5 Tex. 106 | Tex. | 1849
Lead Opinion
The judgment is charged to be erroneous on the grounds—
That the statute of limitations did not commence to run in favor of the defendant until his immigration to the Republic; and,
That the amendment consists of two distinct allegations, the first of which is in the words of the twenty-second section of the statute of limitations, and clearly takes the case out of the operation of the statute, and brings it within the exception of the section; and,
Were the second allegation of the amendment admitted to be insufficient to support the action, yet the matter contained in the petition and other allegations is sufficient for that purpose.
This last position is untenable. If the first allegation be sufficient, and the second the reverse, yet they are not divisible in their nature, so that on demurrer to tile whole pleading judgment should be given for the plaintiff. The fact of the defendant not being in the country before the 1st of January, 1845, being averred, qualifies all otiier allegations in relation to his absence from or presence in the Republic; and the demurrer admits the facts as alleged, only with this modification.
The question for decision is whether the cause of action is excepted from the operation of the general limitation of the statute until the defendant’s removal to the country; and its solution depends on the true construction of the twenty-second section, which is expressed in the following terms :
“That if any person against whom there is or shall be cause of action is or shall be without the limits of this Republic at the time of the accruing of such action, or at any time during which the same might have been maintained, then the person entitled to such action shall be at liberty to bring the same against such person or persons after his or their return to the Republic; and the time of such person’s absence shall not be accounted or taken as a part of the time limited by this act.”
It is urged that the exception operates as well against persons coming from abroad or removing to the country as against citizens or residents going abroad and returning after a temporary absence; and several authorities are cited in which similar provisions in the statutes of other States and nations have received this construction. I shall not attempt an .exploration of the jurisprudence of foreign nations or States to ascertain the points of resemblance or difference between the section and provisions to be found in their legislation. That such interpretation of provisions nearly similar has been sanctioned by English and American courts is unquestionable; and as reasoning, it commends itself by all the considerations derived from the general approbation of those pure, enlightened, and august tribunals. But their expositions have not the conclusive force of authority. At the passage of this statute Texas was an independent nation, possessing and exercising the plenary powers of sovereignty. She was subject to no laws except those emanating from her own Legislature, nor to the constructions of any courts other than her own domestic tribunals. Among her other attributes of sover-eigntj', she still has authority to prescribe the times at which suits shall be brought and actions barred within her own territory; and her laws for that purpose can receive their authoritative interpretation from her own courts alone. Tiie accidental circumstance that the terms of the section in question may be similar to the provisions of foreign laws is immaterial. Many of our statutory regulations are similar to those found in the codes of other countries. Some of them are derived from the common law; others from the civil-law system of jurisprudence. The expositions of many of these have been variant in different countries, and perhaps fiuctuating in each of them; and at all events they can furnish no rule of action, except in the territorial limits of the State where they are made; for it cannot be pretended that the exposition by a foreign court or jurisconsult of a foreign law can have any other force than
We proceed to inquire into the legislative will as dedueiblc from the terms emjdoyed to express their intention, and the question, as it arises on the words, is simply whether the section can embrace any class of absentees except those whose return to the Republic is physically possible; or, in other words, whether it can, in the ordinary acceptation of the terms employed, be extended so as to include debtors whose return is physically impossible, for the reason that they had never been previously within our territorial limits, and consequently had never departed therefrom. Were this an original question, a ras integra, it would seem very improbable that any interpretation could depart so widely from the usual signification of the language as either to disregard totally the force and effect of the word return or to make returning to a* place and coming to it for the first time equivalent expressions. It is most obvious that foreigners residing abroad and coming into the State for tlie first time are not the class included within the letter of the statute. In its terms reference is made only to persons without the territorial limits being subjected to action on their return. How, although a foreigner who lias always ■resided out of the country may he truly described as being without its limits, yet it cannot he predicated of him, if he .afterwards come to the country, that he has returned, at least as long as terms have the meaning imparted to them by the common consent of those who employ them as a medium for the communication of ideas.
