The Bank of Hamilton, in Error v. The Lessee of Ambrose Dudley, Jun.
Administrative Proceeding Supreme Court of the United States, Case No. Unknown

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27 U.S. 492

2 Pet. 492

7 L.Ed. 496


January Term, 1829


THIS is a writ of error to a judgment rendered in the court of the United States for the seventh circuit and district of Ohio; in an ejectment brought in that court by the defendants in error, against the present plaintiffs for part of lot No. 103, in the city of Cincinnati.


The plaintiff is heir at law of Israel Ludlow, who died seised of the premises in the declaration mentioned. The defendant claimed under a sale and deed made by the administrator of the said Israel Ludlow, in pursuance of certain orders of the court of common pleas for the county of Hamilton.


The case depends on the validity of this deed.


In August 1788, the territorial government of Ohio enacted, 'a law establishing a court of probate.' The first section enacts that 'there shall be appointed one judge of probate in each county whose duty it shall be to take the probate of last wills and testaments, and to grant letters testamentary and letters of administration, and to do and perform every matter and thing that doth or by law may appertain to the probate office, excepting the rendering definitive sentence and final decrees.


In 1795, an orphans' court was established, and it was enacted that where persons die intestate and leave lawful issue, 'but not a sufficient personal estate to pay their just debts and maintain their children, it shall be lawful for the administrator or administrators of such deceased person to sell and convey such part or parts of the said lands or tenements for defraying their just debts, maintenance of their children, &c. as the orphans' court of the county where such estate lies, shall think fit to allow, order and direct from time to time.'


In the year 1802, Ohio became an independent state. The constitution, in the article which respects the judicial department, declares that 'the court of common pleas in each county shall have jurisdiction of all probate and testamentary matters, granting administration, the appointment of guardians, and such other cases as shall be prescribed by law.' In April 1803, the judicial courts were organized; and the court of common pleas, after a general grant of original jurisdiction, was empowered to examine and take the proof of wills, to grant administration on intestate estates, and to hear and determine all causes, suits, and controversies of a probate and testamentary nature.


In June 1805, the territorial ordinance of 1795 was repealed.


At the trial of the ejectment in the circuit court, after the plaintiff had closed his evidence, the defendants offered in evidence a deed from the administrators of Israel Ludlow deceased, to Andrew Dunseth, for the premises in the declaration mentioned. 'They also offered in evidence duly certified entries and copies of orders from the records of the court of common pleas within and for the county of Hamilton state of Ohio, of which the following are true copies, viz. '2d of February 1804: Letters of administration granted unto Charlotte C. Ludlow, John Ludlow, James Findlay and James Pierson, on the estate of Israel Ludlow deceased, and their bond with William Ludlow and James Smith as securities for their faithful administration." At May term in the year 1804, date 8th of May 1804, the following order was made, viz. 'The administrators of the estate of Israel Ludlow deceased exhibit an account current and pray the court to issue an order for the sale of real property to defray the debts due from the estate, &c. John Ludlow and James Findlay sworn in court. The Court order so much of the real property to be sold as will meet the said demand, except the farm and improved land near Cincinnati together with the house and lots in Cincinnati.' At the August term of the said court in the year 1805, a supplemental order was made of which the following was a copy, viz. 'The administrators of I. Ludlow deceased, on application to the court to extend the order for the sale of property to discharge the debts arising from the estate: whereupon the court allow the administrators to sell the house and lots in the town of Cincinnati and any other property, except the mansion house and farm in the country so that the sale do not amount to more than ten thousand dollars. This entry considered as of May term 1805.'


It was in evidence that the sale was made agreeably to the provisions of the law adopted from the Pennsylvania code by the governor and judges of the north western territory on the 16th of June 1795, entitled 'a law for the settlement of intestate estates;' that the deed was duly executed, acknowledged and proved.


The plaintiff by his counsel moved to overrule the testimony offered by the defendants' counsel, because the law aforesaid, entitled 'a law for the settlement of intestate estates,' was repealed before the order was made authorizing said sale, and that at the time of making of the said order there was no law of the state of Ohio authorizing the court of common pleas to order the sale of real estate for the payment of debts, &c. of intestates. The court sustained the motion and overruled the defendants' evidence. The defendants excepted to this opinion.


The jury found a verdict for the plaintiff; after which the counsel for the defendants moved the court for the appointment of commissioners, under the occupying claimant law of Ohio, to value improvements. This motion was overruled, and judgment was rendered for the plaintiffs.


The case was argued for the plaintiff in error by Mr Benham and Mr Baldwin; and by Mr Garrard for the defendant.


For the plaintiff it was said, that the defendant in error claims by descent, as heir at law of Israel Ludlow, deceased, who died seised of the premises in question; and the plaintiff claims by purchase from his administrator.


The case is one of deep interest to the present litigants, as well as to all those who hold real estate in Ohio under deeds from administrators, and this class is numerous. Its decision depends upon old statutes which it is proposed to collate, in such a manner as to aid the judgment of the court in expounding them in reference to this case.


These statutes will be found between the periods of 1788 and 1805, and to relate, 1. To the establishment of probate and testamentary courts under the territorial government. 2. Their powers and jurisdiction. 3. The abolition of these courts upon passing from a territorial into a state government. And 4. The organization of new courts of similar jurisdiction, and the modification and repeal of laws relating to testamentary matters.


The facts of the case in reference to which the Court must expound these laws are as follows: Ludlow died the 21st of January 1804. On the 2d of February of that year, administration was granted upon his estate to John Ludlow and others, who gave bond with sureties, as the law required, for the faithful execution of their trust. On the 10th of May 1804, the following proceedings were had in the court of common pleas of Hamilton county, viz. 'The administrators of J. Ludlow deceased exhibit an account current, and pray the court to issue an order for the sale of real property to defray the debts due from the estate, &c. John Ludlow and James Findlay, sworn in court. The court order so much of the real property sold as will meet the said demands, except the farm and improved lands near Cincinnati, together with the house and lots in Cincinnati.' On the 15th of August 1805, the court made another order as follows: 'The administrators of J. Ludlow deceased, on application to the court to extend the order for sale of property to discharge the debts owing from the estate: whereupon the court allow the administrators to sell the house and lots in the town of Cincinnati and any other property except the mansion house and farm in the country, so that the sales do not amount to more than ten thousand dollars—this entry considered as of May term 1805.' The administrators, under the above orders or decrees, sold the lot in dispute and made a deed therefor to Andrew Dunseth, under whom the plaintiff in error claims, which orders and deeds were offered in evidence in the circuit court and overruled.


Whether this evidence were admissible or not, will depend upon the solution of the following propositions:


1. Had the court of common pleas jurisdiction of the subject matter'? 2. Was it competent for that court, upon the application of administrators, to condemn the real estate of intestates to be sold for the payment of their debts, &c. 3. Did the sale and deed of the administrators of the lot in question, pass the legal title to their vendee?


