Commonwealth v. Kimball, 21 Pick. 373; Springfield v. Hampden, 6 Id. 501. If the repealed statute merely prescribed a remedy for a previously existing right, some other remedy may be presumed or provided: Plantation No. 9 v. Bean, 36 Me. 360. But if the right itself was created by statute, and existed only by virtue of its provisions, then the repeal of the statute defeats the right itself, unless already vested by a judgment: Butler v. Palmer, 1 Hill (N. Y), 324. So it has been held by this court in reference to this act now under consideration. After the statute of 1836 had been repealed by that of 1841, no rights existed under the former act, except such as were expressly secured by the saving clause of the latter: Longley v. Little, 26 Me. 162.

Nor can it make any difference that the portion of the act repealed now under consideration was substantially re-enacted as a part of the repealing act. It was the same in the acts of 1836 and 1841, but it was not held to make any difference in the case above cited. If a statute is absolutely repealed, all rights under it are severed, however brief the period intervening before another similar act is passed. So legislatures have always understood it. If it were not so, when statutes are revised, codified, and re-enacted, no saving clauses and exceptions would be necessary. A person could still be convicted under a repealed criminal statute if it was substantially re-enacted at the time of its repeal, though the repealing act contained no provision to that effect. This cannot be so. If an act is only amended, the line of its operation is not severed. New threads are interwoven or old ones taken out. But if it is repealed, though another like it is re-enacted, all connection between the old and the new is cut off, except what is saved by special provisions. The former statute becomes as if it had never existed: Key v. Goodwin, 4 Moo. & P. 341. And the new statute commences as if none had preceded it. Such, we think, is clearly the better rule of construction. "Hence, it is usual in any repealing law to make it operate prospectively only, and to insert a saving clause preventing the operation of the repeal, and continuing the repealed law in force as to all pending prosecutions, and often as to all violations of the existing law already committed:" Commonwealth v. Marshall, 11 Pick. 350 [22 Am. Dec. 377]. The repealing act of 1856 contains no such saving clause, embracing debts previously contracted, unless suits thereupon were then pending. We are therefore satisfied that this action cannot be sustained under the statute of 1841.

Nor is the conclusion in conflict with the case of Wright v.

Orkley, 5 Met. 400. It was there held that whether a contract was barred by the statute of limitations, which had been repealed and re-enacted with some modifications, must depend upon the facts, and the law as it was contemporaneous with the facts. But the ground of the decision was, that the case was within the saving clause of the repealing act, which, besides excepting actions then pending, provided that it should not "affect any act done, or any right accruing or accrued or established" at the time of the repeal. In determining whether the case was within the exception, and giving a construction to the new statute, the court very properly took into consideration the statute that had been repealed by it; but no intimation was made that the latter had any force or vitality, except so far as specially saved by the repealing act.

But it is argued, further, that the plaintiff has a right of action against the stockholders by the terms of the statute of 1856. This provides that "the stockholders of all corporations shall be liable for the debts of the corporation contracted during the ownership of such stock." Does this render them liable for debts contracted prior to the passage of the act? If not, the defendant is not liable, for the debt was contracted in 1855.

In general, statutes are to be construed as prospective only, unless the intention to give them a retrospective operation is clearly expressed: Hastings v. Lane, 15 Me. 134. The statute of 1856 is not very explicit in this respect. The verbs expressing the liability are in the future tense, "shall be liable;" but the time of liability-"during their ownership of such stock"may include the past as well as the future. And when we consider that this act was designed to take the place of a similar statute repealed by it, we think it probable that the legislature intended it to be retrospective. Had they any constitutional power to enact a law making stockholders in corporations personally liable for the corporate debts previously contracted?

We have already seen that a statute imposing such a liability is entirely at variance with established principles of law, and must be construed strictly. The creditor contracts with the corporation only. Aside from the positive provisions of statute, the stockholders are no more liable than for the debts of third persons. The claim of the creditor, like that of a town which has expended money to relieve a pauper whose settlement is in another town, is based entirely upon the statute.

There can be no doubt that legislatures have the power to pass retrospective statutes, if they affect remedies only. Such is the

1

well-settled law of this state. But they have no constitutional power to enact retrospective laws which impair vested rights or create personal liabilities. This subject was elaborately dis cussed by Mellen, C. J., in the case of Kennebec Purchase v. La boree, 2 Me. 275; and it was there held that the constitution secures the citizens "against the retroactive effect of legislation upon their property." And in regard to the question of what is a retrospective law thus unconstitutional, the court adopted the definition of Judge Story-"a statute which creates a new obli gation or imposes a new duty." A statute making members of corporations personally liable for the corporate debts is clearly within this definition, and therefore can be held to operate pros pectively only.

This was so decided in Massachusetts, in the case of Gray v. Coffin, 9 Cush. 192. Such a statute was held to be consti⚫ tutional, on the ground that "it was future and prospective in its operation, regulating the rights of debtor and creditor as they should afterwards arise." It was therefore concluded that the legislature intended it to be prospective only. So we must presume in regard to the statute of 1856. Whatever the legis lature in fact intended, we are to presume that they intended to do that only which the constitution authorized them to do. "For no legislator could have entertained the opinion that a citizen, free of debt, could be made a debtor by a legislative act declaring him one:" Parker, C. J., in Medford v. Learned, 16 Mass. 215.