The words “after his or her return to the Republic ” are certainly not identical with the phrase “after his or their emigration or removal to the Republic.” They were framed doubtless to convey a different impression to the mind, and they answer that purpose very effectually; and if they he not equivalent or identical, it is beyond the power of courts of justice to make them so, or to include any other persons within the exception than such as are •embraced within its plain meaning and literal expression. (3 Johns. Ch. R., 146; Angell on Lim., chap. 2, sec. 12, p. 532.) It is a formulary not to bo •questioned that unless persons are under the disabilities expressly mentioned ■ in the statute, they cannot be exempted from its operation by judicial construction. (Angell on Lim., 532; 17 Ves. R., 38.) That the defendant or a foreigner is not embraced within the exception will appear in a very striking manner by contrasting the two averments of the amended petition, in one it is •declared that the defendant was out of the country at the accrual of the cause of action, and did not return before tlie 1st of January, 1845; and in the ■other that he never was in the country bcfoi’e the 1st day of January, 1845. Do these allege the same facts? Do they convey the same impression to the mind? Would not the construction that these statements are equivalent in their meaning he entirely arbitrary and capricious? Yet, unless they mean the same tiling and are descriptive of identically the same facts, the defendant ■ cannot bo brought within the operation of the exception. The first averment states precisely the facts which form the ground of the exception provided for by the statute; the second alleges a different state of facts. The latter are therefore not within the exception, and the defendant must necessarily be ■entitled to the benefit of the bar afforded by the general limitation.
That the affirmative description of a class of persons embraced within an exception must necessarily exclude all not comprehended within its literal meaning will appear from the construction of the statute of James in relation ■to absent debtors. There was no exception against them in that statute, and •they had the full benefit of its limitations. The fact that an absent debtor could not be sued during bis absence or before he came to the country was not allowed, on any general principle of reasoning or of equity, to operate in •favor of the plaintiff*. The course of the statute was uninterrupted, whether
It seems a wide departure from such rigid principles of construction to hold/ that an immigrating debtor should be included under words descriptive of returning absentee's, and to bring the former as well as the latter class within the range of the exception oil any general principles or supposed equities;, as, for instance, that neither of them until their arrival within the limits of the country was subject to the process of the courts. It must be recollected that when the enlarged construction contended for was originally given to the phrase “return to the realm,” or rather when it was deprived of all meaning, the courts manifested a decided repugnance to enforce the real objects of the-statute. The plea was considered discreditable, (1 Pet. R., 351,) and slight circumstances were seized upon to avoid its operation. In actions for torts the construction was always strict, but in those of assumpsit the provisions of the statute were almost entirely disregarded. The language was peremptory that the-action should be commenced six years after the accrual of the cause, and not after; and yet it was held that an allusion to the debt in conversation, accompanied with declarations that it would not be paid or that it was barred by the statute, would be sufficient to deprive the party of the protection of the statute-on which lie had meant and expressed his intention to rely. Such equitable construction amouuted to a virtual repeal of tiie statute, and it is not surprising that while the limitations in favor of the debtor were nearly abolished by judicial construction or presumptions, exceptions in favor of the creditor were enlarged, and that ail persons coming into the country should be included under a description applicable alone to those who had gone abroad and whose return to the territory might be predicated as a possible event.
But without considering further whether the judicial construction of similar-statutory provisions has been compatible with the terms and the plain and universal acceptation of the language, let us advert to other sections of this and other statutes, and ascertain whether such a construction would harmonize with the provisions and the general policy of the country as shadowed forth in its legislation. The thirteenth section of the statute declares that no-action shall be brought against any immigrant to the Bepublic to recover a. claim which was barred by the law of limitations of that country or State from which he emigrated, nor shall an action be brought to recover money from an immigrant who was released from its payment by the bankrupt or insolvent laws of the country or State from whence he emigrated. Thdse provisions are not to be found in the laws of any other country. In other States the, law of limitation of the forum is alone regarded. If, for instance, a creditor and debtor, or either, were to remain in Texas for fifty years and the debt be barred a dozen times, yet, if they afterwards emigrate to England, the creditor would have six years to institute his suit, according to the doctrines-laid down in 3 Wilson R., 145.