By the law of the territory, adopted by the governor and judges in 1788, and confirmed in 1799, Ohio Laws, 378-9, a qualified jurisdiction over probate and testamentary matters was confided to a judge of probate in each county. This judge had power to grant letters testamentary and of administration, receive guardians chosen by, and appoint guardians for minors, idiots and insane persons: but he had no power to compel executors, administrators, or guardians to execute faithfully their duties. And for this purpose, in 1795, an orphans' court was instituted, with supervisory jurisdiction, to call trustees to account, and to review the judicial proceedings of the judges of probate. Maxwell's Code, 81. At the time the orphans' court was established, in June 1795, a law was adopted from the Pennsylvania code 'for the settlement of intestates' estates,' Maxwell's Code, 90. This statute prescribes the form of administrators' bonds, directs the distribution of the personal estate under the superintendence of the orphans' court; and provides (section 7), upon a deficit of personalty to pay the debts of intestates and maintain and educate the children, &c. for the sale of the lands and tenements for these purposes by the administrator; in such manner as the orphans' court 'shall allow, order and direct, from time to time.'


In May 1798 another act was adopted, which contained a general provision for the sale and distribution of insolvents' estates, which was repealed by an act passed January 1802 on the same subject. Ohio Land Laws, 383. Coveal with the last mentioned act, a law was passed for the appointment of guardians to lunatics, &c. which provides for the sale of their real estates, in the same manner that administrators are authorised to sell the real estates of their intestates. Terr. Law. 120. Thus stood the laws relative to courts probate and testamentary, and the apportionment of jurisdiction among them, and relative to the sale and distribution of the estates of intestates, minors, idiots, &c. up to the adoption of the state constitution in 1802. In this political transit from a territorial to a state government, the courts above mentioned were abolished, and new courts instituted with plenary probate and testamentary jurisdiction.


But the abolition of the testamentary courts of the territory, did not abrogate the laws above cited, relative to the sale of intestates' estates for the payment of debts, &c.; the act adopted from the Pennsylvania code in 1795 remained in full force. What court under the state government was charged with its execution, will now be considered.


By the constitution of Ohio, the judicial power of the state is vested in a supreme court, courts of common pleas, and justices of the peace. The common pleas is invested with jurisdiction of all probate and testamentary matters, granting of administration, &c. (art. 3, sec. 2) and such other cases as shall be prescribed by law. It also provides that all actions, suits, prosecutions, rights, claims and contracts, shall continue as though no change had been made in the organic law. Sched. section 1st.


It is maintained to be clear, that by the words 'all probate and testamentary matters,' was meant all the duties of executors and administrators, and all matters arising out of the settlement of the estates of decedents. The common pleas was the only court, under the new form of government, that possessed original jurisdiction over the estates of intestates; and it could not have been the intention to leave the law of 1795 in force without a court to execute it. Again, it will be seen that the constitution provides (art. 3, sec. 5) that the common pleas shall have jurisdiction 'in such other cases as shall be prescribed by law.' Now by the statute of April 15, 1803, unlimited jurisdiction is given to the common pleas in all civil cases in law and equity, and all causes, suits and controversies of a probate or testamentary nature.' Ohio Laws, 40. And the 26th section of this act requires the supreme court and common pleas to take cognizance of all judgments, matters and causes whatsoever, pending in the territorial courts. For the sense in which the words 'courts of probate' were used, see the law abolishing territorial courts, 3 Ohio Laws, 188. The legislature has throughout used the words 'probate and testamentary' in a popular, and not in a restrained and technical sense.


2. If the common pleas had jurisdiction of the subject either as a court of general chancery powers; or a court of probate, did the orders granted, confer the right upon the administrators to sell this lot? The order of May term 1804 extends to all the real estate 'except the farm and improved lands and house and lots in Cincinnati.' It is asked if this exception includes the unimproved lots; the lot in dispute was unimproved and unproductive. But if this order did not extend to the lots, the order of 1805 did; whether it be considered as the order of May or August term. If it be a valid order of May term, it ends the controversy; and whether it can be so regarded or not, must depend upon the power of the court to grant it. We affirm the order was made at May term, and, by the mere misprision of the clerk, not recorded; to correct which, it was entered, nunc pro tunc, at August term. The exercise of this power rests in the sound discretion of the court, and is indispensable to prevent a failure of justice. Amendments are always allowed where the omission happens by the oversight or neglect of any of the ministers of justice, as an attorney, or clerk. 3 Johns. Rep. 443. 144. 519. 1 Bin. 368. 486.


The power to correct clerical misprisions, is incidental to every court of record. 1 Tidd's Prac. 438. 1 Durnf. & East, 638. 2 Tidd. 846.


Judgments are entered under powers after the death of the donor, (1 Salk. 87. 3 Salk. 116. 3 P. Williams, 399. 6 Durnf. & E. 368. 2 Strange, 882. 1081,) and also on verdicts of a prior term, Salk. 401. The same rule obtains in chancery, 4 Johns. Ch. Rep. 342. 9 Ves. 461. 92. If an execution be lost or destroyed, a second will be ordered, nunc pro tunc, 3 Johns. Rep. 443. In the case of Lawrence vs. Richards, 1 Jac. & Walker, 241, the chancellor, after the lapse of more than twenty years, ordered a decree filed nunc pro tunc. It may be said that this is a delicate power, and should be exercised with great circumspection. This is true: but when a court of competent jurisdiction has exercised it, and the validity of the act is drawn collaterally in question in some other court, that court will presume favourably—omnia esse rite acta, 2 Bin. Rep. 255.


Now, if this order can be considered as of May term, could the administrators sell under it, after the law of 1795 was repealed? For the argument, the law may be considered repealed before the sale. The order was granted upon the application of the administrators, ex parte, it is true, the law not requiring the heir to be notified; for the administrator is often the heir himself, or next of kin, or the particular friend of the heir, who is presumed to be careful of his rights. The order is a proceeding in rem; it condemned the real estate to be sold, and a sale made under it directs the title of the heir, and judgment liens.


This order confers more power upon the administrators than a judgment or decree can give to the sheriff; and in divesting liens, it is more efficacious than either. Why then shall it be regarded as less sacred? Acts done under an existing law, are not impugned by its repeal, 6 Bac. Ab. 392. 12 Co. 7. 3 Dall. 379.


It is not in the power of either the judiciary or legislature, to render nugatory an existing judgment. 7 Johns. Rep. 485.


If this order can be regarded in the light of a mere power, it would not affect the conclusion to be drawn. A power in a will to executors to sell real estate, to pay debts, is a power coupled with an interest, and survives. 2 Johns. Ch. Rep. 1. 19. 12 Johns. Rep. 537. 14 Johns. Rep. 527.


This Court, in 7 Wheat. 114, recognises as a lien the power of the administrator to sell real estate of intestates to pay debts, and limits its exercise within a reasonable time, which is to be fixed by analogy to the statute of limitations.


