
    
      Ogden, administrator of Cornell, vs. Witherspoon, administrator of Nash.
    •''"pHS defendant pleaded the act of 1715, ch. 48, sec. 9 ; “Cre-44 ditors of any person deceased, shall make their claur* 46 within seven years after the death of such debtor, otherwise 44 such creditor shall be forever barred.” Divers other actions were in court pending upon the same pleadings ; and the court appointed a day for the argument respecting the validity and effect of the plea. On the day appointed, an argument was had, and the court took time to advise ; and some days afterwards,, delivered their opinions in substance as follows :
   Potter, Judge.-

The act of If8& is inconsistent'with that of 1715, for it establishes a shorter limitation than the act of If 15, and upon different terms. The act of 1/89, ch. 23, sec. 4, enacts, “ That the creditors of any person or persons deceased, if 4* he or they reside within this state, shall within two years ¿ 44 and if they reside without the limits of this state, shall within “ three* years from the qualification of the executors or admira» “ strators, exhibit and make demand of their respective sc- “ counts, debts and claims, of every kind whatever, to such ex-44 ecutors or administrators; and if any creditor or creditors 44 shall hereafter fail to demand and bring suit for the recovery 54 of his, her or their debt as above specified, within the aforesaid 44 time limited, be, she or they shall, forever be barred from the et recovery of his, her or their debt, in, an)' court of law or equity. 44 or before any justice of the peace within this state.” Section IS directs “ advertisements within two months after qualification/5 See. The act of 1715, however, was in force till the act of 1789 5 hut clearly its operation was suspended by the 101st sec. of the act of If77, ch. 2, commonly called the court law, and by other acts passed after the beginning of the war, disabling British subjects to sue in our courts. These disabilities continued till the treaty of peace was enforced in this state by the act of 1785/ which declares it to be a part of the lav/ of the land. The act, of If 99, declaring the act of 1715 not to have been repealed, and, to have continued in force, has not the effect of making thatacC to have been in force after it was.repealed, till re-enacted.

¿Par&hall, Chief Justice.

In the act of 1789, these is this clause: 44 That all laws and parts of laws, that come within the 44 meaning and purview of this act, are hereby declared void, and 44 of no effect.” There are two rules for determining what acb shall be deemed to be repealed by a latter one. If the latter tv inconsistent with the former, it repeals the former. If it be reconcilable with the former, but legislate upon the same subjects as the former does, and repeals all other laws within its purview, the former is repealed. Then what is the subject oí the ninth section of the act oí 1/15 ? The estates oí all dead men, and all creditors upon them, and a limitation of the time lor the exhibition of such claims. What is the subject of the latter act ? Precisely the same estates and persons, and a limitation of the time ior bringing forward their claims. There is a legislation in both acts upon the same cases. The repealing clause then extends to the section in question-. The act of 1/15. prescribes a limitation, without an exception of persons ; the act of l/S9(-xcepts persons under disabilities, such as femes covert and the like. If the act of 1/15 be in force, persons under disabilities will be excepted untiL the expiration of seven years, and not afterwards ; for at that period all persons will be barred by the act of 1/15, if it stand with the act of 1/89. But why should the legislature design a permission for persons under disabilities to sue after the tune prescribed in the act of 1/89 for other persons, and until the completion of the seven years fixed by the act of 1715, and not afterwards? The same reason which continued the exception till the expiration of seven years, will still operate to continue it longer. If the exceptions are to last as mentioned by the act of 1/89, until the disabilities be removed, then the act of 1/15 must be repealed. The act of 1/99 declares that the act of 1/15 hath continued, and shall continue to be in force. I will not sav at this time that a retrospective law may not be made ; but if its retrospective view be not dearly expressed, construction ought not to aid it: that however is not the objection to this act. The bill of rights of this state, which is declared to be a part of the constitution, says in the fourth section, “ That M the legislative, executive and supreme judicial powers of government, ought to be forever separate and distinct from each other. The separation of these powers has been deemed by the people of almost all the states, as essential to liberty. And the question here is, does k belong to the judiciary to decide «pon laws whet! made, and the extent and operation of them ; or to the legislature ? If it belongs to the judiciary, then the matter decided by this act, namely, whether the act of 1/89 be a repeal of the 9'.h section of 1/15, is a judicial matter, and not a legislative one. The determination is made by a branch of government, not authorised by the constitution to make it; and is therefore in my judgment, void. It seems also to be void for another reason j the 10th section of the first article of the federal constitution, prohibits the states to pass any law impairing the obligation of contracts. Niw will is not impair this obligation, U a contract, which, at ú t time of pv.-sirg the act of 1/89, might-be recovered on by the creditor, shall by the operation of the act of 1799, be entirely deprived of his remedy?

Upon the point of suspension of the act of 1715, prior to its repeal by the act of 1789, 1 am oí opinion with my brother judge, and for the reasons by him given, that it was suspended and continued so till the act of ¡78'/, declaring the treaty of 1783 to be a part of the law of the 1 tnd ; for it was not settled till the making of the federal constitution, that treaties should ipso facto become a part of the laws of every state, without any act of the state legislature to make them so. It has been argued, that by an act passed in 1791, all acts and parts oi acts retained in the compilation of Mr. Iredell, and not by him declared to be repealed or obsolete, or not in force, shall be held to be in force j and that the 9th section of 1715, being retained therein, and having no such declaration attached to ■t, is therefore in forceo The whole of 1789 is also retained, and the repealing clause, as well as the other parts of the act; and if the repealing clause be in force, as no doubt it is, it had the same effect in 1791 as in 1788 and 1789, and continued to keep the 9.h section of the act. <of 1715 repealed, until the passing of the act of 1799.

This cause was removed to the Supreme court by writ of error, where it was also decided that the act of 171S Had been repealed by the act of 1789.

ÍJ. B. The reporter was of the same opinion in 1799, when lie published the manuel, and placed the act of 1715, as taking effect in the year 1799; but Judge Taylor, and some of the other Judges of the court or Conference, were of a different opinion, and held the act of 1715 not to have been repealed by that of i) i;oO i. ( C  