The intention of the Legislature to treat the immigrant debtor with marked-favor is manifest by offering him the benefit of legal defenses not recognized-by the laws of oilier nations. But in addition to this section, the supplement to the act of limitation exhibits very strikingly the intention of the Legislature to favor, or rather treat the immigrating debtor with justice, and to subject, beyond all misapprehension or construction, foreign claims to the bar of the limitations of the statute. The supplement is expressed in tile following terms: “That, to prevent difficulty in the construction of the act of limitations passed at this session of Congress, it is hereby declared that the said act applies no less to foreign than to domestic claims.” It cannot reasonably be supposed that the Congress intended to assert a principle of international law universally recognized, that the limitation upon actions depends upon the law of' tiie country in which the suits arc prosecuted, and not the law of the place ■
But it is said it would be inequitable to apply the exception to our own citizens absenting themselves temporarily and not also to foreign immigrants, who could not be sued until their arrival in the eonntry. The apparent justice or injustice of the law is not the question to be determined. It is the duty of the court to inquire what is the law, and to adjudge according to its rules and principles. If foreign immigrants be not included in tlie terms of the exception, they cannot be subjected to its operation: (3 Johns. Ch. R., 146.) Nor is the restriction of tlie section to residents departing from tlie Republic to-foreign countries and returning again at all incompatible with the scope of our laws from the first settlement of the country to the present day. Immigrants were invited by the strongest inducements, and absenteeism and abandonment of the eonntry punished by heavy penalties. Under the colonization laws settlers abandoning the country forfeited the lands granted under those laws. In the acts of the consultation and by the Constitution tlie penalty of flight was forfeiture of lands. And under the land laws of the Republic a claimant entitled to a lieadright for a league and labor under the Constitution, and who-had perhaps shared all the perils of the Revolution, lost his claim if he did not remain in the country until the time of application for his certificate; and if before application he absented himself from the country under circumstances that showed a change of domicile, lie would be deprived of his right, although he afterwards returned. Suits on foreign judgments for a money demand were prohibited in the bankrupt act, and when the courts were opened -on sucli suits, those of four years’ standing were barred unless sued on in sixty-
We have been referred to a judicial construction of the word “absence” to be found in Buchannan v. Rucker, (9 East, 192, 194; Story Con. Laws, sec. 547.) A judgment had been obtained in the island of Tobago against a party stated to be. “formerly of the city of Dunkirk, now of the city of Loudon, merchant.” He was cited by a summons which had been served by posting up a “copy of the declaration at tlie court-house door,” and failing to appear, judgment had been entered against him as in default. The judgment was attempted to be maintained on'tlie ground that it was authorized by tlie local laws in cases of persons absent from the island. Lord Ellenborough, in delivering the judgment of the court, said: “By persons absent from the island must necessarily be understood persons who have been present and within the inrisdietion, so as to he subject to the process of the court; but it can never be applied to a person who, for aught that appears, never was present within or subject to the jurisdiction. ‘Absent f rom the island’must be taken only to ■apply to persons who had been present (here and were subject to the jurisdiction of tlie court out of which the process issued.” Had such accuracy of definition been applied to tlie terms of the statutes of limitations, the ■tlie word “absence” could never have been applied to persons who had never been within the limits of tlie country, and certainly the word “return” could never have been enlarged so as to comprehend as well those who were coming into a territory for the first time as those who had departed thence and were returing again to tlie places of their residence.
Judgment affirmed.