Again, if this order cannot be regarded upon either legal or equitable principles as of May term, it is urged, that as a decree of August term it authorised the sale, whether it did or not depend upon the power of the court to grant it at that time; and this proposition involves several nice and difficult considerations, upon which the counsel for the defendant in error will place much emphasis. He will contend that the court had no power to make the order, independent of the act of 1795, and that this act was repealed before it was made. He will rely, to maintain this postulate, upon the following statutes, viz. an act passed the 18th of February 1804, 'defining the duties of executors and administrators on wills and intestates' estates,' which took effect in May 1804, 2 Ohio Laws, 279; an 'act directing the manner of executing, proving, and recording wills and codicils;' an 'act directing the distribution of insolvents' estates;' and an 'act defining the duties of executors and administrators, on wills and intestates' estates, and providing for the appointment of guardians.' 3 Ohio Laws, 173. 182. 188.


These several acts, did they all conflict with the provisions of the act of 1795, are in terms prospective; they refer to future administrations, and define the duties of executors and administrators, in relation to the personal estate of those who may die after they take effect. Neither of them contains any provision incompatible with the act of 1795, but they stand in perfect harmony with it, at least so much of it as provides for the disposition of the lands and tenements of intestates.


The act of the 18th of February 1804, repeals 'all laws contrary to its provisions,' but contains no provision relative to lands. So far from being repugnant, it rather contemplates the life of the act of 1795, as necessary to give complete effect to its 6th section, which requires the administrator to account to the heir, after paying the debts. The act 'directing the manner of executing, &c. wills and codicils,' repeals 'all laws on that subject.' Sec. 6. The act 'defining the duties of executors, &c. on wills and intestates' estates,' repeals the law establishing the courts of probate, of June 1795; the act 'empowering the judges of probate to appoint guardians to minors,' and 'all other laws on the subject of this law.' Here the laws intended to be repealed are expressly designated, and the general clause was added, ex abundante cautela, to guard against collision. A subsequent act must be expressly repugnant to a former, or it does not operate as a repeal. 11 Co. 64. Again, the learned counsel will strenuously insist that the act of 1795, authorising administrators to sell the lands, &c. of decedents, was expressly repealed on the 1st of June 1805, by an act repealing certain laws, passed the 22d of February 1805.


This law purports to repeal all the laws adopted or passed by the governor and judges, prior to the first of September 1779, then in force. 3 Ohio L. 294. At the session this law was enacted, the legislature undertook a revision of the old statutes; not with a view of forming a new code of laws out of new materials, for the course of legislation shows no intention to change the general principles of the laws; but rather to preserve, arrange and classify them, with a view to perspicuity and certainty. It was believed, no doubt, that the committee of revision had fully and faithfully performed this onerous and responsible duty; and that all the elementary principles of the laws repealed, had been incorporated into the new code. Under these circumstances, on the last day of the session, to prevent confusion and repugnancy, the general repealing law was enacted. This is a question of legislative intention. In exploring this intention, in all cases of ambiguity, the judgment is submitted to the guidance of certain familiar rules of construction. We look back upon the old law, and trace its effects upon community, with an eye to its mischievous influence; and we consider well the remedy or policy of the law given in the enactment of the new law. Now, the liability of real estate in the hands of an administrator for the just debts of his intestate, is a sacred elementary principle to be found in all the codes of the different states of this union, introduced originally by an act of parliament. At an early period of their colonial history, it was a relaxation, in favour of the colonies, of that feudal sternness which characterises the common law in relation to landed property; and which, for reasons of state policy, has been scrupulously maintained in England; indeed, upon this principle and that of primogeniture, depends the stability of the peerage. In the United States, land has a less sacred character than in less free governments, and has ever been considered an article of trade; and it is the policy of our laws to discourage every thing calculated to fetter or embarrass titles, or to lock up estates in families; such as entailments, &c.


Upon the hypothesis that this law was repealed, what remedy was left for creditors against deceased debtors? They were remediless; chancery could afford none, and they had none at common law. 2 Saund. Rep. 7, note 4. Cruise Dig. title 1, sec. 63. title 32, sec. 12-16.


Now suppose the partial remedies of the common law existed after the organization of the state government; which is denied, because they are incompatible with the judgment and execution laws then in force, and in express violation of the act of February 11, 1805, for the distribution of insolvents' estates; still the simple contract creditors have no remedy, and the specialty creditors are left to scramble for priority; some one creditor, and often the least worthy, for such are apt to be most vigilant, monopolizes the whole.


Again, whether the legislature did intend to repeal the act of 1795 must be determined by considering as unique, all the laws in pari materia, whether repealed or not. 3 Mass. Rep. 21. 1 Kent's Com. 443. 6 Bac. 380. 383.


Applying these rules of exposition, it is submitted that not only, ab inconvenienti, but from necessity, in order to give effect to the act of the 11th of February 1805, which provides for an equal distribution among all the creditors, the Court will be constrained to say the act of 1795 was not intended to be repealed. This idea is also fortified by the act of the 15th of January 1805, 3 Ohio Laws, 163, for the 'appointment of guardians to lunatics' and others. It provides for the sale of their real estate 'in such manner as executors or administrators are by law enabled to discharge the debts of deceased persons.'


The plaintiff also relies upon the general understanding of the profession, that this law was not repealed. 5 Cranch, 32. 1 Dall. 131. 11. 13.


What was the effect of the saving clause in the repealing law; and whether the repeal of the law could operate on an administration pending?


1. Upon general principles, if the law were repealed, it was prospectively, and could not affect the duties of these administrators, nor their rights, nor the rights of creditors. The maxim is, nova constitutio futuris formam debet imponere, non proeteritis. Ludlow died on the 21st of June 1804, and administration was granted on his estate on the 2d of February following. The administrators had disbursed all the personal effects in their hands, and had filed a petition to sell the real estate, upon which a limited order had been granted; which proceedings were pending in fieri, before and at the time all the repealing statutes before named took effect.


By the laws in force when this administration was commenced, the real estate of intestates were assets, sub modo, in the hands of the administrators; and by the act directing the distribution of insolvents' estates, the creditors were prohibited from prosecuting their claims to judgment; by these laws, the rights of the administrators, creditors, distributors, and heirs in said estate were to be ascertained and finally settled; and by these laws the administrators had made a partial settlement. The rights of the creditors to look to the real estate (rights paramount to the heirs) as assets, had attached; had been recognized by the court; and the administrators had instituted the only suit known to the law to enforce them; the suit was ex parte, it is true, so are admiralty, bankrupt and insolvent proceedings from necessity; they all act under the supervision and direction of the court, at all times liable to be called to account or subject to be removed for omission or neglect of duty. The administrator brings no adversary into court, but must meet all who choose to come; his proceedings are in rem, and must be considered as entire and pending, until finished upon the basis they were begun. He had undertaken a trust and had entered into a contract and had given security for its faithful execution. By this contract, in reference to the laws in force at the time of its date, the duties of the administrator were fixed and the rights of the creditors and heirs were to be ascertained. 2 Serg. & Rawle, 8. 2 Binn. 299.


