concurring in result: The date on which plaintiff purchased the stock in controversy is not alleged in the complaint. Standing alone, the complaint is sufficient, and, ordinarily, the defect in plaintiff’s cause of action relied on by defendant, being latent, would he a matter in defense. However, the court below found as a fact' — -apparently by consent and at least without exception — that the stock was *660acquired in 1919. In deciding the question presented it is permissible, therefore, for us to take cognizance of the fact thus found.
At the time defendant purchased this stock he became liable, in case of insolvency of the plaintiff, under the double liability statute, C. S., 219 (a). Subject to the terms of this section, which has since been repealed, he was the absolute owner thereof free of any claim against him or any right of assessment against the stock by plaintiff.
Ch. 56, sec. 3, Public Laws, Extra Session 1921, as amended by ch. Ill, Public Laws 1925, and ch. 243, Public Laws 1931, is not unconstitutional as stated in the majority opinion. It is not so contended by the defendant. As it creates a new liability and provides a special remedy for its enforcement, it relates only to stock thereafter issued and acquired. That is to say, it operates prospectively — not retroactively. There is no language in the act which seeks to make it otherwise.
As the statute, as amended, is prospective in operation it does not affect defendant’s vested rights in existence at the time of its enactment. Therefore, plaintiff has no cause of action to sustain the writ of attachment issued by the clerk and the service of summons by publication is void. We need say this and nothing more.
Stacy, C. J., and 'WiNbobNe, J., join in this opinion.