Dissenting Opinion
dissenting. I fully coincide in opinion with tlie court upon tlie first question presented in argument. I regard the original petition and tlie amendments as constituting one pleading or petition. For the purpose of considering the demurrer, every averment well pleaded must be taken to bo true ; but at the same time every allegation is to he taken most strongly against tlie party making it. And I take it to be quite too clear for argument that the plaintiff must be held to his express admission that the defendant, previous to the time mentioned, had always resided out of the limits of this State.
But. upon the second point, the effect of this non-residence upon tlie plaintiff’s right to sue under the saving- provision of tlie twenty-second section of the act of limitations, I find myself constrained to differ in opinion with the majority of tlie court. I regard the law upon this question as settled upon too linn a basis of uniform and enlightened adjudications to lie now questioned. 'This will, I think, be sufficiently apparent by a brief reference to a few of the adjudged cases.
In the case of Ruggles v. Keeler (3 Johns. R., 264) tlm question was raised upon tlie construction of tlie proviso in tlie statute of Row York, which was adopted from the statute of Anne, and of which onrs is ft substantive enactment. and underwent the scrutiny of that pre-eminently learned and enlightened court of which Kent was t hen Chief .1 ustice. The. English autlioril ies were reviewed by the Chief Justice with his usual great ability and learning, and a .conclusion was arrived at the opposite of that at which this court lias
The rule as here stated has been reasserted and affirmed by the Supreme Court of the United States, and also by State courts, in numerous decisions. (3 Wheat. R., 541; 11 Wheat. R., 361; 14 Mass. R., 203; 11 Pick. R., 36; Ang. Lim., 214-216, and notes.)
Thus, at the period when our statute was enacted, the signification of the words employed in tiie saving clause of the twenty-second section had been judicially determined. Must not the Legislature be supposed to have adopted those words with tiie meaning' which had thus been attached to them by judicial construction ? Is it reasonable to suppose that they intended the application to this section of tiie statute of a different rule here from that which a known judicial construction had given to the same language elsewhere?
“Tiie American acts of limitations,” says Mr. Angelí, “as they relate to personal actions of every kind, are either an exact transcript of the statute of Janies or a revision and modification of it, and that the mere change of phraseology in tiie revision of a statute before in force will not work an alteration in the law previously declared, unless it indisputably appears that such was the intention of the Legislature, has been expressly decided.” (Ang. Lim., 17.)
“If tiie periods of limitation be different in different countries or States and dn different actions, yet, as the statutes are drawn with slight variations of phrase, and all being in pari materia, the object and intention being the same, they require a uniform construction.” (Per Abbott, Ch. J., 5 B. & Aldr., 204.)
To tiie same effect is the language of Mr. Justice Story in the case of Sherwood v. Sutton, (5 Mass. C. C. R., 149.) And in Pennock & Sellers v. Dialogue (2 Pet. R., 18) the same learned judge says: “It is doubtless true, as has been suggested at tiie bar, that when English statutes, such, for instance, as the statute of frauds and the statute of limitations, have been adopted in our legislation, the known and settled construction of those statutes liy courts of law has been considered as silently incorporated into tiie acts or has been received with all the weight of authority.”
So, in Kirkpatrick et al. v. Gibson's Executors, (2 Brock. C. C. R., 391,) Chief Justice Marshall said: “I am the more inclined to this opinion because it is reasonable to suppose that when a British statute is re-enacted in this country, we adopt tiie settled construction it lias received, as well as the statute itself; and such I believe to have been the course of the court in every Slate of the Union.” And-again, in Cathcart et al. v. Robinson. (5 Pet. R., 280.) the same eminent judge said: “The rule which lias uniformly been observed by this court in construing statutes is to adopt the construction made by the courts of tiie country by whose legislation the statute was enacted.” “The received construction,” &c., “may very properly be considered as accompanying the .statutes themselves and forming an integral part of them.”