If this be not true, it would be easy to point out the confusion and injustice of a contrary doctrine. Some creditors have been paid, others have received part and others nothing. And the administrator may have paid debts out of his own pocket, as he had a right to do, looking to the real estate to be reimbursed, &c.


To show that the repeal of the law, even without a saving clause, could not affect an administration commenced and pending, the following authorities were cited. Dash vs. Van Kleek, 7 Johns. R. 485. 3 Dall. 397. 20 Johns. R. 212. 17 Johns. R. 203. 3 Johns. Ca. 75. 16 Johns. R. 252 7 Johns. R. 309. 1 Kent's Comm. 419. Vide also ordinances of congress of 1787, article 2, made perpetual by the act of 1802, section 5.


2. The repealing law however contains this saving clause, 'this act shall not be construed to affect in any manner any suit or prosecution pending and undetermined; but the same shall be carried on to final judgment, and execution, agreeably to the provisions of any of said laws under which they are commenced, and the practice of the courts.'


It is asked, what was the object of this saving clause, or rather what rights and interests was it intended to protect from the operation of repealing power. The rights and interests which the saving clause was to protect were all those various rights and interests upon which the laws repealed had acted or begun to act in a course of judicial proceeding; it is to affect not in any manner any suit or prosecution pending and undetermined, commenced under existing laws, or sanctioned by the practice of the courts.


Prosecution is a word still more comprehensive than suit, and which cannot be subjected to technical restraints. It is not a technical term, though sometimes vulgarly used to signify criminal proceedings. 3 Thomas's Coke, 348.


In addition, to show the sense in which the words suits, actions and prosecutions have been used by the legislature of Ohio, the Court will look at Land Laws, 323. 1 Ohio Laws, 8, 11. 2 Ohio Laws, 67. 3 Ohio Laws, 257, 284, 285, 294. From these it appears, that these words have been used to embrace all manner of judicial proceeding when transferring jurisdiction, upon passing from a territory to a state; in the organization of new counties and new courts.


It has been said that this petition of the administrators for the sale of the land, &c. was pending, and that a qualified order had been granted in 1804, and that the order of 1805 was supplementary. Now it is asked, whether this proceeding did not involve rights and interests as sacred, falling as completely within the mischiefs intended to be guarded against by the saving clause, as any adversary proceeding which can be imagined. In 2 Serg. & Rawle, 8, the court decides, that all the orders of sale are parts of the same proceeding, they rest upon the same foundation, and refer themselves back to the filing of the petition. It is therefore considered, that if the act of 1795 were repealed, it did not affect the administration.


It has been shown that the common pleas was a court of original and almost unlimited jurisdiction, and that the principle that lands should be assets in the hands of administrators for the payment of debts, a principle unknown to the common law, had been early introduced into the colonies, and perpetuated after the revolution by nearly all the states, and particularly by Pennsylvania, the powerful neighbour of Ohio; from whom were borrowed not only most of the principles of her organic law but nearly all her first statutes. Now if the point of jurisdiction is established, it is claimed that the order of 1805, which authorised the sale of the lot in question, is valid until reversed; it is res judicata, and cannot be impeached collaterally. It is not like the order of a judge of probate or any other judicial, whose powers are specified and limited. The principle which this argument maintains pervades all the cases. 'What judges of the matter have adjudged, is not traversable.' 1 Salk. 396. A contrary principle applies only to courts of special limited jurisdiction.


It was hoped that as the defendant in error had elected the federal judiciary to decide upon his rights, he would have been content to abide by its unbiassed decision; and that if those whom he has driven to battle were to fall, they would, at least, have the consolation which in legal warfare always arises from an unshaken confidence in the learning and integrity of the arbiter. It is known that it is the law of this forum, that in cases depending upon the laws of a state, this Court will adhere to the construction given by the superior court of the state, upon the universally recognized principle, that the judicial department of every government is not only competent to, but is the fit organ to expound its laws. But this rule, from the peculiar form of our governments, is subject to these limitations, namely, that if the exposition of the local laws by the local judiciary conflict with the constitution, the laws, or treaties of the United States, it is not binding upon this Court. To this rule, which is certainly correct, we yield unqualified approbation; but deny its application. What is the reason upon which it is founded? Why does this Court, possessing so many superior advantages, yield an entire submission to state adjudication? It is not from courtesy: but because natural justice requires it, since the local adjudication has become a rule of property which regulates and settles the rights of meum and tuum, a permanent land mark which it would be mischievous to remove. Vide 5 Cranch, 184. 10 Wheaton, 199. 7 Wheaton, 114. 5 Johns. Rep. 290. 9 Johns. Rep. 424. 6 Johns. Rep. 387.


Even if the statute of 1795 were repealed and had no saving clause, while the act requiring an equal distribution of insolvents' estates continued in force, the court had jurisdiction of the subject matter and could grant the order. And the order once granted could not be invalidated by showing, some twenty years afterwards, that the court erred in point of fact, that the estate was solvent: for whether Ludlow's estate was solvent or insolvent does not appear.


This case having been continued under advisement since the last term, we are now met with a decision of the supreme court of Ohio, which it is said decides the merits of this controversy and concludes this Court. What influence this ought to have upon the judgment of this Court as to the law of the case, will now be considered.


The decision in Ohio acts retrospectively and annuls past transactions, and not prospectively to regulate the future acquisition of property. It is the decision of the common pleas which settled the law, if competent to decide upon the subject matter, which is binding upon this Court until it is reversed. The questions involved in this case, can only be decided by the principles of the common law; even the question whether a statute is repealed or not, can only be determined by the rules of construction which it prescribes. If the supreme court had decided against the jurisdiction of the common pleas to grant the orders, perhaps it would have been conclusive upon this Court; but it sustains the jurisdiction. The order of 1805 is claimed to be an order of May term before the law was repealed, entered, nunc pro tunc, at August term; and if not valid as an order of May, it is good as a supplemental order of August, and relates back to the petition; but the supreme court has decided, collaterally, that it was an act coram non judice. All these are questions which depend upon general principles, and not upon the exposition of local laws, and we think we have a right to ask the unbiassed decision of this Court upon them.


This Court will never follow the law as decided by the local tribunals, unless it be settled by a series of decisions, and is acquiesced in by the profession. But it is in this case asked to yield implicit obedience to an isolated case, in the decision of which the court was divided; a decision too, as it is solemnly believed, fraught with the most pernicious and ruinous consequences; and which, unless the learning and justice of the profession are greatly mistaken, will never meet its approbation.


The counsel for the plaintiff then proceeded to discuss the question of the constitutionality of the occupying claimant law. The arguments upon this point for the plaintiff and the defendant, are stated in the opinion of the Court.


Mr Garrard, for the defendants, after stating the case, the laws of the territory of Ohio, and the acts of the legislature of that state, which had been referred to by the counsel for the plaintiff in error, proceeded to say:


In construing the act of 1803 it should be borne in mind, that the court of common pleas, created by it, is a limited and circumscribed tribunal in its jurisdiction; and that upon the law of 1803 it depends entirely for its existence. If it is a court of limited and not general jurisdiction, the distinction between them is at once destroyed, if the exercise of general powers shall be deemed consistent with its limited character.


