delivered the opinion of the court.
The scire facias recites, that George Bell had recovered judgment against Montgomery Bell for $8674, and also against said Bell and James S. Bell and John J. Bell, his securities in a writ of error from the county to the circuit court, for $1084, damages; and likewise recovered against said Bell, and the above James S. and John J. with Leonard P. Cheatham their security, for damages in this court, the sum of $1219; that saidM. Bell had paid a large portion of said debt, to wit, $-, leaving a balance of $1848, since which proceeding George Bell has departed this life intestate, and no person will administer' on his estate. The sci.fa. is as follows:
“And whereas, by virtue of an act of Assembly of the State of Tennessee, passed on the 16th day of November, 1829, ch. 49, entitled an act for the benefit of the executors of Wm. Tate, said suit is permitted to be revived in the names of James Gordon, Robert T. Walker and Robert Bell, executors of the last will and testament of Wm. Tate, deceased.” Then follows the command to make known, &c.
The act of Assembly, in a preamble, recites, “that George Bell, deceased, on the 30th of July, 1824, obtained a judgment in the supreme court against Montgomery Bell, which said judgment was founded on a blank endorsement of a note to him, and which he held as trustee for the executors and legatees of Wm. Tate, and the legatees of Margaret C. Tate, deceased. And
“Be it further enacted, that in case the scire facias is served on said Bell, fifteen days before the next term of the supreme court, the same shall stand for trial at said term.”
At the trial term as specified in this act, Bell appeared and moved to quash the scire facias, on the ground that the act being limited and partial in its operation, is unconstitutional and void; and that being the only authority for the sci. fa. it is void also.
It is here proper to remark, that it is with reluctance the court will declare a law unconstitutional; not from any fears of consequences which might arise from conflict of opinion with another co-ordinate branch of the government, but because the court might incline the more to doubt that opinion, where, on the same point, it may seem to have been „formed upon deliberation by others officiating in a high and responsible sphere. Hence this court, in a doubtful case, would permit a law called in question to have its effect. But when the court is satisfied, there is an obligation resting uj>on them that it would be criminal to compromise.
The act in question has been passed in terms directly to affect a judgment of this court. It is not passed in aid of the court; for the court in dispensing justice, did not need the aid of it. The law as it stood at the death of B ell, fixed the rights of the parties; the disposition of the fund expected to be raised from the judgment, was governed by existing rules; these were all before us, subject to be acted upon as soon as the proper person
So long as we consider that there existed courts of equity open to the investigation of the subject of this trust, there was no necessity for the act we are consider-
But we do not stop here. It is assumed, in the act that Bell, having died out of the State of Tennessee, administration cannot be taken out upon the estate. This is a mistake. Administration may be taken out, if there be bona notabilia in any county. Here was a chose in action; and the case of Brown, administrator of Pearsall vs. Wright,
But there must be another view to be taken of this case, which will show the unfitness of such legislation. So far as we have gone, the act is on one side in relation to M. Bell, and the. assumed rights of Tate’s executors. These last are by the act introduced, while on the other hand, James S. Bell, John J. Bell, and Leonard P. Cheatham, are dropped. Against these, as well as against M. Bell, we had proceeded to judgment; and if we are to follow the act as our authority, we are no longer to consider them as parties, for the matters recited, as well as the enacting clauses, wholly overlook them; and yet the
In strictness, the act has no application to any suit before us. Either there is a failure of record, or an absence of^ithority to reach and cover it. Therefore, it is not material whether we view the case made by the act as of pmtial and limited application, and for that cause not warr^^^Bkr the constitution, or whether we take it in the la^mPR presented. In either view it must be void, and the sci. fa. upon it ineffectual to authorize the judgment asked by it.
The motion to quash the sci. fa. must prevail.
Motion sustained.
Notes
Ante, 57.