This undoubtedly is the doctrine universally recognized. (1 Pick. R.,
To return, then, with this doctrine in view to the construction which has-been given to the section of our statute in question in our sister States from which the statute was borrowed.
In the ease of Estis v. Rawlins (5 How. Mi. R., 265) the court quote the twelfth section of their statute in these words: “ If any person or persons against whom there is or shall be cause of action,” &c., ‘'shall be out of this State at the time of such action accruing, or any time during which a suit might be sustained on such cause of action, then the person or persons who is or shall be entitled to such action shall be at liberty to bring the same against such person or persons after his or their return into this State; and the time-of such person’s absence shall not be accounted or taken as a part of the time-limited by this act.” After remarking that but for the word “ return” in the latter part of the section there could be no difficulty as to its construction, and that there can be no good reason for allowing that to control and limit the previous broad and unequivocal enactment, adverting to the reason of the rule and the authorities by which it is supported, the court proceed to say “The reason and justice of the enactment apply as well to those who have not been in the State at all as to those who have not been in it since the cause of action accrued. It was evidently intended that the remedy should not be barred until there had been ample time and opportunity to enforce it under the laws of the State. Until the defendant came within the jurisdiction of our courts there was no such opportunity. The only remedy in this case was by personal action. 'That did not exist until the defendant was subject to llie jurisdiction of the látate courts; and, of course, it could not be barred until it had an existence. The savings in the English statutes of 21st James I and 4th Anne, both as to plaintiffs and defendants who were abroad when the cause of action accrued, have been held to apply as well to those who had never been in England as to those who had left before the cause of action accrued. And such also lias been the construction in most of the Slates of the Union.” (Per Sharkie, Chief Justice.)
This is but a reiteration of the views which have prevailed universally wherever similar statutes have existed. They were adopted in the earliest decisions upon the statute, both in England and the United States. They not only stand uncontradicted, but they have received affirmatively tiie fullest and strongest sanction. (16 Pick. R., 359; 3 Mass. R., 271; 1 Pick. R., 263; 3 Gill. & J., 158; 2 McC. R., 331; 1 Stew. & P. R., 36; 3 Pike Arks. R., 409; 7 Missouri R., 241, 243; 1 Greene Iowa R., 9, 11; Ang. Lim., 214-216, and notes.)
The language of numerous decisions of the courts of other States, to the same effect as that extracted from the opinions in Ruggles v. Keeler and Estis v. Rawlins, might be quoted, but these references will suffice to show that the present is not a new or an open question. It will be seen from them that the rule that the saving in the 22d section of the statute applies no less to foreigners than citizens was first settled upon the construction of the English statutes from which ours is derived by courts amongst the most enlightened that adorn the history of our jurisprudence; and that in this construction they have been followed down to the present time with a unanimity of opinion and adjudications scarcely ever equaled upon any other subject.
IVe have the uniform decisions of the English courts, without a single case or opinion or even dictum to the. contrary; we have the unanimous opinions of the Supreme Courts of Massachusetts and Mew York; we have the do-
The rule was laid down in Lord Talbot’s day as the then recognized and ■established law, and it has never been departed from to the present time. There is not a doctrine or principle or maxim in the whole magnificent structure of our municipal jurisprudence which rests upon a firmer or a sounder basis. It has become the undoubted construction and uncontroverted law, re- • cognized for a series of years and by numerous courts; adopted, repeated, reiterated, and confirmed by the most enlightened judges that have ever presided in courts of justice.
And to all this are we not asked, I with deference submit, to oppose a conclusion drawn from the literal meaning of a single word which occurs in the section in question, and by a criticism upon the meaning of this one word, to •control the broad and unequivocal language of the whole antecedent portion of the section, as though this word, in the same connection, had not long since received a judicial construction; as though our own Legislature had not, to.gether with the statute, adopted the construction upon it by the English and American courts, and thus made the construction as- obligatory upon us as the .statute itself; and, in a word, as though no weight was to be given to adjudged •cases, and no respect due to the highest judicial and, in my view, even legislative authority?
