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 re-imbursed, etc.

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 v. 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 Com. 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 sav506*] ing 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and interests which the saving clause were to protect were all those various rights and interests upon which the laws repealed had acted or begun to act in a course of judicial proceeding; it is to affect not in any manner any suit or prosecution pending and undetermined, commenced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.

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 them. selves 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 [*507 powerful neighbor 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 authorized 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 unbiased 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 Prosecution is a word still more comprehen- the fit organ to expound its laws. But this sive than suit, and which cannot be subjected rule, from the peculiar form of our governto technical restraints. It is not a technical ments, is subject to these limitations, namely, term, though sometimes vulgarly used to sig- that if the exposition of the local laws by the nify criminal proceedings. 3 Thomas's Coke, 348. local judiciary conflict with the Constitution, In addition, to show the sense in which the the laws, or treaties of the United States, it words "suits, actions and prosecutions" have is not binding upon this court. To this rule, been used by the Legislature of Ohio, the court which is certainly correct, we yield unqualiwill look at Land Laws, 323. 1 Ohio Laws, 8, fied approbation; but deny its application. 11; 2 Ohio Laws, 67; 3 Ohio Laws, 257, 284, 285, What is the reason upon which it is founded? 294. From these it appears, that these words Why does this court, possessing so many suhave been used to embrace all manner of judi-perior advantages, yield an entire submission cial proceeding when transferring jurisdiction, to State adjudication? It is not from courtesy, upon passing from a territory to a State; in the organization of the new counties and new courts.

It has been said that this petition of the administrators for the sale of the land, etc., 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

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 landmark which it would be mischievous to remove. Vide 5 Cranch, 184; 10 Wheaton, *199; 7 Wheaton, 114; 5 Johns. Rep. [*508 290; 9 Johns. Rep. 424; 6 Johns. Rep. 387.

Even if the statute of 1795 were repealed, ence. If it is a court of limited and not generand had no saving clause, while the act requiral jurisdiction, the distinction between them is ing an equal distribution of insolvents' estates at once destroyed, if the exercise of general continued in force, the court had jurisdiction powers shall be deemed consistent with its limof the subject-matter and could grant the ited character. 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.

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 This case having been continued under ad-jurisdiction can legitimately exercise general visement since the last term, we are now met powers, no good reason can be given why the with a decision of the Supreme Court of Ohio, Court of Common Pleas should not be sustained which, it is said, decides the merits of this con- in assuming the peculiar powers and jurisdictroversy and concludes this court. What in- tion of this court. If an assumed power is fluence this ought to have upon the judgment valid for one purpose and for one occasion, it of this court as to the law of the case, will now is valid for all and every purpose. There is no be considered. rule of 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 [*510 settled, and has never been deviated from it; 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 ministrators, was exercised by the 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."

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 unbiased decision of this court upon them.

This court will never follow the law as decided by the local tribunals, unless it be settled 509*] 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 exist

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 [*511 parts of laws contrary to the provisions of this

law.

A power in the administrator to sell | same shall be carried on to final judgment and the land and pass the title of an intestate's execution, agreeably to the provisions of any real estate is certainly inconsistent with, and of said laws under which the suit or prosecucontrary to, the provisions of a law, that un- tion may have been commenced, and the pracdertakes to prescribe the whole duties and tice of the courts." It was contended by the powers of executors and administrators, and defendant's counsel, that the clause not only limits their management to the personal estate. saved the unexecuted power derived under the And whilst this spirit continued to direct the order of 1804, but that it saved a power in the minds of the first legislatures of the State, it is Court of Common Pleas to go on and make a reasonable and legitimate presumption to say additional and supplemental orders ad infinithat whenever they undertook to legislate upon tum, by relation to the first. To support these any particular subject, they made all regula-propositions, it was maintained that such was tions 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.

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 2. It was repealed by the Act of 1805, en- court from making new and additional orders. titled "An Act defining the duties of executors In determining the correctness of the first and administrators on wills and intestates' es- position, as to the meaning of the saving clause, tates, and providing for the appointment of we must look to the language of the statute. guardians." This Act was passed in connection The repeal is not to affect in any manner any with two other laws relative to the same mat- "suit or prosecution." The definition is thus ter-one directing the manner of executing, given of the term suit, "the lawful demand of proving and recording wills and codicils; and one's right," *or in the words of Jus- [*513 the other directing the distribution of insolvents' tinian, "jus prosequendi in judicio quo alicui estates. All of these laws restrict the duties debetur." 3 Blackstone's Commentaries, 116. of executors and administrators, and the pow- If a "suit" means the lawful demand of one's ers of the courts to the personalties of the de- right, there necessarily must be some one to ceased; and each of them contains a repealing make the demand, and some one of whom the clause, and the first all laws upon the same demand is made, through the medium of a subject. If the law of 1795 was then in force, court, and these parties receive the names of it was certainly repealed; as it was upon the plaintiff and defendant. The one complains of same subject with this Act. By a reference to the violation of his rights, either growing out the statute book of this year it will be seen of contract or torts committed; the other, dethat the Legislature of 1804-5 took upon them-fending himself against the injury complained selves, 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 512*]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.

of, either denies the contract or tort, or shows that the one has been satisfied, or the other jus tified. See, also, 6 Wheat. 407, 406.

