
    A. T. CALHOUN, administrator, plaintiff in error, v. E. B. KELLOGG, defendant in error.
    
    (Atlanta,
    June Term, 1870.)
    RETROACTIVE ACTS—CONFIRMING ACTS OF ILLE-CÍAL LEGISLATIVE BODIES—CONSTRUCTION.—The retroactive Ordinance of 1865 and the Constitution of 1868, confirm the Acts of the illegal legislative bodies which met in this State during the war, where not- in aid of the rebellion, and not in conflict with the Constitution of the United States. But these Acts of confirmation are nbt. to divest vested rights, but are to be construed as Acts of peace and to prevent injustice.
    SAME—SUSPENSION -OF STATUTE OF LIMITATIONS MADE VALID—PREVIOUSLY BARRED ACTIONS NOT REVIVED.—Under this retroactive legislation, the Acts passed during the war, suspending the Statute of Limitations, are made valid -in all cases, where the legal statutes in existence at the commencement of the struggle, had not fully run in favor of the defendant, before the passage of the Ordinance of 1865; but they do not revive a right of action that was *barred by the legal A'cts in existence ,. prior to the passage of the Ordinance in 1865.
    INTERROGATORIES—REJECTION —GROUNDS. ■— Interrogatories sued out by plaintiff will not be rejected upon motion of defendant, because a question by pláintiff is not fully answered, and because it speaks of selling goods upon an order, and no written order is attached, it not appearing that there was any written order. (R.)
    Statute of Limitations. Interrogatories. Before Judge' Johnson. Muscogee Superior Court. November Term, 1869.
    On the 19th of October, 1867',’Kellogg brought complainant on an open-account against A. T. Calhoun, as administrator of. Alexander Calhoun, for the value of a half pipe of brandy, sold to deceased on the 1st of July, 1856. The pleas were the general issue, the Statute of Limitations (four years,) and plene administravit.
    On the trial plaintiff’s counsel offered to read in evidence, the-answer of plaintiff to the following Interrogatory. “Look upon the annexed account and relate all you know of the purchase, by said Alexander in his lifetime of the goods therein charged, their value and all else you know that will make in favor of plaintiff, and show he ought to recover for said goods, in said suit, and annex any letters received from him relating to said goods, and state how you came to receive them.” The account sued on was annexed. The answer was as follows: “The order was received from Calhoun in his lifetime, by Solomon V. Roberts, my agent, and the liquor forwarded by me, as per order, about the date of the account annexed to the Interrogatories, and was duly received by Calhoun. The value of the liquors, as stated in that account was the market value of the liquor at that time, and were sold to Calhoun at that price. No part of that account has been paid.”
    Defendant’s counsel objected to these Interrogatories, because the answer was not full, and because the order and letters were not attached. Plaintiff’s attorneys waived a fuller answer, and the Court overruled-the objection. The Interrogatories, (which were as above, no more, no less,) were then read to the jury. Plaintiff’s counsel proved .that Alexander *Calhoun died on the 14th of August, 1856, and his widow became his administratrix, in August, 1856.
    Upon this evidence the. Court charged the jury, that if the account was due on the 1st of July, 1856, and Alexander Calhoun died in August, 1856, and this suit was begun in 1867, the Statute of Limitations had not run for four years against plaintiff prior to the commencement of suit. He was requested by defendant’s counsel to charge the jury, 1st, If the account was due on the 1st of July, 1856, and Calhoun died on the 14th of August, 1856, and the suit was not brought till the 29th of'October, 1867, then the plea of the Statute of Limitations of four years was made out, and unless plaintiff shows he was under some disability to sue, defendant should have a verdict; 2d, Sufficient time elapsed between the surrender of General Johnston, and the passage of the Ordinance of the Convention in November,- 1865, to complete the four years necessary to constitute a bar. The Court refused so to charge. The jury found for the plaintiff.
    The allowance of said Interrogatories as evidence, the charge and the refusals to charge as requested, are assigned as error.
    R. J. Moses, for plaintiff in error.
    L. T. Downing, for defendant.
    
      
      See the principal case cited in Goodroe v. Neal, 45 Ga. 110.
    
   By the Court—

BROWN, C. J.,

delivering the opinion. ■

After a careful examination of this cáse, I am satisfied that the defendant is not protected by the Statute of Limitations, if all the time is counted out which is covered by the different Acts of Limitation passed after the secession of the State. And the question is fairly made by the record, whether the Statute was legally suspended by the Acts passed during the war, and, if not, whether the healing' or adopting clause in the new Constitution which was retroactive, revived the right of action, after the statute had fully run during the war, under the Acts, then of force passed by a legal legislature.

