Sherfy v. Argenbright.

had a value in fact, and were actually used by the borrower, in the payment of his debts, it was held, that the defense was not sufficient. It is, therefore, clear, that the two cases, in 8 Wallace, are well sustained by authority on this point, and we are also well satisfied with the manifest justice and reason of the rule.

We are fully impressed with the importance of uniformity of decision, acknowledge the soundness of the doctrine of stare decisis, and admit the evils that attend a constant fluctuation in judicial opinion. Precedents should, as a general rule, be duly regarded and implicitly followed. But there are cases that have been so ill-considered, and that are so palpably wrong, that it becomes the duty of a succeeding court to overrule them. Such cases have been frequently overruled, both in this country and England; Mr. Greenleaf has published an entire volume of them; and Judge KENT said that he knew more than one thousand cases that had been overruled, doubted or limited in their application. The language of Sir William Jones, in his essay on bailment, is, therefore, too strong, when he says, "no man who is not a lawyer would ever know how to act; and no man who is a lawyer would, in many instances, know what to admit, unless courts were bound by authority, as firmly as the pagan deities were supposed to be bound by the decrees of fate." 1 Kent, 477.

Where a decision, or a series of decisions, have established a rule of property, and, more particularly, a rule affecting title to real estate, which has become generally known and been acted upon, such a land-mark should not be disturbed. But where there is no such restraining consideration; where the thing determined is of recent origin, not supported by former precedents, but contrary to the highest and most respectable authorities of other states, and of the United States; where the decision has not met the approbation of the profession at large, nor of the people; where it is clearly repugnant to the principles of common justice, and has had the practical effect to enable one man to take an undue advantage of another; such decision, or series of decisions, should be examined without fear and revised without reluctance, rather than have the character of our law impaired, and the beauty and harmony of the system destroyed by the perpetuity of error. 1 Kent, 477; HAYWOOD, J., in Barton v. Shall, Peck, 231, 232.

For these reasons we feel warranted in departing from the past course of decisions in this state, on the "confederate money ques

Girdner v. Stephens.

tion," and in adopting the doctrine asserted with so much force of reason in the national tribunal of last resort. In doing this, we, in fact, produce uniformity of decision. We but make the rule the same in our state courts with the rule in the federal courts sitting in our state, and with the courts in our sister states. In doing so, we do no one any harm. The question is not one of that character that disturbs a land-mark of property, or a right vested or acquired, under the former decisions; at least not any that is founded in justice or right. It is true, many demands of this character have passed into judgment against them, for which there is now no remedy; but that is no reason why other parties should be denied their right to receive the actual value of that which they parted with, to another's profit to that extent, at the time and place.

The state of the pleadings in this cause do not require any adjudication as to the measure of damages to be recovered in an action founded upon a contract to pay confederate notes, and we consequently make none.

The decree of the chancellor will be reversed and the bill dismissed.

NOTE. The validity of contracts made within the territory of the "confederate states" during the war, based upon confederate money as a consideration, was also maintained by the same court at the same time in the case of Naff v. Crawford, 1 Heiskell, 111.- REP.

GIRDNER, plaintiff in error, v. STEPHENS.

(1 Heiskell, 280.)

Constitutional law - Statute of limitation-power to divest right under.

After a cause of action has become barred by the statute of limitation, a defendant has a vested right to rely upon that statute as a defense, and neither a constitutional convention nor the legislature has power to divest the right, and revive the cause of action.

THIS is an action of trespass, for an alleged assault and battery and false imprisonment, instituted by the defendant in error, against the plaintiff in error, in the circuit court of Green county, on the 9th of April, 1865. The defendant filed a plea of not guilty, and at the same time two other pleas, to wit: 1st. That he was not

Girdner v. Stephens.

guilty within one year next before the commencement of the action; and, 2d, That he was not guilty within one year next before the adoption of the schedule of the amended constitution. The defendant in error filed a demurrer to the last two pleas, which was sustained by the court, and this appeal was taken.

R. M. Barton, for plaintiff in error.

Ingersoll, for defendant.

J. T. SHIELDS, Special J. It appears, from the face of the declaration, that the alleged trespass was committed on the 11th of September, 1861, more than three years before the suit was instituted; and by our statute of limitation of actions (Code, 2772), actions for injuries to the person and false imprisonment are required to be commenced within one year from the time the cause of action accrued. But it is insisted, in argument, that, by section 4 of the schedule to the "amendment to the constitution," adopted on the 22d of February, 1865, it is expressly provided that "no statute of limitations shall be held to operate from and after May 6, 1861, until such time hereafter as the legislature may prescribe." This is true, and by the act of May 30, 1865, chapter 10, section 1, it is enacted. "that no statute of limitation shall be held to operate from and after May 6, 1861, to the 1st day of January, 1867, and from the latter date the statute of limitations shall commence their operation, according to existing laws, and the time between the 6th May, 1861, and the 1st day of January, 1867, shall not be computed." And the new constitution of the state of Tennessee, ratified March 26, 1870, schedule, section 4, contains the following provision on the same subject: "The time which has elapsed from the 6th day of May, 1861, until the 1st day of January, 1867, shall not be computed in any cases affected by the statutes of limitation."

