Opinion
(January Term, 1868.)
1. The act of 1866-67, ch. 17, sec. 8, which suspends the operation of the statute of limitations, etc., until 1 January, 1870, is neither a repeal, alteration nor modification of the ordinance of 23 June, 1866, within the meaning of those terms as used in section 24 of that ordinance — prohibiting the General Assembly from such action.
2. The provisions of that act prevent suits from abating, by the death of a party and the subsequent lapse of two terms of the court until after 1 January, 1870.
MOTION to make the executor of a deceased plaintiff party, heard before Shipp, J., at Fall Term, 1867, of the Superior Court of JONES.
Haughton for appellant.
No counsel, contra.
Upon the motion being made, it appeared that the plaintiff had been dead for more than two terms; thereupon his Honor refused to grant it, and adjudged that the suit had abated. The executor of the plaintiff appealed.
The ordinance of 23 June, 1866, "To change the jurisdiction of the courts," etc., provides that the time elapsed since 1 September, 1861, barring actions on suits, or presuming the satisfaction or abandonment of rights, shall not be counted. It also provides that the General Assembly shall have no power to repeal, alter, or modify the ordinance. It is insisted that the ordinance restricts the counting of time only up to the date of its passage; and that, after its passage, time might be counted; and that two terms having elapsed without making the executor a party, the suit abated. And such was the opinion of his Honor.
(582) It is insisted, however, for the plaintiff that, although that would be the true construction of the ordinance, yet the General Assembly extended the provision against counting time up to January, 1870 (Act of 1867, ch. 17, sec. 8), and that, therefore, the suit did not abate. To this it is objected that the ordinance forbids the General Assembly to do this. And then the plaintiff says: Supposing that to be its import, yet the ordinance, not being organic but only legislative in its character, had no more force than legislation by the General Assembly; and that, therefore, the latter had the power to alter the ordinance notwithstanding the prohibition. Mr. Haughton favored us with an able argument in support of that position. But it is not necessary that we decide it, because we think that the act of the General Assembly in no way conflicts with the ordinance. The ordinance says, in substance, that time shall not be counted up to the date of its passage. It does not say that time shall or shall not be counted after its passage. It leaves that as an open question, subject, of course, to legislation. Then the Legislature steps in and says, substantially, that time shall not be counted from the passage of the ordinance up to January, 1870.
We think that the act does not conflict with the ordinance and was not prohibited by it, and that the effect of the act is to prevent the counting of time up to January, 1870, and, therefore, that the suit did not abate by the lapse of two terms.
PER CURIAM. There is error.
(583)