| Ark. | Jul 15, 1844
By the Court,
The only point of contest, or of the least difficulty in this cause is the constitutionality of the ninety-seventh section of the act of the Legislature regulating the proceedings of administration in the court of probate. That section declares, “that no demand shall be allowed by the court of probate unless the claimant shall make oath in open court that he has given the estate credit for all payments and offsets to which it is entitled, and that the balance claimed is justly due.” The ninety-eighth section of the same statute forbids such affidavit to be received as evidence of the demand, and requires it to be proved by other competent testimony before it shall be allowed. We hold these sections to be clearly unconstitutional. The Legislature certainly does not possess the power to cut off all remedy on demands against the estate of deceased persons, or so to impair the right or clog its assertion as to render it inoperative or valueless. To draw the line between the Legislative and judicial departments of government, arising upon questions of the remedy and right of contract, is admitted by all jurists to be a most difficult and perplexing task, and no universal rule has ever yet been laid down and established on that subject. Most of the cases, if not all of them, have been decided on their own peculiar state of circumstances, and they have generally been carefully and satisfactorily determined. It is a maxim of universal justice pervading the whole system of the common and civil law, that wherever a party has a legal right he is entitled to a legal remedy to enforce it. For, if this was not the case, it could not be said that the laws reigned and governed the rights of contract. It is the obligations of the laws compelling men to perform their legal duties or punishing them for their violation that gives security and affords protection to life, liberty and property; and the peaceful and unfettered enjoyment of these blessings mark the boundaries between just and arbitrary governments. It is obvious that in all cases of small sums against the estates of deceased persons, owing to our own citizens, who reside at any distance from the court of probate, or to those of other States, to require these claimants to appear in open court and make oath of the justness of their demands would, in effect, bar them. The cost and trouble of travelling to court and returning, would consume, and in most instances, far exceed the original amount of their claims. In these cases, by cutting off all remedy from their assertion, the Legislature has completely destroyed all these legal obligations, and in many cases there would be a physical inability for the claimant to attend and make oath in op.en court. Certainly physical inability, or bodily or mental infirmities, cannot destroy the legal obligations of men’s contracts; and even in cases of large amount, the party’s rights to enforce them would often be so encumbered and burdened, as seriously to impair their value and efficiency.
Again, even after the party has made an affidavit, the Legislature declares that it shall not be received as evidence for him in the cause, but compels the claimant to establish his demand by other satisfactory proof. The Legislature places an onerous burden on the assertion of his rights, and oppresses him not only by requiring a useless but expensive act to be done, and when it is performed, it allows it to have no weight or influence in his favor in the cause. In every aspect that this case presents itself, we arc clearly of opinion that the section in question is unconstitutional and void, and as the circuit court excluded the claim from allowance on this ground, its judgment must be reversed.