Several subordinate questions have been discussed in this case, which it is not necessary to decide or consider, as a decision of the principal one is final. Was this cause appealable, or within the jurisdiction of the superior court ? If it was not, our labour is in vain ; for a judgment coram non judice is a nullity.
By the charter of this city, which is a public law, in force when this action was commenced, the city court had cognizance of all causes (wherein the title of land was not concerned) cognizable by the county court, provided the cause of action arose, and one or both of the parties lived, within the city. And in actions brought to the city court for penalties under the by-laws, no appeal was allowed. Stat. 112. 120. tit. 15. c. 1. s. 8. 20. The defendant, however, claims, that *566the act of the legislature, approved June 4, 1828, has enabled to plead title, and made this cause appealable, and ot course, cognizable by the superior court. But this act was passed after the commencement of this suit; and it is in terms prospective. The words are : “ Whenever any action shall be brought to recover a penalty for the erection or continuance of any nuisance upon any public highway &c. and the defendant shall justify,” &c. Stat, vol. 2. p. 196, 7. This certainly could not relate to actions already brought and then pending. And such has been the construction of a similar expression in the statute of frauds, 29 Car. 2. c. 3. which enacts, “ that from and after the 24th of June, 1677, no action shall be brought to charge any person on any agreement made in consideration of marriage, unless such agreement be in writing.” It was said by the court, that it could not be presumed, that the act had a retrospect to take away an action, to which the plaintiff was then entitled. Gillmore v. Shooter’s exr. 2 Mod. 310. So that we may safely leave the question whether the judiciary may declare a retrospective law, operating on vested rights, void, where the Chief Justice has left it in Goshen v. Stoningtan, 4 Conn. Rep. 225., and adopt the opinion of Mr. Justice Thompson in Dash v. Van Kleeck, 7 Johns. Rep. 477. 493. & seq. that a law ought not to have a retrospective operation, unless so declared, in the most unequivocal manner. A similar opinion was expressed, by this Court, in Goshen v. Stoningtan, 4 Conn. Rep. 222, 3. “ A statute is not to be construed as having a retrospect. Such a construction ought never to be given, unless the expression of the law imperiously requires it.”
I dissented from the opinion of the Court in the case last cited ; but not on this point. I then thought and still think, that a retrospective statute (it is not a law) affecting vested rights, is utterly void ; and that the judiciary not only may, but must, declare it so. So thought Ch. J. Kent, in Dash v. Van Kleeck. The marginal summary is : “ It is a principle of universal jurisprudence, that laws, civil or criminal, must be prospective, and cannot have a retroactive effect.” So thought Mr. Justice Story, in The Society for the propagation of the Gospel &c. v. Wheeler & al. 2 Gal. 105. So thought the supreme court of the United States, in Ogden v. Blackledge, 2 Cranch 272., who considered the point too plain for argument, and said, that a statute could not retrospect so as to take away *567a vested right. And so said the court of King’s Bench, in Couch q. t. v. Jeffries, 4 Burr. 2460. wherein the was, whether a statute passed after the commencement of a suit could affect such suit; and they unanimously determined it could not. “ It can never be the construction of this act,” said Lord Mansfield, “ to take away this vested right, and punish the innocent pursuer of it with costs.” But I forbear.— This Court have repeatedly decided otherwise ; and I submit. Vide Hills v. Thrall, in this Court, in 1801. Goshen v. Stonington, 4 Conn. Rep. 209. Mather v. Chapman, 6 Conn. Rep. 54.
But it is said, that there is no evidence, that the suit was commenced before the passage of the statute in question. It appears by the sheriff’s return, which is a part of the record, that the process was served May 28th, and that the statute authorizing an appeal vras approved June 4th, 1828. It is a well settled rule, that the return of an officer is prima facie evidence of the facts therein stated. This statute is a public law, whereof we are bound to take notice. Butts & al. v. Francis, 4 Conn. Rep. 424. Slayton v. Chester, 4 Mass. Rep. 478. 1 Bla. Comm. 85.
It is also said, that the appearance of the plaintiff after the appeal, and submitting to the jurisdiction of the court, by proceeding to trial on the merits, are equivalent to a waiver of all exceptions to the appeal and to the jurisdiction of the court ; and so is the lawq when the want of jurisdiction arises from the want of legal notice. But when the want of jurisdiction appears of record, the defect cannot be supplied by the submission of the party ; for the agreement of the parties cannot alter the law, nor make that good which the law makes void. Aldrich v. Kinney, 4 Conn. Rep. 380. Mitchell v. Kirtland, 7 Conn. Rep. 229. and the authorities there cited.
I am, therefore, of opinion, that there is no error in the judgment complained of.
The other Judges were of the same opinion.Judgment affirmed.