to the principles of law, nor according to the principles of justice and equity; nor, we may add, from any principle of fair deal among men. If it is allowed at all, it must be allowed from a principle of generosity merely. We have no right to allow it from that principle. The legislature could not have intended to give us power to allow claims upon that principle. They have no right to pass a law that would give such power. They have no right to pass a law that would take the money from the people and give it away. If they give at all, they must give as individuals, and that from their own purses; and not, as legislators, give from the purse of the people.

The judgment of the county court, which disallowed the claim of the petitioner, is affirmed.

THAT A STATE CAN NOT BE SUED IN HER OWN COURTS without the consent of the legislature, see Divine v. Harvie, 18 Am. Dec. 194. As to allowing set-offs in actions brought by the state against a citizen, see the note to Gregg v. James, 12 Id. 153. As to suits against the United States in state courts, see Orleans Navigation Co. v. Schooner Amelia, 12 Id. 516, and the note thereto.

SOMMERS V. JOHNSON.

[4 VERMONT, 278.]

THE ACT OF 1830, EXTENDING RELIEF TO IMPRISONED DEBTORS is constitutional, and applies to persons in prison when the act was passed. THE LEGISLATURE MAY ENACT LAWS VARYING THE REMEDY for the collection of debts, and if the laws are general, and contain such provisions as the public good requires, they are constitutional, and all proceedings, as well for old as new debts, should conform to them.

EXCEPTIONS were taken to the ruling of the county court, releasing Sommers from prison under an execution upon a judgment recovered by Johnson against him in an act of slander. Sommers was in prison at the time the act of 1830, of which he had obtained the benefit, was passed. Johnson resisted Sommers' petition for relief under that act, on the ground that it did not apply to this case, and that if it did, it was unconstitutional.

Mattocks and Fletcher, for the petitioner.

Davis, contra.

By Court, HUTCHINSON, C. J. Two questions only are presented in the case before us. The first is, whether the statute, passed November 10, 1830, extends its relief to persons then in prison. The expression of the statute is: "Whenever any

person is imprisoned," etc. It is contended that this only looks forward to new cases of imprisonment. We think it not necessary so to limit its extent. It is a remedial statute. It was made to remedy the evil of imprisoning persons for torts, and depriving them of the power to labor to obtain their own living, or to obtain the means of paying their executions, after their imprisonment had become a mere punishment to them, without any prospect of benefit to their creditors. The statute provides that in such cases the county court, on petition to them, as was made in this case, may inquire into all the circumstances of the case, and grant the power to petition the jail commissioners for liberation on taking the poor debtor's oath. It becomes the duty of the court to decide under this statute whether the imprisonment has become merely punishment, and whether the prisoner has been sufficiently punished, and whether it is safe, and best for society, that he should be liberated, in case he can show his poverty before the jail commissioners. For all these purposes nothing depends upon the time when the imprisonment commenced; but upon its length, and its effects upon the prisoner in reforming him, and reducing him to poverty, and bringing distress upon his family, if be has one. The expression of the statute is clearly prospect ive in some sense. It is so with regard to preferring the petition to the court, and all proceedings under it. But the expression is perfectly applicable to a man's being in prison at the time of preferring his petition with regard to the time when the imprisonment commenced. Any man is imprisoned each moment from the time of his commitment to the time of his discharge; and there is no reason to believe that the legislature intended to provide relief for those who should afterwards be committed to prison, and leave in perpetual imprisonment those whose hard bondage alone dictated the necessity of the statute.

Considering the case to be within the statute, we pass to the other question, which regards the constitutionality of this statute, especially as applicable to a person already imprisoned. We think it is constitutional; and among all the questions raised upon constitutional law, I never, till in this case, heard a suggestion but what such a general law was constitutional. Particular statutes, made to relieve certain individuals, by name, and take them out of the power of the general laws that govern other citizens, and in direct terms take away rights that had become complete under the general statutes, have been decided to be unconstitutional. Such have been those called suspension acts.

The general statutes made provision that all creditors might imprison their debtors till they either paid the debt, or were discharged by being admitted to and taking the poor debtor's oath. A statute, made in behalf of a single debtor, and upon his petition, enacts that he shall be imprisoned no longer till the expiration of five years, and that his departure from the liberties shall not be a breach of his prison bond, the very terms of which bond are, that such a departure shall be a breach of the bond. Wholly unlike these, are those general statutes, which vary the mode of process, or the course of collection of debts, or the mode of discharge from imprisonment. These all have a retrospective operation to a certain extent, and yet are constitutional. For a time, before the formation of this state, there was no law for the collection of debts. The state was formed, and such laws were enacted as enabled creditors to coerce the payment of their debts. These extended equally to past and future contracts. When the statute passed, which made provisions for poor debtors to be discharged from their imprisonment, by a process testing their poverty, this extended to pre-existing debts. In all the changes of that system, varying the term of notice to the creditors, and adding to the list of privileged property, and varying the board which must act upon these questions, the old debts have been subject to the new statutes. So of the statutes which have varied the jurisdiction of courts, and the mode of service on personal property, and enlarged the exemptions from attachment. None of these were ever treated as unconstitutional, nor suspected to be so. And yet the persons in prison, when the new laws came into force, have had the benefit of such new laws. Without doubt, the legisture have a right to enact laws which vary the remedy for the collection of debts; and if these laws are general in their operation, and contain such provisions as the public good requires, they are constitutional, and all proceedings, as well for old as new debts, should conform to their provisions.

