cause they are incompatible with the judg ment 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. ecutors, &c., on wills and intestates' estates," the State government; which is denied, berepeals 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 Here the laws intended to be repealed are expressly designated, and the general clause was added, ex abundante cautela, to guard against collusion. 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strenuously insist that the Act of 1795, authorizing administrators to sell the lands, &c., of decedents, was expressly repealed on the 1st of June, 1805, by an Act repealing certain laws, passed the 22d of February, 1805.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fully and faithfully performed this onerous and responsible duty; and that all the elementary principles of the laws repealed, had been incorporated into the new code.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 repug503*] nancy, 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 favor of the colonies, of that feudal sternness which characterizes 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 everything calculated to fetter or embarrass titles, or to lock up estates in families; such as entailments, &c. Again, whether the Legislature did intend to repeal the Act of 1795 must be determined by considering as unique, *all the laws in [*504 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 præteritis. 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 [*505 rights of the creditors to look to the real estate (rights paramount to the heirs), as assets, had Upon the hypothesis that this law was repeal-attached; had been recognized by the court; ed, 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 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 administra- | chiefs intended to be guarded against by the tor brings no adversary into court, but must saving clause as any adversary proceeding meet all who choose to come; his proceedings which can be imagined. In 2 Serg. & Rawle, are in rem, and must be considered as entire 8, the court decides, that all the orders of sale and pending, until finished upon the basis they are parts of the same proceeding, they rest were begun. He had undertaken a trust and upon the same foundation, and refer themhad entered into a contract, and had given se- selves back to the filing of the petition. It is, curity for its faithful execution. By this con- therefore, considered that if the Act of 1795 tract, in reference to the laws in force at the were repealed, it did not affect the administratime of its date, the duties of the administration. tor 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, &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 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 be gun 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.) 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 [*507 particularly by Pennsylvania, the 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. 66 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 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.) In addition, to show the sense in which the words suits, actions and prosecutions have been used by the Legistature 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 Even if the statute of 1795 were repealed, and supplementary. Now, it is asked whether this had no saving clause, while the act requiring an proceeding did not involve rights and interests equal distribution of insolvents' estates continas sacred, falling as completely within the mis-ued in force, the court had jurisdiction of the subject-matter and could grant the order. | powers shall be deemed consistent with its limAnd the order once granted could not be in-ited character. validated 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 unbi ased 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 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 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 set- [*510 tled, 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 The counsel for the plaintiff then proceeded estate of the deceased; it directs how letters to discuss the question of the constitutionality of administration shall be granted; what powof the occupying claimant law. The arguers they shall confer; how administrators shall ments 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 ence. If it is a court of limited and not general jurisdiction, the distinction between them is at once destroyed, if the exercise of general 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 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 connection 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 restricts 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 512*] 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, any 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 prosecu tion 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. To 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 Jus- [*513 tinian, jus prosequendi in judicio quo alicur 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., 407,406.) 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. 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 514*] *only to "final judgment," but also to "execution." The term execution" is certainly used here in the technical sense of the 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, nor 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 undetermined" 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. 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 v. Alexander, 2 Ohio Rep., 76.) 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 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. 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 or- Whatever power the order may have condinance? It is in evidence, that at the May ferred on the administrators, or whatever rights 515*] term, *1804, of the Court of Common the creditors may have had, to have their debts Pleas, the administrators of Ludlow applied collected through that particular mode of enfor and obtained an order to sell a portion of forcing their collection, they were all alike the estate of said Ludlow. No sale, however, derived through, and dependent upon, the legwas made of any portion of his real estate till islation of the country; and it is held to be August and September, 1805, in the county of consistent with sound principles, and the decisHamilton. None had ever been offered under ions of this court, to say, that so long as the that order at public sale; no purchase had been order remained unexecuted, neither purchaser made, no contract had been entered into, that nor creditor had such vested rights under it as was within the power conferred by the order. were drawn out of the scope of legitimate leg The order remained a naked authority or pow-islation. If the order itself, or the supposed er 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 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 |