Merwin v. Ballard

• Decision Date: 31 January 1872
• Parties: JOSEPH MERWIN v. JOSEPH L. BALLARD.
• Court: North Carolina Supreme Court

66 N.C. 398

JOSEPH MERWIN

v.JOSEPH L. BALLARD.

Supreme Court of North Carolina.

January Term, 1872.

1. A statute is to be construed prospectively unless contrary intention be clearly expressed therein. Therefore, where an action was commenced on the 18th day of March, 1870, and subsequently the Legislature passed an act changing the mode of procedure, it can have no application to such cause, and the action must be tried according to the law existing at the commencement of said action.

2. When an action under the old system was brought for goods sold and delivered to the defendant, and he demurs thereto, if the Court overrules the demurrer, it would be irregular to grant a final judgment, but such judgment must be only interlocutory, and the inquisition of a jury is necessary to ascertain the value of the goods so sold after having the proofs of both parties to the action.

Parker & Gatling v. Smith, 64 N. C. 291, Hamlet v. Taylor, 5 Jones, 36, cited and approved.

Petition to rehear this case, which was decided at January Term, 1871, and reported in 65 N. C. 168.

The facts upon which the petition is based, are found in the opinion of the Court in the volume referred to. Petition was filed at January Term, 1871.

Moore & Gatling for petitioner .

Battle & Sons contra .

DICK, J.

The various changes made in the C. C. P. by the Legislature have tended to produce some confusion in pleading and procedure in the Courts, and have given rise to many questions as to the proper construction of these amendatory statutes.

The act ratified on the 28th day of March, 1870, chap. 205, was not called to our attention when this case was argued at a previous Term, (65 N. C. R. 168) but it does not affect that decision. The act, in express terms, is declared to be in force from and after its ratification, and it had no operation previous to that date. Hamlet v. Taylor, 5 Jones, 36.

This action was commenced on the 18th day of March, 1870,--ten days before the ratification of said act--and was brought in accordance with existing law as set forth in the opinion heretofore filed in the case. The subsequent statute did not deprive the plaintiff of his rights. A statute, upon obvious principles of convenience and justice, must in general be construed as prospective in its operation. It must be construed as intended to regulate the future conduct and rights of persons, and not to apply to past transactions. This elementary rule of construction may be changed by the Legislature, but such intention must be sufficiently expressed by the statute. As no contrary intention is manifested in the act which we are considering the general rule must prevail, that the law as it existed when...