The distinction between courts of limited and general jurisdiction should not be abolished. Obligatory effect should not alike be given to acts of a court of limited jurisdiction, when they are done within their real, or by assumed powers. If a court of limited and circumscribed jurisdiction can legitimately exercise general powers, no good reason can be given why the court of common pleas should not be sustained in assuming the peculiar powers and jurisdiction of this Court. If an assumed power is valid for one purpose and for one occasion, it is valid for all and every purpose. There is no rule construction, by which the limited and circumscribed jurisdiction of the court of common pleas, can be made so broad and reaching in its character, as to embrace the orders of 1804 and 1805. The rule of construction applicable to this case is well settled, and has never been deviated from: it is, that the organic law of the court is the charter of its powers, and that it has no powers beyond that charter, except such as are necessarily incident to it, to carry into effect its orders, judgments, and decrees. Such was the rule of construction under which the court of probate and orphans' court acted, who possessed the same power with the court of common pleas, under their respective organic laws. The power to order the sale of an intestate's real estate, by his administrators, was exercised by the orphans' court only in virtue of the act of 1795. That act does not extend to the court of common pleas, but is confined in its terms. The law of 1803 does not extend that power to them by any express grant; nor can it be implied by any reasonable interpretation of that act. The power therefore did not exist, and the orders are consequently 'coram non judice.'


Should the jurisdiction of the court of common pleas be sustained, it will then be contended that the act of 1795 was repealed prior to the granting of either of the orders in evidence.


1. The act of 1795 was repealed by the act of the 18th of February 1804, which took effect the 1st day of May 1804, entitled an act 'defining the duties of executors and administrators on wills and intestates' estates.' This act strictly confines the duties and powers of executors and administrators to the personal estate of the deceased,—it directs how letters of administration shall be granted,—what powers they shall confer,—how administrators shall proceed,—how they shall be called to account; and it repeals 'all laws and parts of laws contrary to the provisions of this act.' The intention of this law was to point out and define the whole duties and power to be exercised by executors and administrators in future, and it restricts them to the personalties of the deceased; a power to sell the real estate does not seem to be contemplated by this statute in any of its provisions, either by a direct grant or by reference to former and existing laws, giving such power; but it repeals all laws and parts of laws contrary to the provisions of this law. A power in the administrator to sell the land and pass the title of an intestate's real estate is certainly inconsistent with and contrary to the provisions of a law, that undertakes to prescribe the whole duties and powers of executors and administrators, and limits their management to the personal estate. And whilst this spirit continued to direct the minds of the first legislatures of the state, it is a reasonable and legitimate presumption to say that whenever they undertook to legislate upon any particular subject, they made all regulations and provisions required by the exigences of the country. That they intended by this act to define the whole duties and powers of executors and administrators, and limit them to those prescribed by this statute itself, which repeals all laws and parts of laws contrary to its provisions.


2. It was repealed by the act of 1805, entitled 'an act defining the duties of executors and administrators on wills and intestates' estates, and providing for the appointment of guardians.' This act was passed in connexion with two other laws relative to the same matter,—one directing the manner of executing, proving and recording wills and codicils; and the other directing the distribution of insolvents' estates. All of these laws restrict the duties of executors and administrators, and the powers of the courts to the personalties of the deceased; and each of them contains a repealing clause, and the first, all laws upon the same subject. If the law of 1795 was then in force it was certainly repealed; as it was upon the same subject with this act. By a reference to the statute book of this year it will be seen that the legislature of 1804-5 took upon themselves in an especial manner the character and duties of revisors of the laws then in force; and they adopted a system which underwent little or no change till 1808. They passed a general repealing law which will be noticed hereafter. They passed a general law regulating judgments and executions, incorporating in it provisions entirely new, and repealed all other laws upon that subject. That the three laws above mentioned were treated and considered as the only laws in force from their passage till 1808, is evidenced by the fact that the law of the 18th of February 1808, which incorporates the provisions of these three laws into one, repeals these laws by a special reference to them as the only laws then in force upon the subject. Land Laws, 459.


3. The act of 1795 was repealed by the act of the 22d of February 1805, entitled 'an act repealing certain laws.' Land Laws, 473. The first section repeals all the laws adopted by the governor and judges prior to the 1st of September 1799. The act for the settlement of intestates' estates, having been adopted prior to that period, was certainly repealed by this act; and all proceedings by administrators subsequent to the 1st of June 1805, which assumed the act of 1795 as their basis, were null and void, unless they were such as came within the meaning of the saving clause of the second section.


The second section provides, 'that nothing in this act contained, shall be so construed as to affect in any manner, and suit or prosecution now depending and undetermined, but the same shall be carried on to final judgment and execution, agreeably to the provisions of any of said laws under which the suit or prosecution may have been commenced, and the practice of the courts.' It was contended by the defendant's counsel, that the clause not only saved the unexecuted power derived under the order of 1804, but that it saved a power in the court of common pleas to go on and make additional and supplemental orders ad infinitum, by relation to the first. The support these propositions, it was maintained that such was the intention of the statute by a fair construction of the terms used;—and secondly, that the legislature had not the constitutional power, under the circumstances of the case, either to annul the order of May 1804, although no rights had been acquired by a sale under it, or to repeal the act of 1795 so as to prevent the court from making new and additional orders.


In determining the correctness of the first position, as to the meaning of the saving clause, we must look to the language of the statute. The repeal is not to affect in any manner any 'suit or prosecution.' The definition is thus given of the term suit 'the lawful demand of one's right,' or, in the words of Justinian, 'jus prosequendi in judicio quo alicui debetur.' 3 Blackstone's Commentaries, 116. If a 'suit' means the lawful demand of one's right, there necessarily must be some one to make the demand, and some one of whom the demand is made, through the medium of a court, and these parties receive the names of plaintiff and defendant. The one complains of the violation of his rights, either growing out of contract or torts committed; the other, defending himself against the injury complained of, either denies the contract or tort, or shows that the one has been satisfied, or the other justified. See also, 6 Wheat. 407. 6.


The term prosecution, both technically and in common parlance, when applied to the proceedings of a court, relates exclusively to criminals, or to suits upon penal statutes. If a murder is committed, the perpetrator is prosecuted by the state. So with perjury, rape, arson, and the various degrees of felony the state is plaintiff, complaining of wrongs and violations of her statutes. There are also various statutes attaching penalties in money for the performance or nonperformance of certain acts when the one is done or the other neglected, prosecutions are commenced in the name of the state for the amount of the penalty.


