John Marshall

“ The right to demand, and the obligation to pay, are the consequences of contract. The repeal of the act of 1795 neither takes away the right to demand, nor diminishes nor discharges the obligation to pay. The amount and quality of the rights of his creditors were left by the repealing law exactly as they were fixed by the parties; and the obligation to pay, and the liability of his estate to answer the demand of his creditors, are as valid and perfect as they were prior to the repeal. ”

“ The repeal is not to affect in any manner any 'suit or prosecution.' The definition is thus given of the term suit 'the lawful demand of one's right,' or, in the words of Justinian, 'jus prosequendi in judicio quo alicui debetur.' 3 Blackstone's Commentaries, 116. If a 'suit' means the lawful demand of one's right, there necessarily must be some one to make the demand, and some one of whom the demand is made, through the medium of a court, and these parties receive the names of plaintiff and defendant. ”

“ The modes of proceeding which belong to courts of chancery are adapted to the execution of the law; and to the equity side of the court he may apply for relief. Sitting in chancery, it can appoint commissioners to estimate improvements as well as rents and profits, and can enjoin the execution of the judgment at law until its decree shall be complied with. If any part of the act be unconstitutional, the provisions of that part may be disregarded while full effect will be given to such as are not repugnant to the constitution of the United States or of the state or to the ordinance of 1787. ”

“ A power in the administrator to sell the land and pass the title of an intestate's real estate is certainly inconsistent with and contrary to the provisions of a law, that undertakes to prescribe the whole duties and powers of executors and administrators, and limits their management to the personal estate. ”

“ The rights of the creditors to look to the real estate (rights paramount to the heirs) as assets, had attached; had been recognized by the court; and the administrators had instituted the only suit known to the law to enforce them; the suit was ex parte, it is true, so are admiralty, bankrupt and insolvent proceedings from necessity; they all act under the supervision and direction of the court, at all times liable to be called to account or subject to be removed for omission or neglect of duty. The administrator brings no adversary into court, but must meet all who choose to come ”

“ The counsel themselves shrink from the conclusions to which their doctrines must inevitably lead, and attempt to show that such would not be their consequences; but they can not be disguised. If the rights of the creditors of Ludlow to have their debts collected under the remedial laws in force at the date of their contracts or at his death, were such as were withdrawn from subsequent legislation, by that clause of the constitution, inhibiting 'the passage of any law impairing the obligation of contracts,' and a sale could legally be made one day after the repealing law took effect ”

“ Now suppose the partial remedies of the common law existed after the organization of the state government; which is denied, because they are incompatible with the judgment and execution laws then in force, and in express violation of the act of February 11, 1805, for the distribution of insolvents' estates; still the simple contract creditors have no remedy, and the specialty creditors are left to scramble for priority; some one creditor, and often the least worthy, for such are apt to be most vigilant, monopolizes the whole. ”

“ He has shown that the right to contract is not conferred by society, but is a natural original right, brought by each individual into society; and that the obligation of contracts is not the result of positive law, but is intrinsic, and is conferred by the act of the parties. ”

“ In 1795, an orphans' court was established, and it was enacted that where persons die intestate and leave lawful issue, 'but not a sufficient personal estate to pay their just debts and maintain their children, it shall be lawful for the administrator or administrators of such deceased person to sell and convey such part or parts of the said lands or tenements for defraying their just debts, maintenance of their children, &c. ”

“ By the constitution of Ohio, the judicial power of the state is vested in a supreme court, courts of common pleas, and justices of the peace. The common pleas is invested with jurisdiction of all probate and testamentary matters, granting of administration, &c. ”

“ This latter statute passed January 15, 1805, and the 2d section contains a provision similar to that of the law, on the same subject, of 1792, with a variation of phraseology, using the word 'are,' instead of 'may or shall.' 'Out of the real estate, in such manner as executors and administrators are by law enabled to discharge the debts of deceased persons,' &c. It is urged that all the acts of the same session should be taken and considered together as one statute. ”

“ The one complains of the violation of his rights, either growing out of contract or torts committed; the other, defending himself against the injury complained of, either denies the contract or tort, or shows that the one has been satisfied, or the other justified. ”

“ At the session this law was enacted, the legislature undertook a revision of the old statutes; not with a view of forming a new code of laws out of new materials, for the course of legislation shows no intention to change the general principles of the laws ”

“ The act of the 18th of February 1804, repeals 'all laws contrary to its provisions,' but contains no provision relative to lands. So far from being repugnant, it rather contemplates the life of the act of 1795, as necessary to give complete effect to its 6th section, which requires the administrator to account to the heir, after paying the debts. The act 'directing the manner of executing, &c. wills and codicils,' repeals 'all laws on that subject.' Sec. 6. The act 'defining the duties of executors, &c. ”

“ Why then shall it be regarded as less sacred? Acts done under an existing law, are not impugned by its repeal, 6 Bac. Ab. 392. 12 Co. 7. 3 Dall. 379.
It is not in the power of either the judiciary or legislature, to render nugatory an existing judgment. 7 Johns. Rep. 485.
If this order can be regarded in the light of a mere power, it would not affect the conclusion to be drawn. A power in a will to executors to sell real estate, to pay debts, is a power coupled with an interest, and survives. 2 Johns. Ch. Rep. 1. 19. 12 Johns. Rep. 537. 14 Johns. Rep. 527.
This Court, in 7 Wheat. ”