*Wbatever may have been said on this subject )by others, I shall not stop to discuss the question, whether the Act passed by the different legislative bodies which assembled in this State during the war, were legal and binding or not. Each and every department of the State Government since the termination of the war has conceded their illegality. If we had been successful they would all have been held legal. As we failed we have been obliged to concede their illegality, and the people of the State in convention, have twice made their broad concession by the ratification and confirmation of such Acts, when not passed in aid of the rebellion, or in violation of the Constitution of the United States. Taking for granted then, what the people of Georgia have admitted in two different conventions, and what they have embodied in the Constitution of the State, I think the judicial authority in conformity to the action of the political department of the State Government must lay down the rule, that the Acts passed by the respective legislatures during the war, suspending the Statute of Limitations were illegal, and would have been nugatory and void, but for the Acts of the Conventions of 1865 and 1868, which adopted and gave validity to those Acts. Without this retroactive legislation, according to the repeated admissions of the State since the war, they would have had no force, and all rights in our Courts depending upon the operation of the Statute of Limitations must have been determined under our Acts of Limitation passed prior to the Ordinance of Secession, just as if no Acts on that subject had been passed during the war. And in that case, an action upon an account or promissory note,-was barred at the end of the period fixed by the Statutes of Limitation passed by a legal legislature prior to the war, just as if there had been no legislation on the subject during that period. Apply that rule to this case, and the right of action was barred at an early period in the war.

Now let us see whether it has been revived by the confirmatory retroactive 'legislation since the war, which adopted such Acts passed during the war as were not in aid of the rebellion, (as it must now be called) or- in violation of the *Constitution of the United States. And, I admit in advance, that there is no difficulty in any case when the Statute of Limitations, passed by a legal legislature before the war, had not fully run in favor of the defendant, before the date of the retroactive adopting Ordinance of 1865. If the defendant lacked but a single day of being fully protected by the Statute when the Ordinance was passed, the matter was within the legitimate control of the legislative power, and it might ■ declare that all the time it had run should count nothing and that the right of action should not be barred for such time in future as it might designate, and the confirmation of that Act by the Constitution of 1868 would, in that case, apply and protect the right of action in the plaintiff. But if the Statute of Limitations passed by a legal legislature had fully run in favor of the defendant, before the date -of the Ordinance of 1865 the adopting clause in the Constitution of 1868 does not revive the right of action that was barred before the Act of confirmation.

The Constitution of 1868 expressly declares, that these several Acts of confirmation shall not be construed to divest vested rights, nor to make any act criminal otherwise not criminal; but they shall be construed as Acts of peace and to prevent injustice. Now it is well understood by every lawyer, that statutes of limitations are properly termed Acts of peace or of repose. And it is well known that it was the settled policy of the convention which made this Constitution, to do all that could constitutionally be done, for the relief of the people of Georgia, against old debts contracted before or during the war. This humane policy grew out of the general ruin, loss and destruction of property during the war. I hold, therefore, that this provision of the Constitution, when construed in the light of the surrounding circumstances, and with reference to the known policy of the convention, was not intended to stir up strife and litigation, by reviving any right of action already barred; but it was intended, so far as rights were to be affected by the statute of limitations, to ratify the illegal legislation in cases only, where the statute had not fully run in favor of the defendant, *when the Ordinance of 1865, on that subject, was passed, and to let all cases in which the statute had fully run, repose in peace just as if there had been no legislation on that subject during the war, and no retroactive confirmation of Acts passed during that period.

This view of the case is fully sustained by the legislative construction of these confirmatory Acts. The preamble of the Act in relation to the statute of limitations and for other purposes, passed the 16th of March, 1869, recites: “That much confusion has grown out of the distracted condition of affairs during the late war, and that doubts are entertained relative to the law of limitation of actions in this State, which should be put to rest.” It then enacts: “That all Acts of the Legislature of this State, and all' Ordinances of the Conventions of 1865 and 1868, which have the force and effect of law, which are retroactivé in their character, relative to the statute of limitations, shall be held by the Courts of this State to be null and void, in all cases in which the statute had fully run before the passage of said retroactive legislation.”