But the terms 'suit and prosecution' are fully explained (if they needed any explanation) by the subsequent part of the saving clause. It provides that the 'suit or prosecution' depending and undetermined, shall be carried on to final 'judgment and execution.' It is wholly immaterial whether the term 'suit or prosecution' is attempted to be applied to the order of 1804, or the subsequent petition and order of August term 1805. If it is said that the unexecuted order of 1804, is saved by the term 'suit or prosecution,' it may be asked, who is the plaintiff in the order? To what tribunal was the appeal made? And against whom was the complaint made? What judgment was the order to be 'carried on to?' Against whom and for whose benefit was the judgment to be entered? These queries unquestionably show that the terms 'suit or prosecution' cannot be applied to the order of 1804, or to the subsequent petition and order of 1805. But the 'suit or prosecution' is to be carried on not only to 'final judgment,' but also to 'execution.' The term 'execution' is certainly used here in the technical sense of word, as applied to the final process of the court, in the hands of its executive officer, to carry into effect its orders, judgment; and decrees. An execution is defined to be the 'putting the sentence of the law in force. This is performed in different manners, according to the nature of the action upon which it is founded, and of the judgment which is had or recovered.' 3 Blackstone, 412, title Execution, chap. 26.


Neither the order of 1804, or the subsequent petition and order of August 1805, can, by any reasonable interpretation of language, be construed into a 'suit or prosecution:'—neither was 'pending and undertermined' at the time the repealing law took effect;—neither of them was a proceeding of a character upon which a judgment could be entered or an execution issued; they are, therefore, clearly without the saving clause of the general repealing law of 1805.


But to this it is replied, that the legislature had not the constitutional power to repeal the law of 1795, so as to affect either the order of 1804, or the subsequent order of 1805. It is said that by the laws in force at the 'death of Ludlow, and when administration was granted, the real estate of an intestate was assets in the hands of his administrators; and that by these laws the rights of the administrators, creditors, distributees and heirs in the estate should be ascertained and settled. That the rights of the creditors to look to the real estate in the hands of the administrators as assets, had attached—that their rights had been recognized by the court, and the administrators had instituted the only suit known to the law to enforce them.'


If these orders and proceedings were withdrawn from the scope of constitutional legislation, and the law of 1795 rendered perpetual, it was in virtue of the constitution and the ordinance of congress.


What are the facts relative to the order of 1804, and what rights had been acquired under it at the date of the repeal of the act of 1795, that were shielded by the constitution and ordinance? It is in evidence, that at the May term 1804, of the court of common pleas, the administrators of Ludlow applied for and obtained an order to sell a portion of the estate of said Ludlow. No sale, however, was made of any portion of his real estate till August and September 1805, in the county of Hamilton. None had ever been offered under that order at public sale; no purchase had been made, no contract had been entered into, that was within the power conferred by the order. The order remained a naked authority or power to sell; it was unexecuted either in whole or in part; it was dependent upon the statute for its validity, and when that was repealed, the order fell with it. The rights of the creditors were in no better or worse condition by the repeal of the law; they remained as they did at the death of Ludlow, susceptible of having the lands charged with them in case of a deficiency of the personal estate. If in fact the court of common pleas had jurisdiction under the act of 1795, and it was in force at the date of the order of 1804, and in virtue of that order the administrators had proceeded to sell at public sale the real estate of Ludlow, prior to the repeal, but had not finally executed the title papers; it would be a fair and legitimate construction of the repealing law, to say that the rights of the purchasers thus acquired, would be saved by the reservation of the repealing law, and the administrators would, under those circumstances, have been authorized to proceed and complete the title to the purchasers.


The order of 1804, and the rights of the creditors under it, were, at the time of the repeal, as legitimate subjects of legislation, as the execution laws of the state are, which have undergone various changes and modifications without reference to the contracts of individuals. Cited M'Cormac vs. Alexander, 2 Ohio Rep. 76.


What were, in fact, that rights of the creditors of Ludlow at his death? They consisted of debts due from him as evidenced by open account, or by bonds or notes of hand. Now these are the rights which, it is said, were so incorporated with, and mixed up with the laws existing at his death, that the repeal of those laws impaired the obligation of his contracts.


These rights, in their amount and their character, were ascertained and fixed by the contracts of the parties. The right to demand, and the obligation to pay, are the consequences of contract. The repeal of the act of 1795 neither takes away the right to demand, nor diminishes nor discharges the obligation to pay. The amount and quality of the rights of his creditors were left by the repealing law exactly as they were fixed by the parties; and the obligation to pay, and the liability of his estate to answer the demand of his creditors, are as valid and perfect as they were prior to the repeal. The law does not assume that the debts due shall, from its passage, be considered paid, and the estate discharged;—it does not purport to absolve the estate from the contracts of Ludlow, in any other manner than by the payment of the uttermost farthing. If it lessened the rights of the creditor, and impaired the obligation of the debtor, it would not only fill the spirit, but the letter of the inhibiting clause.


Whatever power the order may have conferred on the administrators, or whatever rights the creditors may have had, to have their debts collected through that particular mode of enforcing their collection, they were all alike derived through, and dependent upon, the legislation of the country;—and it is held to be consistent with sound principles and the decisions of this Court to say, that so long as the order remained unexecuted, neither purchaser nor creditor had such vested rights under it, as were drawn out of the scope of legitimate legislation. If the order itself, or the supposed vested rights of the creditors to have that order executed, were the result of the contracts of the parties, and not the effect of the operations of a law, which in no manner entered into or became a part of their contracts, they might with some propriety be said to be embraced within the constitution.


All the arguments of the defendant's counsel, whatever form they may have assumed, have been refuted by the very learned and unanswerable opinion of the chief justice of the United States in the case of Ogden vs. Saunders, 12 Wheaton's Reports, 332 to 357. He seems to have established incontrovertibly the converse of the proposition, contended for by the defendants in this case. He has shown that the right to contract is not conferred by society, but is a natural original right, brought by each individual into society; and that the obligation of contracts is not the result of positive law, but is intrinsic, and is conferred by the act of the parties. The right to coerce the performance of a contract, although as much a natural right as the right to contract; yet it is surrendered by every individual when he comes into a government of laws, and this surrender imposes the duty on the government to furnish adequate remedies. The defendant's counsel assume that the right to regulate the remedy, and to modify the obligation of a contract, are the same—that the obligation and the remedy are identical—that they are synonymous—two words conveying the same meaning. The answer to this shape of the argument, is plain and simple. The obligation of a contract is coeval with the contract itself—it originates with the contract, and exists with it anterior to the time of performance. The remedy operates upon a broken contract, and its office is to enforce a pre-existing obligation. Obligation and remedy, or right and remedy, are therefore not identical—they originate at different times, and are derived from different sources—the one flows from the act of the parties—the other is furnished by the government.


