Barnes v. Barnes

• Decision Date: 30 June 1861
• Citation: 53 N.C. 366,8 Jones 366
• Court: North Carolina Supreme Court
• Parties: JOHN BARNES v. JOHN T. BARNES, et al.

8 Jones (NC) 366

53 N.C. 366

JOHN BARNES

v.JOHN T. BARNES, et al.

Supreme Court of North Carolina.

June Term, 1861.

The provision of the Act of Assembly, passed on 11th day of May, 1861, commonly called the “Stay Law,” forbidding jury trials, and trials before Justices of the Peace, and the issuing of executions, and sales under executions and deeds of trust, held to be unconstitutional and void.

This was an action of DEBT, tried before HEATH, J., at the last Spring Term of Wilson Superior Court.

During the pendency of this case in the Superior Court, the defendants pleaded, since the last continuance, the following act of Assembly:

AN ACT TO PROVIDE AGAINST THE SACRIFICE OF PROPERTY AND TO SUSPEND PROCEEDINGS IN CERTAIN CASES.

SEC. 1 Be it enacted by the General Assembly of the State of North Carolina, and it is hereby enacted by the authority of the same, That no execution of fieri facias or venditioni exponas founded upon a judgment in any suit or action for debts and demands due on bonds, promissory notes, bills of exchange, covenants for the payment of money, judgments, accounts, and all other contracts for money demands, or contracts for specific articles, other than those upon official bonds or in favor of the State, or against non-residents, shall be issued from the passage of this act, by any court of record or magistrate, for the sale of property, until otherwise provided by law; nor shall there be any sales under deeds of trust or decrees, unless by the consent of parties interested, until otherwise provided by law.

SEC. 2. Where such executions have issued, and are now in the hands of officers, whether levied or not, the officer having such executions shall return the same to the magistrate or court from whence they issued, without further execution thereof, and executions upon the same judgments shall not issue again until the operation of this act ceases: Provided, That this act shall not be construed to discharge the lien which has already been acquired by the taking out such execution.

SEC. 3. There shall be no trials of any cases requiring the intervention of a jury, nor upon warrants before a Justice of the Peace in any suit or action for debts or demands due on bonds, promissory notes, bills of exchange, covenants for the payment of money, judgments, accounts, and all other contracts for money demands, or contracts for specific articles.

SEC. 4. This act shall not apply to liabilities upon the part of public officers, either to the State, counties, corporations, or individuals; nor to State, county, or corporation taxes; nor to debts hereafter contracted; nor to debts due the State, nor to debts due from non-residents, nor to the annual collection of interest; Provided, That no note, bill of acceptance, or other obligation, the consideration of which is any debt or obligation at present existing, shall be held or considered as a debt hereafter contracted.

SEC. 5. The interest which has accrued since the first day of January, A. D. 1861, or which may hereafter accrue upon any bond or promissory note which was payable before the passage of this act, may be collected by action of debt or assumpsit, before any justice of the peace, if the amount of interest sued for be within his jurisdiction, and if not, then in the county or superior courts; Provided, however, That no warrant or suit shall be brought except for the interest of one year or more, (always making an even number) by computing the time from the day when the interest upon such bond or promissory note began to accrue.

SEC. 6. That any person who is about to remove his property out of the State without the consent of his creditors, shall not be entitled to the benefit of this act.

SEC. 7. That all mortgages and deeds in trust for the benefit of creditors hereafter executed, whether registered or not, and all judgments confessed during the continuance of this act, shall be utterly void and of no effect.

SEC. 8. The time during which this law is in force shall not be computed in any case where the statute of limitations comes in question.

SEC. 9. That this act shall be in force from and after its ratification.

Read three times and ratified in General Assembly, this 11th day of May, A. D. 1861.

And on the cause being called for trial, defendant's counsel urged the provisions of the said act, as a reason why he should not go to trial, and why judgment should not go against him. His Honor overruled the objection and ordered the trial to proceed, and on a verdict being rendered for the plaintiff, passed a judgment and ordered execution, from which the defendants appealed to this Court. Questions involving the constitutionality of the Stay Law arose at this term on motions for the issuing of executions on judgments in this Cuurt, which are all considered in the opinion of the Court.

B. F. Moore, for the plaintiff .

Strong, for the defendants .

PEARSON, C. J.

The plea, since the last continuance, by which the defendants claim the benefit of what is commonly called the “Stay Law,” presents for our decision the question of the constitutionality of an act of the last session of the General Assembly--entitled “An Act to provide against the sacrifice of property, and to suspend proceedings in certain cases.” The same question was raised in every case decided at this term, where the judgment in the Court below is affirmed, by motions for judgment and that execution shall be issued.

Whether, in the present condition of the country, the statute be expedient, is a question of which we have no right to judge. Our province is to give judgment on the question of the constitutional power of the Legislature to pass the statute.

In the discharge of this duty, we are relieved by the fact, that a question of such importance is not now presented for the first time, so as to put upon us the responsibility of making a decision on the strength of our own convictions; for we find that the line has been plainly marked, in fact “blazed out” by many previous adjudications, so that it can be easily followed, and all we have to do, is to make our application of well established principles.

The right, and the duty of this Court, to give judgment on the constitutional power of the Legislature in making statutes, is established by so many elaborated opinions of this Court, and of the Supreme Court of the United States, and of our sister States, as to make a further discussion or citation of authorities a useless attempt at a display of learning; so we assume that question to be settled.

Our opinion is, that the statute under consideration, so far as it opposes the right of the plaintiff to a judgment in the Court below, or the motions for a judgment in this Court and for execution, is void and of no effect, because it is in violation of the Constitution of the United States, and of the Constitution of the Confederate States, which, in this respect, is the same, and, also, of the Constitution of this State.

1st. It is patent, by the face of the statute, that it does “impair the obligation of contracts.” This is settled. Jones v. Crittenden, 1 Car. Law Rep., 385. In that case, the argument is exhausted, and we only add “we concur in it.”

It is suggested that this case is distinguishable, on the ground, that when the statute in question was passed, the country was in a state of established revolution, or in a state of “contemplated revolution,” in reference to which the Legislature acted, which revolution has been carried out and consummated by a subsequent ordinance of the Convention, by force of which all acts done in reference to, and in anticpation of, the revolution, are ratified and confirmed as incidents thereto.

This proposition, however much weight it may be entitled to in a political forum, cannot, by reason of its generality, be...