Ogden v. Blackledge

¶1Gonstitmbional law. — Decla/ratory act. — Statute of l/vmitaúons.

¶2The 9th section of the act of assembly of North Carolina, passed in 1716, which directs that unless the creditors of deceased persons shall make their claim within seven years after the death of the debtor, they shall be barred, was repealed by the act of 1789, c. 23, notwithstanding the act of 1799, which declares the contrary.

¶3A legislature cannot declare what the law was, but what it shall be.1

¶4The act of limitation was suspended, as to British creditors, during the war.2

¶5Ogden v. Witherspoon, 2 Hayw. 227, affirmed.

¶6This was a case certified to this court from the Circuit Court of North Carolina, under the act of congress of 29th April 1802, § 6 (1 U. S. Stat. 159), which provides for the event of an opposition in the opinions of the two judges, who are by law to hold the circuit court. The certificate was in the following form, viz.:

¶7United States of America : North Carolina District.

¶8At a circuit court of the United States, begun and held at Raleigh, for the district of North Carolina, on Wednesday, the 29th of December, in the year of our Lord, one thousand eight hundred and two, and in the 27th year of American independence. Present, the Honorable John Marshall and Henry Potter, Esquires.

¶9Robert Ogden, Administrator de bonis non, with the will annexed, of Samuel Cornell, v. Richard Blackledge, Executor of Robert Salter, deceased.

¶10State of the pleadings. This is an action of debt, upon a bond given by the defendant’s testator, to the testator of the plaintiff, on the 2d day of March 1775. The defendant, among other pleas, pleads in bar an act of the general assembly of the state of North Carolina, passed in the year 1715, entitled, “ an act concerning proving wills and granting letters of administration, and to prevent frauds in the management of ^intestate estates,” the 9th section of which was in the following words : “ And be it further enacted, that creditors of any persons deceased, shall make their *163■claim within seven years after the death of said debtor, otherwise such creditors shall be for ever barred.”

¶11To which plea, the plaintiff replies, in substance, that the plaintiff’s testator was, at his death, a British subject, and the debt within the true intent and operation of the fourth article of the treaty of peace concluded between the King of Great Britain and the United States. To this replication, the ■defendant demurs, and the plaintiff joins in demurrer.

¶12This case coming on to be argued, at this term, it occurred as a question, whether the act of assembly, recited in the plea of the defendant, was, under .all the circumstances stated, and the various acts passed by the legislature of North Carolina, a bar in this action. On which question, the opinions of the judges were opposed. Whereupon, on a motion of the plaintiff, by his counsel, that the point on which the disagreement hath happened may, during the term, be stated under the direction of the judges, and certified, under the ¡seal of the court, to the supreme court, to be finally decided : it is ordered, ■that the foregoing state of the pleadings and the following statement of facts, which is made under the direction of the judges, be certified, according to the request of the plaintiff, by his counsel, and the law in that case made- ■and provided ; to wit :

¶131st. That Samuel Cornell, the plaintiff’s testator, was, and until his death «continued to be, a subject of the King of Great Britain ; and the defendant’s testator was, and until his death continued to be, a citizen of North ■Carolina.

¶14*2d. That the defendant’s testator died in the year one thousand ■seven hundred and eighty ; and the defendant, in the same year, was qualified as executor.

¶153d. That the plaintiff sued out his writ in this suit, on the fifth day of October, in the year of our Lord, one thousand seven hundred and ninety-•eight.

¶16■United States of America : North Carolina district.

¶17I William Henry Haywood, clerk of the circuit court / for the district of North Carolina, do hereby certify f the foregoing to be a copy from the minutes. Given ' • under my hand and seal of office, at Raleigh, on the fifth day of January, in the year of our Lord, one thousand eight hundred .and two. W. H. Hatwood, Clerk, (a). ( Seal of Circuit ) Court N. ( Carolina.

¶18Harper and Martin, for the plaintiff.

¶19— The only question in this case is, whether the plaintiff is barred by the 9th section of the act of assembly of North Carolina, passed in 1715. (Iredell’s Digest of the Laws of N. Carolina, p. 30.)