“Who ever heard,” said Chancellor Kent in the celebrated case of Yates v. The People, (6 Johns. R., 420,) “who ever heard of expounding a statute by reading one line only? ” But are we not asked, I with deference submit, not to expound a statute merely, but to overturn all the adjudged cases by a conclusion drawn from the literal import of a single word, a mere grammatical criticism, making the case turn upon a technicality of etymology — a •mere question of philology?
I will not descend from the “vantage ground” of high adjudications to a ■criticism upon the literal signification'of words long since construed by the sages of the law. I disclaim' the idea that our Legislature intended a construction of the language they employed different from that which had uniformly 'been given to the same language elsewhere. Had that been their intention, they would certainly have declared that intention.
To the supplemental act I attach no consequence in the consideration of this question. To my mind it is perfectly clear that the supplement was intended only as the declaration of a general principle, applicable generally to the provisions of the statute respecting money demands, but not especially to control ■and annul this particular provision. I cannot conceive that the Legislature •could liave intended, by a supplement inferring in general terms to the act of limitations, to give a construction or declare the rule, not in reference to the ■statute thejr mention, but merely in reference to a proviso and exception in ■the act. Can it be that by the words “the act of limitations” they meant, not '• indeed the general provisions of that act, but a mere exception contained in its •22d section? I cannot perceive any rational foundation for such a supposition. ■On the contrary, it does seem to me that to indulge it is to suppose the Legislature to have been incapable either of perceiving the import of their own language, or else of employing language appropriate to convey their meaning. Had they intended to declare a rule of construction for the 22d section alone, ■they would certainly have expressed that intention. Had they meant to apply ■to that section a different rule here from that adopted, judicially determined, ■and applied to the same language elsewhere, they would have employed
And they did this out of abundant caution, lest the courts might hold that the statute would not otherwise operate to bar the right of action upon contracts made abroad, or claims held by foreigners while the holders were not subject to the influence of our laws — a doctrine recently contended for here in argument.
It is proposed to effectuate the real intention of the Legislature; and can it be that they actually intended to legislate for the exclusive benefit of foreigners, and to place them upon more favorable grounds than our own citizens? For it is admitted that if the defendant had been a citizen and had gone abroad temporarily, the statute would not have run in his favor during his absence. Can it be that it was really intended to give to foreigners a legal advantage that was denied to citizens?
To give effect to a statute is not necessarily to make it introductory of a new rule. If it were so, there could not beany such thing as a declaratory statute. Legislation does not necessarily imply change. Its legitimate province is as well to restore the common law as render certain what may be thought doubtful, and to insure uniformity of decision as to remedy existing imperfections or to innovate upon the established order of things.
It is the well-settled rule to construe statutes in reference to and in conformity with existing laws. “For it is not to be presumed,” says Chancellor Kent, “that the Legislature intended to make any innovation upon the existing law further than the ease absolutely required. This has boon the language of the courts in every age ; and when we consider the constant, vehement, and exalted eulogy which the ancient sages bestowed upon the common law as the perfection of'reason and the best birthright and noblest inheritance of the subject, we. cannot be surprised at the great sanction given to this rule of construction.” (1 Kent, 464.)
Without entering upon a discussion respecting the reasonableness of the adjudications or intending to resort to the argwmentwm ad absurdum, I may be permitted to advert to one consequence of the new construction, which is that a debtor residing in a State where the period of limitation is double that of our law, when the period of the law of his domicile shall have but half elapsed, may abscond to this State, and his legal liability and the plaintiff’s right of action will be effectually and forever barred the moment the absconding debtor comes within the influence of our laws; and this though his creditor be a citizen of this State. Can it bn supposed that the Legislature ever intended such a consequence? that it was actually intended that the plaintiff’s right of action should be barred in our courts before it ever liad au existence ? Can the imputation of such an intention be, with justice, cast upon the Legislature when they have provided the emigrant with an effectual shield against “stale demands.” by allowing him to plead the act of limitations of the State from, which he emigrated in bar of the action here? (5 Stat., 166, sec. 13.) The (‘migrant is thus protected as far as may be compatible with the sense of justice! which, we must suppose, actuated the Legislature without the necessity of resorting to this construction.