The counsel themselves shrink from the conclusions to which their doctrines must inevitably lead, and attempt to show that such would not be their consequences; but they can not be disguised. If the rights of the creditors of Ludlow to have their debts collected under the remedial laws in force at the date of their contracts or at his death, were such as were withdrawn from subsequent legislation, by that clause of the constitution, inhibiting 'the passage of any law impairing the obligation of contracts,' and a sale could legally be made one day after the repealing law took effect; the same principle can be extended to all cases without regard to time or circumstances. The act of 1795 would be made perpetual in the settlement of an estate. The order of 1804 would be a springing use, or power in the administrators. which they could go on to execute at their pleasure, regardless of the subsequent alterations and modifications of the laws regulating the passage of lands from one to another. The power to modify the remedial law, necessarily includes the power to repeal it; and this doctrine equally excludes both.


Upon the subject of this repealing law of February 22d, 1805, another argument has been pressed into the service, of a very singular character. However out of place it is considered, still it has been urged so often, so seriously, and by so many different gentlemen, that it ought not to be passed in silence.


In the session of 1804 and 1805, (Vol. III. 164,) the same legislature that enacted the repealing law, also enacted a statute providing for the appointment of guardians to lunatics and others. This latter statute passed January 15, 1805, and the 2d section contains a provision similar to that of the law, on the same subject, of 1792, with a variation of phraseology, using the word 'are,' instead of 'may or shall.' 'Out of the real estate, in such manner as executors and administrators are by law enabled to discharge the debts of deceased persons,' &c. It is urged that all the acts of the same session should be taken and considered together as one statute. And that, upon this construction, the clause here quoted, is to be considered as a declaration that no repeal of the law of 1795 was intended.


The answer already given, to the attempt to create or set up a law, by indirect legislation of this nature, applies with equal force here. But in this place the argument is destroyed by other considerations. The last enactment of the same session controls the first, if they are in terms contradictory or inconsistent. If, in January, the law of 1795 was supposed to be in force, and if the reference to it may be regarded as a legislative declaration of an intention to continue it; the subsequent enactment of February expressly repealing it, must nevertheless have operative effect. And, adopting the principle of construction insisted upon by the other side, this consequence follows: the reference in the act of January to the existing law, adopts or revives it for the special purpose declared; but cannot, contrary to the repealing act, continue it in force for any other purpose.


There remains one point more to be disposed of, in relation to the order of 1805. It is not denied that the order of May 1804 excludes from its operations the lot now in dispute, and that the defendants are thrown entirely upon the order of August term 1805, to make out their defence. As an order of August term 1805, it is liable to all the objections made to the order of 1804, with this additional and unanswerable one, that it was applied for and obtained, after the repealing act took effect. It is attempted, however, to obviate this objection, by showing that the order was really applied for and granted at May term 1805, prior to the taking effect of the repealing law; but that it was, through the negligence of the clerk, not entered till the subsequent term, 'nunc pro tunc.'


If this order can be sustained for any beneficial purpose, in this controversy, as an order of May term 1805, it must be upon the principle that a court of record is not bound to keep a record, but that its proceedings are matters which can be sustained and preserved in the minds of its officers. In this instance, it is an order of May term, only by the testimony of one of the judges, who then composed the court.


Admit, for the sake of argument, that the court of common pleas had the power to make the order at the May term, yet that power had ceased before the August term, by force of the repealing law, and it was as competent for them to grant a new order upon an original application, as it was to enter this one 'nunc pro tunc.'


But suppose the law of 1795 had not been repealed, and the jurisdiction of the court should be admitted, still it is contended, that upon well settled principles, heretofore recognised by this Court, the order could only be regarded as the judicial act of the court, from the time it actually became a matter of record; and the fact that the court attempted to give it an operative character, prior to its having been entered of record, by ordering it to be entered 'nunc pro tunc,' gives it no additional validity. If, indeed, the order had been regularly applied for, and the records of the court furnished evidence of that fact, and the order had been granted, but neglected to be entered by the clerk, and previous to the next term the administrators had gone on to sell, under the belief that the officers of the court had done their duty, and purchasers had paid their money upon the faith of the validity of the proceeding; it is not doubted, that at a subsequent term, it could be entered and held valid.


The records themselves would furnish evidence of the proceedings in part, and the remainder might be substituted:—but its validity, as the order of a previous term, could only be supported upon the principle, that rights had been acquired in good faith, under a due execution of the power intended to be conferred by the order. It would be to protect and make good that which had already been done in good faith, and under the supposition that the proceedings of the court were spread upon its records; but it cannot be made the order of May term, merely to give colour to the power of the court, and to support proceedings which took place subsequent to August 1805.


Mr Chief Justice MARSHALL delivered the opinion of the Court.


This cause was fully argued at the last term on the validity of the deed made by the administrators; and several acts, which were supposed to illustrate that question to which it is unnecessary now to refer, were cited and relied on. As it was a question of great interest, on which many titles depended, which was to be decided entirely by the statutes of Ohio; and as the Court was informed that the very case was depending before the highest tribunal of the state, the case was held under advisement. The cause depending before the state court, which was an ejectment for other land sold by the same administrators under the same orders of the court of common pleas, has been since decided, and the supreme court of the state has determined:


1. That there was no law in the territory prior to the act of 1795, authorizing administrators to sell the lands and tenements of an intestate.


2. That this law was repealed, and ceased to have effect from and after the 1st day of June 1805.


3. That the order of the court of common pleas of May term 1804, directing the administrators of Israel Ludlow to sell a part of the real estate of said Ludlow for the payment of his debts, did not embrace the premises in question.


4. That the parol testimony offered in evidence to prove an order of sale at the May term 1805, was incompetent.


5. That the order of the said court at the August term 1805, was coram non judice and void; and that the lessors of the plaintiffs could not be divested of their title, in consequence of any act done in pursuance of that order.


At this term the cause has been again argued, and the counsel for the plaintiffs in error have made several points which they suppose to be still open.


They contend, that the repeated declaration of this Court, that it will conform to the construction of the statutes of a state made by its own tribunals, does not apply to the decision respecting the order made in August 1805. They insist that the power of the court to make this entry as of the May term preceding, depends upon the common law, not on the statutes of Ohio, and that the question is still open for discussion.


Supposing it to be open, they maintain that the omission to enter the order in May, when it was made, was a clerical misprision, which the court might correct in August, and enter the order as of May term. It has, they contend, the the same effect as if it had been actually entered in May; and, allowing this, the subsequent repeal of the law before the sale was made, could not affect the power to sell which was given by the order, and therefore the sale is valid.


To sustain this argument, all the propositions on which it rests must be true. The decision of the state tribunal must be of a character which this Court will consider, undoubtedly, with great respect, but not as conclusive authority. The court of common pleas must have had the power in August, after the repeal of the law under which the order was made, to enter it as of May, and the administrators must have had the power to sell in virtue of the order, after the law by authority of which it was made, had been repealed. If the plaintiffs in error have failed in sustaining any one of these propositions, the conclusion which has been drawn from them is not supported.


The judges are not united in opinion on these several propositions, but concur in thinking that the conclusion drawn from the whole of them is not sustained. The power of the inferior courts of a state, to make an order at one term, as of another, is of a character so peculiarly local, a proceeding so necessarily dependent on the judgment of the revising tribunal of the state, that a majority considers that judgment as authority, and we are all disposed to conform to it.


