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Hinton v. Hinton and others.
could make a safe estimate in regard to the solvency of estates. Moved by considerations of this nature, the legislature in 1863 passed an act providing "that, in computations of time for the purpose of any statute limiting any action, or any right or rights, or making any presumption as to payment of bonds, or satisfaction or abandonment of any equity, &c., the time which had elapsed since 20th May, 1861, and which should elapse up to the close of the war, shall not be counted;" and in 1866, after the close of the war, it passed an act providing that in all such cases time should not be counted up to the 1st January, 1867. We are inclined to the opinion, from the general wording of these two acts, and the obvious policy of legislation during the war and the troubled state of things which succeeded it, that the statute limiting the time in which widows were required to enter a dissent, comes within their operation, and that time should not be counted from 20th May 1861, up to 1st January 1867, in respect to widows who seek to set up a right of dower at common law; see Morris v. Avery, ante 238, as to the Abatement of suits; Neely v. Craige, ante 187, as to Dormant judgments; by which it is settled that such ordinances and statutes, during the war and since, "confer no new rights, but preserve existing ones." We are, however, relieved from the necessity of declaring an opinion upon that question of construction, for the Legislature in February 1866, out of abundance of caution, passed an act by which, in express words, widows are allowed further time to dissent, and which embraces our case; and in June 1866, the Convention by an ordinance gives further time for a widow to dissent, notwithstanding she may have qualified and acted as the executrix of her husband, thus by a plain and necessary implication recognizing and ratifying the act of February 1866; for, if a widow who has qualified and acted as executrix has a right to enter her dissent and further time is given to her, a fortiori,
Hinton v. Hinton and others.
such further time is given to widows who have not that objection to encounter.
So we take it to be clear that the act of 1784 was a "statute of limitations," barring the right of dower, and that the act of February 1866 expressly embraces our case, and will proceed to the last point: Did the Legislature have power to pass the act? putting out of view the effect of the ordinance of June 1866 to prevent complication.
It is said the Legislature has not the power to interfere with "vested rights," and take property from one and give it to another! That is true; but these devisees took the land subject to the widow's common law right of dower. The act of 1784, consulting public policy, limited the time in which widows should set up claim to dower. The power of the Legislature to do so is unquestionable. The act of February, 1866, consulting public policy, provides that the time from 20th May 1861 up to the passage of the act, shall not be counted. Is not the power of the Legislature to do so equally unquestionable? There is in this case no interference with vested rights. The effect of the statute is not to take from the devisee his property and give it to the widow, but merely to take from him a right conferred by the former statute, to bar the widow's writ of dower, by suspending the operation of that statute for a given time; in other words, it affects the remedy and not the right of property. The pow er of the Legislature to pass retroactive statutes affecting remedies is settled. Suppose a simple contract debt created in 1859. In 1862, the right of action was barred by the general statute of limitations, which did not extinguish the debt, but simply barred the right of action. Then comes the act of 1863, providing that the time from 20th May 1861 shall not be counted. Can the debtor object that this deprives him of a vested right? Surely not. It only takes from him
Hinton v. Hinton and others.
the privilege of claiming the benefit of a former statute, the operation of which is for a season suspended.
So the act of 1784 does not extinguish the widow's common law right of dower, but simply bars her right of action, unless she enters her dissent within six months and makes claim to her right of dower within that time. Then comes the act of February 1866, providing that she shall have further time. Can the devisee object that this deprives him of his land? Surely not. It only takes from him the privilege of claiming the benefit of a former statute, whereby to bar the widow's common law right.
In Phillips v. Cameron, 3 Jon., 390, the power of the Legislature to pass a retrospective statute is assumed, when the intention to give it a retroactive operation is plainly expressed, and that case went off on the ground that there such was not the intention. In our case, the statute immediately bearing on it, although and the statutes referred to, express the intention as plainly as words can do it.
Judgment reversed. This opinion will be certified to the end, &c.
Foit v. Bank of Cape Fear.
W. L. FORT, Adm'r of Absalom Smith, v. BANK OF CAPE FEAR.
A bank which in 1860 gave to a depositor a certificate setting forth that he had deposited a certain sum "in current notes of the different banks of the State," and that the sum deposited is "payable in like current notes to the depositor, or to his order, on return of the certificate," is liable for the whole amount, with interest from the date of the demand, in currency of the United States.
(Hamilton v. Eller, 11 Ire. 276, and Lackey v. Miller, ante 26, distinguished and approved.)
ASSUMPSIT, (with two counts, one special, the other indebitatus,) tried upon a case agreed before Barnes, J., at December Special Term 1867 of the Superior Court of WAKE.
On the 26th of May 1860, the plaintiff deposited with the defendant, at its branch in Raleigh, the sum of $180 in current notes of different banks of the State, and received from the cashier the following certificate:
"BANK OF CAPE FEAR, Branch at Raleigh, N. C., $480 26 May, 1860. W. L. Fort, Esq., Adm'r., has deposited in this bank the sum of four hundred and eighty dollars in current notes of the different banks of the State of North Carolina, which sum is payable in like current notes to said depositor or to his order, on return of this certificate.
W. H. JONES, Cashier."
On the 23d day of February 1867, the plaintiff presented the certificate at the office of the, branch bank at Raleigh and demanded payment in the currency of the United States, or in bank notes of the different banks of the State current at the date of presentation. The defendant refused to make such payment, but offered to pay in its own bank notes, or
Fort v. Bank of Cape Fear.
in the notes of the different banks of the State, current at the time of deposit. The plaintiff declined to accept such notes, and brought this suit.
It was admitted that the notes of the different banks of the State, including the defendant, current at the date of de. posit, were not current at par at the time of demand and have not since been so current; also, that at the date of demand and since, the notes of the bank of Cape Fear were worth twenty-six cents in the dollar in the currency of the United States, and that the average value of the different bank notes of the State current in 1860, is eighteen cents. It was further agreed that his Honor should render judgment for such sum as he should be of opinion the plaintiff was entitled to recover. The court gave judgment for $124 80, with interest from February 23, 1867, and the plaintiff appealed.
Haywood, for the appellant.
The true construction of the contract is, to pay $480 in currency of the United States, to be discharged by payment of such a sum in bank notes as will equal $480 in United States currency. Lackey v. Miller, ante 26; Hamilton v. Eller, 11 Ire. 276.
The measure of damages for breach of contract to pay "like current bank notes," is $480, and interest.
A promise by the bank, in writing not evidencing a special deposit, to pay in current bank notes of other banks, &c., is ultra vires and void. Rev. Stat., 2, pp. 37 to 56; Act of 1854, (Priv.) c. 77, p. 25; Rev. Code, c. 36, s. 2; Ang. and Am., ss. 110 to 112; Ibid, s. 256.
Though the written contract be void, the plaintiff can recover upon the indebitatus count for money had, &c. Ang. and Am., s. 265, and cases cited, n. 4.