To all that may be said in commendation of the policy of statutes of limitation, when rightly understood and construed in furtherance of the legislative intention, and the principles of right and justice, I accord a cheerful assent. But I cannot yield my assent to doctrines and views which, in my opinion, overturn the well-settled principles of the law, defeat the clear manifestations of the legislative will, and are opposed to the prevailing construction of the most enlightened courts of our own country, and the universally received
That tiie construction to which I adhere has not arisen from any disfavor to statutes of limitation in general is, I thiuk, sufficiently apparent from the authorities to which I have referred, where it is made to rest, not upon any slavish, blind adherence to precedent and authority, but upon what the courts-have considered the well-ascertained intention of the Legislature and the only just interpretation of the statutes themselves.
And when it is borne in mind that it is the universally received doctrine in common-law countries that when one State or nation adopts the written laws-of another it will be deemed to have adopted along with those laws the known construction placed upon them by the courts of the country from which they were derived, and that that construction becomes as much a part of the law of the land as the statutes themselves, and when it is further borne in mind that courts are constituted to expound, not to make the law, and that it is their-province “to administer the law as they find it,” I cannot entertain a doubt as to what construction and rule of decision ought to be adopted on the present occasion.
The doctrine of the binding force of precedents (says Chancellor Kent) has been insisted on by the most eminent jurists and the most enlightened courts.
And he quotes and approves the exceedingly forcible language upon this-subject of that great man and eminent jurist, Sir William Jones, whose exalted genius explored and fathomed almost every branch of legal and political science, and, indeed, of human knowledge, who said, “No man who is not a lawyer would know how to act, and no man who is a lawyer would, in many instances, know what to advise, unless courts were bound by authority as firmly as the Pagan deities were supposed to be bound by the decrees of fate.”'
Although, in my opinion, the construction of the statute which has hitherto prevailed, and to which I adhere, is based upon reason as well as authority, and is not less certainly supported by the one titan the other, it would at least-be superfluous if not even presumptuous in me to enter upon a formal vindication of the reasonableness of a series of adjudications so numerous, and' proceeding from sources of so high authority. And if, in my conception, it did admit of doubt as to wiiat construction ought originally to have prevailed, if I may be permitted to adopt the language and the sentiment of Mr. Justice Baldwin on the occasion of an inquiry not unlike the present, “It sufficed for this case to show by a brief reference what the law for more than a century has been and now is, without ever so far departing from what I deem my judicial duty as to even inquire what it ought- lo be ; as if it was in my power to-abrogate or vary from its rules on this or any other subject. Where a point is decided by adjudged cases, or laid down as settled in the books of acknowledged authority, I take it and feel bound to act upon it as the common law, which is infused into our jurisprudence, unless some act of the Legislature or some decision of this court prescribes another rule. When this court declares that ‘ we are entirely content to administer the law as we find it,’ I feel bound to endeavor to find, and when found, to follow it in all its course. And in searching among the fountains rather than the rivulets of the law for its true principles, I apprehend there can be no safer guide than its precedents and adjudications, which, from ancient times, have embodied and preserved unchanged those principles which time has consecrated by the certainty of the-law, and the security and repose which an adherence to its rule affords to the rights of property and person.” (14 Pet. R., 626.)
Finally, (in the language of Chancellor Kent, 6 Johns. R., 436,) “If the Gordian knot is to be cut, we ought at least to call for the dignus vindice nodus* There ought to be an object befitting so bold a precedent.” In the present -case there is nothing which should disturb the tranquil course of the law*