We have thus reviewed the legal principles upon which this case must depend; and we have carefully considered the able arguments of counsel in this case, and in several others, now before us, of like impression. And if we apply to it those rules of construction which have been recognized in courts of law, we are brought to this conclusion, that this action cannot be sustained upon the statute of 1841, because it has been repealed, and there is no saving clause in the repealing act, which embraces actions subsequently commenced; and that it cannot be maintained upon the statute of 1856, because the debt was contracted prior to its enactment. According to the agreement of the parties a nonsuit must be entered.

TENNEY, C. J., and HATHAWAY, APPLETON, and MAY, JJ., concurred.

LEGISLATIVE POWER OVER CORPORATE CHARTERS, and effect of charter as contract: See Claghorn v. Cullen, 53 Am. Dec. 450, and note 461-474; Thorp . Rutland R. R. Co., 62 Id. 625, and note 638, 639.

STOCKHOLDERS OF CORPORATION, LIABILITY FOR DEBTS: Corning v. Mc. Cullough, 49 Am. Dec. 287, and note 310, citing other cases.

STATUTE MAKING STOCKHOLDER OF CORPORATION LIABLE FOR CORPOBATE DEBTS is valid, except so far as it makes them liable for debts contracted before the passage of the act: Wheelwright v. Greer, 10 Allen, 393, titing the principal case.

POLICY, NECESSITY, OR EXPEDIENCY ARE NOT TO BE CONSIDERED in construing statute: See Coulter v. Robertson, 57 Am. Dec. 168; Bellville etc. R. R. Co. v. Gregory, 58 Id. 589, and note 599; Bepley v. State, Id. 628, citing the principal case.

RETROSPECTIVE LAWS ARE CONSTITUTIONAL WHEN REMEDIAL IN THEIR NATURE ONLY, and if they do not impair vested rights: See Wynne v. Wynne, 58 Am. Dec. 66, and cases in note 73.

ELDER v. LARRABEE.

[45 MAINE, 590.]

PART OWNERS OF SHIPS ARE TENANTS IN COMMON, HOLDING DISTINCT BUT UNDIVIDED INTERESTS; and each is deemed the agent of the others as to ordinary repairs, employment, and business of the ship, in absence of any known dissent.

EACH PART OWNER OF VESSEL IS, IN GENERAL, LIABLE IN SOLIDO for cost of making repairs or for necessaries actually supplied to the vessel in good faith.

AUTHORITY OF PART OWNER OF VESSEL TO BIND HIS CO-TENANTS THEREIN

for necessary repairs, though ordinarily implied, is not conclusively presumed, but is subject to be modified, controlled, or negatived by facts or circumstances to the contrary.

REPAIRS TO VESSEL IN HOME PORT, BY ORDER OF ONE Part Owner, if made by person knowing who the other owners are, will be presumed to have been made on the credit of the part owner employing him, if he had opportunity to consult the other owners but neglected to do so, unless he can show that they all assented to the repairs; and his remedy is against the owner employing him alone, or against the vessel itself by proceedings in rem.

ASSUMPSIT.

The facts are stated in the opinion.

Ingersol, for the plaintiff.

F. A. Wilson, for the defendant.

By Court, RICE, J. Assumpsit for the price of a sail furnished for the schooner Regulator. In 1856, as appears from the evidence in the case, the plaintiff and defendant were owners of the schooner Regulator, each owning one half thereof.

By arrangement between them, in the spring of that year, the management of the schooner was intrusted to the defendant, who caused her to be repaired, paying the bills from the earnings of the vessel. In the spring of 1857 she was again repaired

by the defendant, who appointed Captain Green master, and sent her to sea.

June 8, 1857, the plaintiff conveyed his half of the schooner to Laforrest Cushing, who immediately afterwards went to Boston, where the schooner then was, and induced Green to surrender the command of her to him, after which he took the oath required by law as master, and returned with the schooner to Bangor. On the day of his arrival at Bangor he called on the defendant, who resided in that city, and inquired of him what he should do with the schooner. Defendant said, "Do nothing." Whereupon Cushing told him, "Help yourself if you can-I own half of her." After some further conversation, in which the defendant manifested a determination to prevent Cushing from having control of the schooner, they separated. Soon after this the bill for which this action has been brought was incurred by Cushing.

The jury, under instructions from the court, returned a general verdict for the plaintiff, and also found specially that the repairs were necessary; that they were made upon the credit of the vessel and owners, and that the defendant did not notify the plaintiff before the repairs were made that he would not be accountable for them.

The presiding judge was requested by the defendant's counsel to instruct the jury that said Cushing was not legally master under the above state of facts, to order repairs or to bind the owners therefor.

This request was refused, as is now contended, erroneously.

The repairs were made in a home port, and the plaintiff now claims to recover on the ground that they were ordered by Cushing, not as master or ship's husband, but as part owner, The question, therefore, whether Cushing was or was not legally master is unimportant, as it is not denied that he was at the time part owner.

Had he authority, under the circumstances as part owner, to render the defendant or co-owner liable for the repairs in question?

In general, all the part owners are liable each for the whole amount, for all the repairs of a ship, or for necessaries actually supplied to her in good faith: Parsons's Mercantile Law, 335.

In all that concerns the repairs and necessaries of the ship, one part owner is the agent for the other part owners: Collyer on Part., sec. 1226; and may bind his fellows for repairs and necessaries: Id., Bec. 1218.