The judgment of the county court is affirmed.

CONSTITUTIONALITY OF STATUTES VARYING REMEDIES.-See the notes to Goshen v. Stonington, 10 Am. Dec. 136; Baily v. Gentry, 13 Id. 493; and Jones v. Crittenden, 6 Id. 540; see also Townsend v. Townsend, 14 Id. 722, and note; January v. January, 18 Id. 211. A special act, freeing a debtor from imprisonment, and discharging all bonds taken on his admission to the liberties of the prison, does not extend to an escape previously committed, or if it does so, it is void, as impairing the obligation of contracts: Starr v. Robinson, 6 Id. 732.

WARNER, ADM'R OF WARNER, v. PAGE.

[4 VERMONT, 291.]

AN ABANDONMENT BY A TENANT AT WILL is to be considered an abandon

ment to the landlord or his grantee.

PRIOR POSSESSION UNDER A CLAIM OF TITLE is sufficient as against a defend. ant who sets up no title.

A GRANTOR WITH WARRANTY, who puts a third person in possession, is pre sumed to act on behalf, or as agent of, his grantee.

EJECTMENT. The plaintiff produced conveyances from Williams to the deceased, in April, 1814, for the lot in question. The lot was taken up and possessed by one Collington, prior to 1809, who consented to hold under the Williams title. There was also conflicting evidence tending to prove that possession had been abandoned a year or two previous to the Warner conveyance. Conflicting evidence was also introduced that one Sargeant, under whom the defendant derived title, had made a verbal agreement with Williams, in the fall of 1814, for the purchase of the land, and had entered into possession.

The instructions of the court appear from the opinion. Verdict and judgment for the defendant.

Fletcher, for the plaintiff.

Hibbard and Cushman, contra.

By Court, HUTCHINSON, C. J. The plaintiff has shown no other title in his intestate than actual possession, by his tenant under his claim of title; and whether he has shown this depends upon the finding of the jury, under correct instructions from the court, upon the point of the tenancy, either of Collington or Sargeant, or both. As it was left to the jury, they found for the defendant. The correctness of the instructions upon these possessions is all we have to examine. As the jury might probably understand these instructions, they might not lead to a correct result in their deliberation. By the expression, "if the possession by Collington was discontinued and abandoned, before the giving of the deed from Williams to Warner, no seisin passed by the deed," the jury might consider that they had nothing to consider but the true time when Collington left the possession. Whereas, if Collington consented to hold under Williams' supposed title, and, from that time, held in that way, his going away and leaving the farm vacant would be a surrender of it to Williams, or to his assignee or grantee. If we call it abandonment, it would be abandonment to Williams or his

grantee. We must bear in mind, in all this, that the defendant sets up no title. Against a person in such a condition a prior possession under claim of title is itself sufficient title, unless the premises are left vacant for so long a period as to create a presumption that all concerned in such prior possession had abandoned it. There seems to have been no evidence in this case sufficient to warrant such a presumption. If the jury might presume that Collington had left the premises with no intention of returning, yet there was no ground to presume that Williams and Warner had abandoned their claim. With this view presented to the jury, it is possible they might have found for the plaintiff.

An exception was also taken to the instructions, with regard to the plaintiff's availing himself of the possession of Sargeant. There being evidence to be weighed on both sides, whether Sargeant took possession under a license from Williams, the court instructed the jury that this, as well as the question of Williams' acting as agent of Warner, must be decided by the proof, and not by any presumption. This was liable to be misunderstood by the jury. It is true, there must be no presumption, aside from the proof of facts, from which the presumption might be raised. But there seems to be evidence, in this case, from which the jury might infer that Williams acted as agent for Warner, in putting Sargeant in possession. On inspection of the deed from Williams to Warner, we find it to be a warranty deed. That gave Williams a deep interest in having a possession kept under his title, if he were not very sure that his vendue title was perfectly good. Whatever Williams did in procuring inchoate, or auxiliary, or absolute title, would all inure to the benefit of Warner, his grantee. Now, if the jury found that Sargeant took possession by license from Williams, the evidence that Williams had thus given a warranty deed to Warner, and that Warner was not disturbing or complaining of this possession, was proper to be left to the jury as a ground of presumption that Williams acted as agent of Warner. This was not so left to the jury, and the charge was liable to be understood as excluding all presumption from the case, or deciding that there was no testimony proper to raise a presumption favorable to the plaintiff, on the subject of the possession of Sargeant.

The judgment of the county court is reversed, and a new trial is granted.