Oliver v. . Perry , 61 N.C. 581 ( 1868 )

Reade J.

The ordinance of June 23d 1866 “To change the jurisdiction of the courts” &c., provides that the time elapsed since 1st September 1861, barring actions on suits, or presuming the satisfaction or abandonment of rights, shall not be counted. It also provides, that the General Assembly shall have no power to repeal, alter'or modify the ordinance. It is insisted that the ordinance restricts the counting of time only up to the date of its passage; and that, after its passage, time might be counted; and that two terms having elapsed without making the executor a party, the suit abated. And such was the opinion of his Honor.

It is insisted however for the plaintiff, that, although that would be the true construction of the ordinance, yet the General Assembly extended the provision against counting time up to January 1870, (Act of 1867, ch. 17, s. 8) and that therefore the suit did not abate. To this it is objected, that the ordinance forbids the General Assembly to do this. And then the plaintiff says: Supposing that to be its import, yet the ordinance, not being organic but only legislative in its character, had no more force than legislation by the General Assembly; and that, therefore, the latter had the power to alter the ordinance notwithstanding the prohibition. Mr. Haughton favored us with an able argument in support of that position. But it is not necessary that we decide it, because we think that the act of the General Assembly in no way conflicts with the ordinance. The ordinance says in substance, that time shall not be counted up to the date of its passage. It does not say that time shall or shall not be counted after its passage. It leaves that as an open question subject, of course, to legislation. Then the legislature steps in and says, substantially, that time shall not be counted from the passage of the ordinance up to January 1870.

We think that the act does not conflict with the ordinance and was not prohibited by it, and that the effect of the act is to prevent the counting of time up to January 1870, and therefore, that the suit did not abate by the lapse of two terms.

Per Curiam There is error.