This is the positive declaration of the political department of the government, founded on the admission of the convention, confirmed by the Legislature, that the Acts suspending the statute of limitations passed during the war were illegal and of no force till they were ratified by a legal convention or Legislature, and the imperative mandate of the Legislature to the Courts, that they shall in no case so construe the retroactive adopting legislation as to revive a right of action which, under the legal legislation on that subject, was fully barred prior to the passage of the confirmatory Acts which related back and made that valid, which, without such confirmation, would have been of no force. Construing all our legislation since the war upon this subject together, I am unable to doubt that it was the intention of the law-making power to treat the Acts relative to the statute of limitations, passed during the war, as of no binding force without ratification, and that it was not intended that any such healing or confirmatory legislation should revive any right of action, *when the statute of limitations, passed by a legal legislature prior to the war, had fully run before the date of the adopting statute. I am aware that the Chief Justice of the Supreme Court of the United States, in delivering the opinion of the Court in the Texas bond case, has given an opinion, that certain Acts of the Legislatures of the seceded States, passed during the war, when not in aid of the rebellion, are to be held valid. It was not, however, necessary to the decision of the case before the Court, to lay down any rule on that subject. And I do not deem it important to enquire whether or not the suspension of the statute of limitations in this State, which was authorized for one year immediately prior to the secession of the States and in contemplation of that event, and the subsequent Acts continuing it during the war, in connection with the Stay-law and law suspending specie payment by the banks, were intended to aid the Confederate cause, by satisfying .all who consented to enlist in the armies or to aid with their money, that they rights would not suffer during its continuance. As it can not be denied that the legislative power of the State since the war has admitted that this legislation was illegal without confirmation, I feel it my duty as a Judge, till the decision of the political department of the State is reversed or changed by that power itself, so to treat it and to administer as well the exception to the confirmatory Acts as the Acts themselves.

We all agree that the objection in the plaintiff’s Interrogatories was properly overruled, it not appearing from the record that there ever was a written order that he could attach to his answers.

Judgment reversed.

McCAY, J.

concurred, but wrote out no opinion. His written concurrence from the Bench was as follows:

I concur in the judgment overruling the judgment of the Court below. The statutory bar had, as appears from the record, completely attached before the Acts passed during the w’ar suspending the statutes of limitation had been made *valid by the Conventions of 1865 and 1868, and said confirming Acts did not revive a right of action, then barred. I confine this judgment, however, to residents of the Confederate States, all of whom were free to sue in our Courts during the war. Persons who were not resident within our lines during the war were prohibited by Act of Congress, as well as by our own laws then in actual operation, from suing, and the statute did not, in my judgment, run against them at all until the war ended. As it does not appear where these plaintiffs resided during the war, the presumption is that ,they resided in Georgia, or do now reside here, I concur in the judgment, with this qualification.

WARNER, J.,

dissenting.

The question involved in this case, was supposed to have been definitely settled by the judgment of a majority of this Court, in Brian v. Banks, 38th Georgia Reports, 300. In that case, the precise question was made in regard to the validity of the Act of the 14th of December, 1861, suspending the running of the statute of limitations, as is now made in this case. In that case, as it appears from the reported statement of the facts, the presiding Judge in the Court below ruled that the statute of limitations was suspended from the 14th of December, 1861, until the 1st of June, 1865, and that that time was not to be computed against the plaintiff, and that the Act of the 14th of December, 1861, to suspend the statute of limitations, was of force till the end of the war. This decision of the Circuit Judge in that case, was assigned for error in this Court. The following extract from the .reported opinion of this Court in regard to that question, is not the mere obiter dictum of the Judge who wrote out that opinion, but it is the deliberate judgment of the majority of this Court, reduced to writing before it was announced from the Bench, and agreed to as the solemn judgment of the Court in that case: “It is the judgment of a majority of this Court, that inasmuch as the Statute of 1860, suspended the running of the statute of limitations for one year, and the *Act of 1861 suspended the running of the statute during the war, and the Ordinance of the Convention on-the first day of November, 1865, having declared the statute of limitations to be and to have been suspended from the 19th of January, 1861, and that, inasmuch as the 3d paragraph of the 11th Article of the Constitution of 1868 declares of force all Acts passed by any legislative body sitting in this State as such since the 19th day of January, 1861, (including Irwin’s Code,) and inasmuch as the 5th paragraph of the 11th Article of the Constitution of 1868 declares that ‘all rights, privileges and immunities, which may have vested in, or accrued to any person or persons or corporation, in his, her or their own right, or in any fiduciary capacity, under any Act of any legislative body sitting in this State as such since the 19th day of January, 1861, shall be held inviolate by all the Courts of this State, unless attacked for fraud, or unless otherwise declared invalid by this Constitution;’ that the plaintiffs’ right to recover upon the notes sued on is not barred by the statute of limitations; that the Act of 1861, as well as the Ordinance of 1865, suspending the running of the statute, are recognized and made valid by the express provisions of the Constitution of 1868, that all rights, privileges and immunities, which may have vested in, or accrued to any person 'in his, her or their own right, as specified in the 5th paragraph of the 11th Article of the Constitution of 1868, includes the rights of the plaintiff as well as the rights of the defendant, whatever the same may be, and not the rights of the defendant exclusively.” Such was the deliberate judgment of a majority of this Court in regard to the suspension of the statute of limitations by the Act of 14th December, 1861, and published to the world in the authorized report of its decisions. There it stands in the 38th volume of Georgia Reports, page 300, in the case of Brian v. Banks, to speak for itself. But the majority of the Court now hold in this case, as I understand their ruling, that although the account sued on was not barred at the time of the passage of the Act of the 14th of Decembei', 1861, that Act did not suspend the running of the stat- . ute, because it was enacted by an *illegal Legislature; that the statute of limitations having commenced to run against the account, it continued to run, notwithstanding the Act of 1861, which declared the running of the statute should be suspended. The question in the case is, whether the Act of 1861 suspended the running of the statute; if it did, then the defendant acquired no vested rights as claimed by the majority of the Court at the time of the adoption of the Ordinance of 1865, suspending the running of the statute. If the Act of 1861 did not have effect as a law, enacted “by a legislative body sitting in this State as such,” to suspend the running of the statute, either in accordance with the general principles of an enlightened jurisprudence, applicable to the state of facts existing at the time of its passage, or in accordance with the express .provisions of the Constitution of 1868, ratifying and confirming it, then it is conceded that the statute had run more than four years prior to the adoption of the Ordinance of 1865. Did thé Act of the 14th of December, 1861, suspending the running of the statute of limitations, have effect as a law operative and binding upon the people of this State? I maintain that it did, as well upon the general principles of public law applicable to the then existing state of facts, as by the express ratification thereof by the Constitution of 1868.