If a

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. 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 non-performance 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.

3. The Act of 1795 was repealed by the Act of the 22d of February, 1805, entitled, "An Act But the terms "suit and prosecution" are repealing certain laws." Land Laws, 473. fully explained (if they needed any explanaThe first section repeals all the laws adopted by tion) by the subsequent part of the saving the Governor and judges prior to the 1st of clause. It provides that the "suit or prosecuSeptember, 1799. The Act for the settlement tion" depending and undetermined, shall be of intestates' estates, having been adopted carried on to final "judgment and execution." prior to that period, was certainly repealed by It is wholly immaterial whether the term "suit this Act; and all proceedings by administra-or prosecution" is attempted to be applied to tors 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, any suit or prosecution now depending and undetermined, but the

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 of the personal estate. If the fact the Court of that the terms "suit or prosecution" cannot be Common Pleas had jurisdiction under the Act applied to the order of 1804, or to the subse- of 1795, and it was in force at the date of the quent petition and order of 1805. But the order of 1804, and in virtue of that order the "suit or prosecution" is to be carried on, not administrators had proceeded to sell at public 514*] *only to "final judgment," but also to sale the real estate of Ludlow, prior to the re"execution." The term "execution" is certainly peal, but had not finally executed the title paused here in the technical sense of the word, as pers, it would be a fair and legitimate conapplied to the final process of the court, in the struction of the repealing law, to say that the hands of its executive officer, to carry into rights of the purchasers thus acquired would effect its orders, judgment, and decrees. An be saved by the reservation of the repealing execution is defined to be the "putting the sen- law, and the administrators would, under those tence of the law in force. This is performed in circumstances, have been authorized to proceed different manners, according to the nature of and complete the title to the purchasers. the action upon which it is founded, and of The order of 1804, and the rights of the the judgment which is had or recovered." | creditors under it, were, at the time of the re3 Blackstone, 412, title Execution, chap. 26. peal, as legitimate subjects of legislation, as Neither the order of 1804, nor the subsequent the execution laws of the State are, which have petition and order of August, 1805, can, by any undergone various changes and modifications reasonable interpretation of language, be con- without reference to the contracts of individustrued into a "suit or prosecution;" neither als. Cited M'Cormac v. Alexander, 2 Ohio Rep. was "pendinf and undetermined" at the time the 76. 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."

What were, in fact, the 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 [*516 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 con

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 ordi-tracts of Ludlow, in any other manner than nance 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 515*] 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

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 legisla tion 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.

sion 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," etc. 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.

All the arguments of the defendant's counsel, | for the appointment of guardians to lunatics whatever form they may have assumed, have and others. This latter statute passed January been refuted by the very learned and unan- 15, 1805, and the 2d section contains a proviswerable opinion of the Chief Justice of the United States in the case of Ogden v. Saunders, 12 Wheaton's Reports, 332 to 357. He seems 517*] 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 The answer already given to the attempt to natural right as the right to contract, yet it is create or set up a law, by indirect legislation of surrendered by every individual when he comes this nature, applies with equal force here. But into a government of laws, and this surrender in this place the argument is destroyed by imposes the duty on the government to furnish other considerations. The last enactment of adequate remedies. The defendant's counsel the same session controls the first, if they are assume that the right to regulate the remedy, in terms contradictory or inconsistent. If, in and to modify the obligation of a contract, are January, the law of 1795 was supposed to be in the same; that the obligation and the remedy force, and if the reference to it may be regardare identical; that they are synonymous-two ed as a legislative declaration of an intention words conveying the same meaning. The an- to continue it, the subsequent enactment of swer to this shape of the argument, is plain February expressly repealing it, must neverand simple. The obligation of a contract is theless have operative effect. And, adopting coeval with the contract itself-it originates the principle of construction insisted upon by with the contract, and exists with it anterior to the other side, this consequence follows: the the time of performance. The remedy oper-reference in the Act of January to the existing ates upon a broken contract, and its office is to law, adopts or revives it for *the spe- [*519 enforce a pre-existing obligation. Obligation cial purpose declared; but cannot, contrary to and remedy, or right and remedy, are therefore the Repealing Act, continue it in force for any not identical; they originate at different times, other purpose. 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 cannot 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 ad518*] ministrators, 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

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 defense. 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 it 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