Sec 366

It may happen that by special legislation a particular class may be subjected to only a limited liability on its contracts. Such legislation has taken place with regard to contracts for labor, and to contracts by sailors; and under the same general head may be considered contracts by infants. The fact, however, that the liability of such parties is limited does not interfere with their right to sue on contracts which are for their own benefit.7

Sec 367

Statutes prohibiting the performance of contracts, if impairing the obligation of such contracts, are inoperative under the constitution of the United States. It may happen, however, that such, statutes are in execution of a power reserved by the state, as where in chartering a corporation, the right to amend its charter is reserved; or it may be that they are in exercise of the right of eminent domain or of other prerogatives to which the constitutional restriction does not apply. Such a statute, if constitutional, is as much a bar to the performance of a contract as it would have been had it been enacted prior to the inception of the contract; and this is also the case with lawful executive action, by which the performance of the contract is made impossible.1 But where a contract was originally legal, a subsequent statute making it illegal does not discharge an agent appointed under the contract from accounting to his principal.2 And as a general rule, a contract valid under the laws of a state as expounded at the time it was made is not affected by a subsequent change of judicial opinion as to the validity of such a contract.3 The courts, also, following the maxim Communis error facit jus, will sustain a prevalent construction which may be based on erroneous principles, rather than disturb titles settled under such construction.4 But, to enable the maxim to operate, the Party protected by statute may sue.

Agreement cannot be made unlawful by subsequent legislation or change of judicial opinion.

1 Thome v. Ins. Co., 80 Penn. St. 15.

2 Barton v. Piggott, L. R. 10 Q. B. 86.

3 Fowler v. Scully, 72 Penn. St. 456.

4 O'Hare v. Bank, 77 Penn. St. 96; Mapes v. Bank, 80 Penn. St. 163.

5 Pray v. Burbank, 10 N. H. 377.

6 Wheeler v. Russell, 17 Mass. 258. That the imposition of a penalty on the act stamps the act, so far as concerns parties intelligently concocting it, with illegality, see Fergusson v. Norman, 6 Scott, 794; Houston v. Mills, 1 M. & R. 325; Forster v. Taylor, 5 B. & Ad. 896; Coombs v. Emery, 14 Me. 404; Harris v. Runnels, 12 How. U. S. 80; Bancroft v. Dumas, 21 Vt. 456; Miller v. Post, 1 Allen, 43*4; White v. Bass, 3 Cush. 449; Prescott v. Battersly, 119 Mass. 285; Griffith v. Wells, 3 Denio, 226; Seidenbender v. Charles, 4 S. & R. 159; Fowler v. Scully, 72 Penn. St. 456; Thorne v. Ins. Co., 80 Penn. St. 15; and cases cited 2 Ch. on Cont. 11th Am. ed. 1004.

7 Supra, sec 2, 353. But see Hackett v. Chellerton, supra, sec 353.

1 Supra, sec 305; Pollock, 340; Atkinson v. Ritchie, 10 East, 530; Brown v. Delano, 12 Mass. 370; Barker v. Hodgson, 3 M. & S. 267; Esposito v. Bow-den, 7 E. & B. 763.

2 Newbold v. Sims, 2 S. & R. 317.

3 1 Dill. Munic. Corp. 146; Gelpke v. Dubuque, 1 Wall. 175; Olcott v. Supervisors, 16 Wall. 678; Elmwood v. Marcy, 92 U. S. 291; Venice v. Murdoch, 92 U. S. 494; Walker v. State, 12 S. C. 200.

4 Broom's Maxims, 5th ed. 139; Wh. on Ev. sec 1242; Kostenbader v. Spotts, 80 Penn. St. 430.

"This" (communis error facit jus), "though an admitted legal maxim, is seldom applied in the administration of justice, and never without the utmost caution. The reason is obvious, it permits a misconception to become law in destruction of the real law of the case. In my judgment, no error should be allowed to possess that degree of dignity and force until it has been sanctioned by a tribunal of superior jurisdiction, and subsequently treated as law in the actual business affairs of men. The true rule, I believe, to be this: That no error is entitled to be accepted as law by the courts until it has been declared to be law by a competent judicial decision and afterwards so far adopted in practice that a return to the true law would seriously impair existing interests.

"In O'Connell v. Queen, 11 Cl. & F. 373, Lord Denman said: ' When in pursuit of truth we are obliged to investigate the grounds of the law, it is plain, and has often been proved by recent experience, that the mere statement and restatement of a doctrine - the mere repetition of the cantilena of lawyers - cannot make it law if it be irreconcilable with some clear legal principle.'

"And Lord Brougham, in De Vaynes error must not be " floating," but "must have been made the groundwork and substratum of practice."1