which the constitution declares shall forever remain inviolate. [1st Art. §28.] Executor’s bonds and others of that class are executed in thé presence of a judicial officer, approved by him, recorded and preserved in the office of the County Court. A very strong presumption therefore arises that these documents are genuine, and that the parties to them are subject to the liability which their execution imports.

Upon this natural presumption the legislature has acted, but without intending to deny to any one the right to repel this presumption. If, for example, the execution of the bond were denied, upon an application to a Chancellor, he would direct an issue to be tried by a jury to ascertain that, or indeed any other, fact, which might be open for adjudication, and contested between the parties. Our legislation affords many similar examples in which bonds are declared prima facie to have the force and effect of judgments.

In none of them is the right to appeal to a jury, upon a proper case, prohibited by the legislature. Nor can one be supposed in which such a right would be denied by the Courts upon a proper case being presented.

It having been shown that it was within the power of the legislature, to pass laws having a retrospect as it regarded the remedy for the enforcement of contracts, it remains but to inquire, whether it was the intention of the legislature that this, law should be retrospective in its operation. • It is certainly true of all laws, that unless the contrary be clearly expressed, it must be intended they are to operate in future, unless a contrary presumption must be made to give effect to the plain design of the legislature. In the language of this Court in the case of Philips v. Gray, [1 Ala. Rep. N.

S. 226,] “The future is the appropriate field for legislation, and a statute is never allowed to have a retrospective operation unless clearly so expressed, or unless such implication must be made to give effect to the manifest intent .of the legislature.” The act does not, it is true, declare that it shall operate on. bonds then executed, but the mischief to be prevented was the delay of suing on the bond of the surety, when by the inability of the principal to pay, ascertained by due course of law, the liability of the surety was fixed.

It would be most unreasonable to suppose that in redressing this evil, the remedy was intended to be confined to bonds e*xeeuted after the passage of the law. Nor has such an

interpretation been put upon this or any of the similar laws to be found on our statute book, since their passage; but on the contrary it has always been understood, that they applied as well to bonds executed before as after the passage of the law giving a more

summary remedy. Such was doubtless the intention of the legislature, and such must be the effect given to the law. We do not think, however, that the act was intended to embrace those cases where decrees had been rendered previous to its passage. This would be to give an effect to the decree of the County Court, which it had not at the time it was rendered, and although it might be conceded that the legislature bad such power, we do not think it reasonable that it was in its contemplation.

In all cases where decrees at the passage of the law had been rendered, it might have been, and doubtless was, supposed that the remedy bv suit on the bond had been resorted to, and to prevent such necessity in future was the design of the law. The reasoning therefore which applies to the bond, loses much, if not all its force, when applied to the decree. In a word, there is nothing either in the subject matter on which the law was to operate, or the mischief to be prevented, to repel the presumption which applies to all laws that they are intended to operate in future. The case of the Commonwealth v.

Hewit, [2 H. & M. 181,] is very similar to this case.

An act had passed declaring that when property taken by a sheriff remained unsold at the time of his death, the Clerk should issue a writ of venditioni exponas to his successor. The Court held that the law could not have a retrospect so as to reach cases happening before its passage ; notwithstanding the

preamble recited that, whereas, doubts existed as to the law, &c. [See also 2 Ala. Rep. 54, and cases there cited.] From the view we have taken of the case, it becomes unnecessary to examine some of the questions presented in argument. The conclusion we have come to is decisive against the judgment of the County Court. As there was no authority to issue this execution, it should have been quashed. The judgment of the County Court must be therefore reversed, and a judgment be here rendered quashing the execution.