But, were this question entirely open, the considerations which appear to have influenced the judgment of the supreme court of Ohio, are certainly entitled to great weight. That a court of record, whose proceedings can be proved by the record alone, should, at a subsequent term, determine that an order was made at a previous term, of which no trace could be found on its records, and that too after the repeal of the law which gave authority to make such an order; is a proceeding of so much delicacy and danger, which is liable to so much abuse; that some of us question the existence of the power.


In the case, as depending before this Court, there is still a stronger objection to the validity of the order of August 1805. Its language does not import that the administrators had applied to the court at the preceding May term, for an extension of the order of May 1804, and that the court had granted their application, and made the order, which the clerk had omitted to enter, and that therefore the order is now made, with a direction that it should be entered as of May. This is not its language. It makes no allusion to any proceeding in May. It purports to have been made on an original application by the administrators, in August, for an extension of the order of May 1804. On this original application, the court allows the administrators to sell the house and lots in Cincinnati, and adds, 'this entry to be considered as of May term 1805.' The entry, on its face, does not import to be the correction of the record, by placing on it an order which had in fact been made in the preceding May, and which the clerk had omitted to enter; but to be an original proceeding in August, to which the court by its own authority gives a retrospective operation. If any explanatory testimony could have been received in the circuit court, none was offered. That court was required to infer from the words, 'this entry to be considered as of May term 1805,' that it was in fact made at that term, and that the clerk had totally omitted it. The certainty which is necessary in judicial records, and the principle that they prove themselves, forbade the court to draw this inference. The law being then repealed, the order was certainly, coram non judice.


It is also the opinion of one of the judges, that had the order even been made in May term, the repeal of the law before the sale, terminated the power to sell.


The counsel for the plaintiffs in error have also contended, that the interest of the administrators in the real estate, as trustees for the creditors, was a vested interest, which the repeal of the law could not divest; and that they might proceed to sell under the sanction of an order made even after the law was repealed.


This is a point on which we cannot doubt. The lands of an intestate descend not to the administrators, but to the heir. They vest in him, liable, it is true, to the debts of his ancestor, and subject to be sold for those debts. The administrator has no estate in the land, but a power to sell under the authority of the court of common pleas. This is not an independent power, to be exercised at discretion, when the exigency in his opinion may require it; but is conferred by the court in a state of things prescribed by the law. The order of the court is a pre-requisite, indispensable to the very existence of the power; and if the law which authorised the court to make the order be repealed, the power to sell can never come into existence. The repeal of such a law divests no vested estate, but is the exercise of a legislative power which every legislature possesses. The mode of subjecting the property of a debtor to the demands of a creditor, must always depend on the wisdom of the legislature.


It is also contended that the jurisdiction of the court of common pleas, in testamentary matters, is established by the constitution, and that the exclusive power of the state courts to construe legislative acts does not extend to the paramount law, so as to enable them to give efficacy to an act which is contrary to the constitution.


We cannot admit this distinction. The judicial department of every government is the rightful expositof or its laws; and emphatically of its supreme law. If in a case depending before any court, a legislative act shall conflict with the constitution, it is admitted that the court must exercise its judgment on both, and that the constitution must control the act. The court must determine whether a repugnancy does or does not exist; and in making this determination, must construe both instruments. That its construction of the one is authority, while its construction of the other is to be disregarded, is a proposition for which this Court can perceive no reason.


But, had the question never been decided in Ohio, this Court can perceive no sufficient ground for declaring, that the legislature of the state might not repeal the law by which the court of common pleas was authorized to direct, in a summary way, the sale of the lands of an intestate. 'Jurisdiction of all probate and testamentary matters,' may be completely exercised, without possessing the power to order the sale of the lands of an intestate. Such jurisdiction does not appear to us to be identical with that power, or to comprehend it. The constitution did not mean and could not mean, to deprive the legislature of the power of exercising its wisdom on a subject so vitally interesting to the people; nor do its words convey such an intent. Were it even true, which we cannot admit, that the constitution established the jurisdiction of the court of common pleas in the case, still the legislature might prescribe the rule by which that jurisdiction should be exercised.


We are satisfied that there was no error in the instruction given by the circuit court to the jury.


The plaintiffs in error contend that the court erred in overruling the motion to appoint commissioners to value the improvements in pursuance of the occupant law of Ohio; and in rendering judgment without conforming to that law. The first section of the act provides that 'an occupying claimant,' circumstanced as was the plaintiff in error, 'shall not be evicted or turned out of possession, until he or she shall be fully paid the value of all lasting and valuable improvements made by such occupying claimant,' 'previous to receiving actual notice by the commencement of suit;' &c. 'unless such occupying claimant shall refuse to pay the person so setting up and proving an adverse and better title, the value of the land without the improvements made thereon,' &c.


The 2d section proceeds to direct the court to appoint commissioners to make the valuation, which had been prescribed by the preceding section.


The counsel for the defendant in error insists that this law is repugnant to the 10th section of the first article of the constitution of the United States; and to the ordinance of 1787 for the government of the north western territory.


This Court does not think that these questions properly arise in the present actual state of this controversy. The 7th amendment to the constitution of the United States declares that 'in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.' This is a suit at common law, and the value in controversy exceeds twenty dollars. The controversy is not confined to the question of title. The compensation for improvements is an important part of it, and if that is to be determined at common law, it must be submitted to a jury.


It has been said that the occupant law of Ohio, must, in conformity with the 34th section of the judicial act, be regarded as a rule of decision in the courts of the United States.


The laws of the states, and the occupant law, like others, would be so regarded independent of that special enactment; but the exception contained in that section must be regarded likewise. The law, so far as it consists with the constitution of the United States and of the states of Ohio, is a rule of property, and of course a rule of decision in the courts of the United States; but that rule must be applied consistently with their constitution.


Admitting that the legislature of Ohio can give an occupant claimant a right to the value of his improvements, and can authorize him to retain possession of the land he has improved, until he shall have received that value; and assuming that they may also annex conditions to the change of possession, which, so far as they are constitutional, must be respected in all courts; still that legislature cannot change radically the mode of proceeding prescribed for the courts of the United States; or direct those courts, in a trial at common law, to appoint commissioners for the decision of questions which a court of common law must submit to a jury.


But this inability of the courts of the United States to proceed in the mode prescribed by the statute, does not deprive the occupant of the benefit it intended him. The modes of proceeding which belong to courts of chancery are adapted to the execution of the law; and to the equity side of the court he may apply for relief. Sitting in chancery, it can appoint commissioners to estimate improvements as well as rents and profits, and can enjoin the execution of the judgment at law until its decree shall be complied with. If any part of the act be unconstitutional, the provisions of that part may be disregarded while full effect will be given to such as are not repugnant to the constitution of the United States or of the state or to the ordinance of 1787. The question whether any of its provisions be of this description, will properly arise in the suit brought to carry them into effect.


We think there is no error in the judgment, and it is affirmed with costs.


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