Although, the Legislature of 1861 may have been an illegal Legislature as against the Government of the United States, still, the Acts passed by it, regulating the remedies on contracts between the. citizens of the State, and other Acts of like character, not passed in aid of the rebellion, were valid laws, and binding on the people of the State, the more especially, when expressly recognized and ratified by the Constitution of 1868. The true intent and meaning of the Constitution of 1868, in ratifying and confirming the several Acts of the Legislature passed during the war, which were not in aid of the rebellion, was to restore peace and quiet in the State and to prevent injustice. When parties had regulated their contract, or the management of their private affairs, in obedience to the then existing laws of the State. In the case of Texas v. White, 7th Wallace’s Reports, 700, the validity *of an Act passed by the Legislature of the State of Texas during the war,'came before the Supreme Court of the United States for adjudication. In delivering the judgment of the Court in that case, Chief Justice Chase said: “It is not necessary to attempt any exact definitions within which the Acts of such a State Government must be treated as valid or invalid. It may be said, perhaps, with sufficient accuracy, that Acts necessary to peace and .good order among citizens, such for example, as Acts sanctioning and protecting marriage and the domestic 'relations, governing the course of descents, regulating the conveyance and transfer of property, real and personal, and providing remedies for injuries to person and estate, and other similar Acts which would be valid if emanating from a lawful government, must be regarded- in general as valid, when proceeding from an actual though unlawful government; and that Acts in furtherance or support of rebellion against the United States, or intended to defeat the just rights of citizens, and other Acts of like nature, must in. general be regarded as invalid and void.” According to the principles of public law, recognized and decided by the Supreme Court of the United States, in Texas v. White, that Court would have held and decided, that the Act of the 14th of December, 1861, suspending the running of the statute of limitations, as between the citizens of this State, was a valid law, independent of its confirmation and ratification by the Constitution of 1868. That Act merely regulated the remedy on contracts between the citizens of this State. If this Act of 1861, merely regulating the remedy on contracts between the citizens of this State, is void and could not be confirmed and ratified by the Constitution of 1868, then all Acts of the Legislature, passed during the war, authorizing the investment of trust funds in Confederate securities, and for the relief of executors, . administrators, and guardians, -and all other Acts of like character, are void, and such is the inevitable logical result of the ruling of the majority of the Court in this case; for their judgment is based on the assumption that the Act of 1861 did not suspend the running of the statute of limitations, because that Act is void, ^having been enacted by an illegal Legislature, and therefore, the statute continued to run in favor of !the defendant against the plaintiff, notwithstanding that Act, until the adoption of the Ordinance of 1865, and inasmuch as more than four years had elapsed before the adoption of the Ordinance of 1865, the plaintiff’s right of action was barred, and that the defendant acquired a vested right which the Constitution of 1868 could not defeat by ratifying and confirming that assumed illegal Act of 1861. The fatal error in the case is, in my judgment, that the majority of the Court erroneously assume that the Act of 1861, suspending the running of the statute is void, and that the defendant acquired a vested right under the law to be protected, notwithstanding the express provisions of the Constitution of 1868, ratifying and confirming all Acts passed by any legislative body sitting in this State as such, since the 19th day of January, 1861, not in aid of the rebellion.

I am of the opinion that the judgment of the Court below should be affirmed.  