Harrison v. Blair

1 Va. Col. Dec. 165

• Court: General Court of Virginia
• Decided: July 1, 1731
• Status: Published

Opinion

The Pit. brought an Action ag’t the Deft, as Ex’or of one Hollinghurst upon an Indebitatus Assumpsit of the Testor. To which the Deft, with leave of the Court Pleaded 3. Pleas

1. That the Testor, did not Assume

2. That he did not Assume within 5 Years

And upon these two Pleas Issues were joined and found against the Defendant

The third Plea was that the cause of Action did not accrue within 3 years And at the time of this Plea pleaded there was an Act of Assembly, whereby Actions upon Account are Limitted to 3 Years

But in the meantime that Act was repealed by Proclamation and then we Demurred. And the Question is Whether a Repealed Act shall be a Barr, being in force when the Plea was Pleaded

If a Repealed Act had never been held in this Court to be a bar I think this point wou’d not bear an Argument

Three Years was a bar only because this Act made it so. When the Act is made null it can be no longer a bar, This is common Sense A Law is always Repealed for taking away some Mischief which that Law Introduced, And to subject us to this Act, it is void, is unreasonable and a Contempt of the Authority that repealed it

The Lord Chief Justice Vaughan in his Reports 325. Hill vs Good Says, that an Act Repealed is of no more effect than if it never had been made.

The 28. H. 8. s. 7. makes all Marriages within the Levitical Degrees void The 28. H. 8. 6. 16. makes void all Dispensations of the See of Rome

The 1. & 2d W. & M. C. E. Repeals these Statutes or some of them The 1. Eliz. Repeals that and revives the other If a Marriage had happened while the Stat. of W. & M. was in force after the 1. of Eliz. it becomes void. So much may be inferred from that Case But there is a Case in the Year Book 4. H. 7. 10. & 10. H. 7. 22. which was thus A man Seized of Lands was attainted of High Treason by Parliament

[166] The King granted his Lands: Afterwards the Act of Attainder was Repealed and the Party restored, But in the meantime the Person Attainted Committed Trespass upon the Patentee for which he brought his Action And it was Adjudged by all the Justices that the Action did lie And Brian say’d the Deft, might have Trespass against the Patentee And the Reason is that repeal of an Act of Parliament puts everything in the same Condition as if no Act had never been made

The other side Admitted the Law to be so

And the Court gave Judgment for the Pit. una voce