¶201. The first inquiry involved in this general question is, whether that section was repealed, before its operation upon the present case. We contend, that it was repealed : 1st. By the act of assembly of North Carolina, passed in April 1784, c. 23, p. 492,(b) which makes a *different provision on the same subject. Its preamble refers to the 9th section of *164the act of 1715, and the 2d section makes the estate liable to creditors, without being subject to limitation or time,” which is a negative mode of expression, and clearly repeals the former provision in the act of 1715. But even without such negative words, a statute may be repealed by a subsequent act,, which makes a different provision on the same subject. 4 Bac. Abr. tit. Statute. And although the act of 1784 mentions only administrators, yet it evidently applies to executors also. Indeed, the term administrators comprehends executors, for every executor is an administrator; they both plead plene administravit, and the only difference between them is, that one is-created by the act of law, and the other by the act of the party. Even the statute of treasons, 25 Edw. III., stat. 5, c. 2, in which it is declared to bepetit treason, “ where a servant slayeth his master,” has always been construed to comprehend a servant who kills his mistress, or his master’s wife ¿, d fortiori, in a remedial statute shall the term administrator include executor. If the 9th section of the act of 1715 was repealed by the act of 1784, the former was no bar to the plaintiff’s action ; for the seven years had not elapsed, after the death of the defendant’s testator, before the repeal took, place. 2d. But if the act of 1784 did not operate as a repeal, yet it is contended, that the act of 1789, c. 23 (Iredell’s Digest, p. 676), clearly rejsealed the clause of limitation in the act of 1715. The 6th section enacts, “that *^a'w's an<^ Parts laws that come within the purview and meaning of this act, are hereby declared void and of no effect.” The only question upon this law is, whether the 9th section of the act of 1715 comes-within its purview and meaning ; and to show that it does, it is only necessary to read and compare the two acts together, (a)

¶21*165But the legislature of North Carolina passed a law in 1799 (c. 26), which ’declares, in substance, that notwithstanding the 6th section of the act of 1789, the 9th section of the act of 1715 was not repealed. This, however, ■cannot affect the present case, for this action was ^brought in October 1798, before the law of 1799 was passed. But even if it had been brought after the law of 1790, that act could not alter the past law, and make that to have been law which was not law at the time. To declare what the law is, or has been, is a judicial power; to declare what the law shall be, is legislative. One of the fundamental principles of all onr governments is, that the legislative power shall be separated from the judicial.

¶22The Coubt stopped the counsel, observing that it was unnecessary to argue that point.

¶23The act of 1789, by making a provision on the same subject, differing from that of 1715, would have repealed it, without the express clause of repeal contained in the 6th section. Should it be said, that although the 9th section of the act of 1715 may be repealed, yet the present action is within the 4th section of the act of 1789, and barred thereby ; the answer is, that the defendant has not pleaded that act in bar, and the court will not notice a limitation unless pleaded.

¶242. The second inquiry involved in the general question is, whether, if the act of 1789 repealed the limitation of 1715, the latter had operated upon this case, before the repeal.

¶25The defendant’s testator died in 1780. The plaintiff’s testator was a. British subject, and his right of action was suspended, not only by the act of assembly of North Carolina, passed in 1777, c. 2, § 101 (Iredell’s Digest, p. 318), (a) but by the law of nations, which prohibits an alien enemy from *166maintaining ^action in- the courts of tbe nation with whom bis sovrigbt of action was not restored until tbe act any ereign is at war : and bis of assembly of 1787, c.' 1 (Iredell’s Digest, p. 607), declared tbe treaty with Great Britain to be tbe law of tbe land, and directed tbe courts to decide accordingly, (a)

¶26By tbe 4th article of tbe definitive treaty of peace, creditors are to meet with no lawful impediment to tbe recovery of their debts. The limitation therefore, could not begin to run, before the removal of all such lawful impediments. Tbe treaty was ratified on tbe 14th of January 1784, and even calculating from that date, only five years bad elapsed before tbe repeal.

¶27It may be remarked also, that this same Samuel Cornell is one of tbe persons expressly named in tbe act of confiscation of October 1779, c. 2 (Iredell’s Digest, p. 479), and therefore, it cannot be contended, that be was not one of tbe persons whose rights of action were suspended by tbe act of 1777s-c. 2. At tbe time of tbe repeal, tbe plaintiff was entitled to bring and maintain bis action. Ro right bad then vested in tbe defendant, under tbe act of limitations, and therefore, tbe principle does not apply, that tbe repeal shall not divest a right. *Acts of limitation do not absolve tbe debt; they only bar tbe remedy. Quantock v. England, 5 Burr. 2628. They are nothing more than legal impediments. Tbe replication of tbe treaty was therefore, good.