It is to be borne in mind that the alleged cause of action, in the case before us, accrued in September, 1861; that the statute of limitations, applicable to the appropriate action for the redress of the injury, was one year, so that by the law in force at the time, the action was barred, and the plaintiff in error had a vested right to plead and rely upon the protection of the statute, in September, 1862, long before the action was instituted, and long before the said amendments, the said statute and the new constitution were adopted and enacted.

Girdner v. Stephens.

We are, therefore, under the necessity of determining whether a convention or a legislature has the power, after a cause of action is clearly barred, and the party has a clear vested right to plead a statute of limitation in his defense, by a retrospective statute, ordinance or resolution, to divest the right to the defense and revive the right to maintain the action.

The principle in the government of England that the parliament is omnipotent does not prevail in the United States, though, if there be no constitutional objection to a statute, it is with us absolutely binding; but, under our written organic law, ascertaining and limiting the powers and duties of the several departments of the government, state and national, an act of the legislature may be void, as in contravention of the constitution.

The law with us must conform, in the first place, to the constitution of the United States, and then to the constitution of its particular state, and, so far as it is an infraction of either, it is void. The courts of justice have the right, and it is their imperative duty, to subject every law to the test of the constitution, first of the United States, and then of their own State, as the supreme law of the land. Every act of the legislature, contrary to the true intent and meaning of the constitution, is absolutely null and void; and the judicial department is the proper power in the government to determine the question. 1 Kent, 485, 486. This is an elementary and familiar principle in our government. Nor does a convention, convened by the people of a state, stand on any higher ground. A convention, called for the purpose of amending, revising or framing a new state constitution, has no more power to violate the national

constitution than has a state legislature. If it were so," says Judge TURLEY, "there would be no safety under our form of government in times of excitement." Union Bank of Tennessee v. The State, 9 Yerg. 490. The power of the judiciary to bring to the test of the constitution of the United States the action of a convention has been frequently exercised. Cummings v. Missouri, 4 Walk 595.

It is clear, then, that the action of the two conventions, and the act of the legislature upon the question under judgment, stands upon the same ground, and are in precisely the same category with reference to their validity under the constitution.

We proceed, then, in the exercise of our unquestionable right, and in the discharge of our most solemn and bounden judicial duty, to

Girdner v. Stephens.

determine the question whether the two conventions and the legiзlature had the power, under our fundamental laws, to deprive the plaintiff in error of the defense which had accrued to him under the law of the land, as it was clearly in force at the time.

In view of the frequency with which this and analogous questions have come before the judicial tribunals of the country, and of the elaborate and exhaustive discussion which they have undergone; and holding it our solemn duty to be guided by those principles of interpretation and construction which the sages of American constitutional law have adopted and applied, and that their conclusions are to be received with the highest respect, we shall not attempt any protracted discussion, but content ourselves with stating and declaring the law as it has been handed down to us by the great founders and expounders of the constitution who have gone before us, and whose memory is revered for their purity of purpose, their love of constitutional liberty, far-seeing wisdom, and profound learning.

A statute retrospective in its character and operation, directly affecting and divesting vested rights, is very generally considered, in this country, as founded on unconstitutional principles, and consequently inoperative and void. 1 Kent, 453, citing Osborne v. Huger, 1 Bay, 179; Ogden v. Blackledge, 2 Cranch, 272; Bedford v. Shilling, 4 Serg. & Rawle, 401; Society v. Wheeler, 2 Gall. 105; Colony v. Dublin, 32 N. H. 432; Torry v. Corliss, 33 Me. 333; and numerous other authorities.

"It seems to be the general opinion," says Judge STORY (2 Com. on Con., § 1399), "fortified by a strong current of judicial opinion, that, since the American revolution, no state government can be presumed to possess the transcendental sovereignty to take away vested rights of property."

"It is to be deduced as a correct conclusion from the decided cases," says Sedgwick in his excellent work on statutory and constitutional law, "that a statute which, without some controlling public necessity, and for public objects, seeks to interfere with vested rights of private property, is beyond the true limit of legislative power." P. 177.

The power to pass such laws has been almost universally denied to exist in this country, under our written constitutions, interpreted according to their spirit and true meaning; and such is also the sentiment and opinion of the philosophical and text-writers of other countries. Puffendorf says, "a law can be repealed by the