522 SNOWDEN v. SNOWDEN.—1 BLAND.

were not at the time resident of the place from which they were
returned. This is another instance wherein the principle of desue-
tude has been avowedly set up against an unrepealed legislative
enactment. 2 Hall Mid. Ages, 156. And our own *Act,
556 1747, ch. 3, s. 10, which positively prohibits clerks and reg-
isters from suffering the papers and records to be taken out of their
offices, appears to have been so long and so generally disregarded
as to have fallen into oblivion. 1832, ch. 302, s. 1.

These precedents would seem to sanction the position, that a
positive legislative enactment may be virtually repealed by a long,
general, and uninterrupted course of practice. But they are pre-
cedents which I should feel a great repugnance to adopt and
enlarge upon. I hold it to be my duty to treat the acts of my pre-
decessors with respect; and to yield implicit obedience to my
superiors; yet I cannot lose sight of the sphere assigned to the
judiciary, and allow myself, by any suggestion arising from the
case, or by following any lightly considered precedent, to overstep
the limits constitutionally prescribed to the judicial department to
which 1 belong. No Judge or Court, either of the first or last re-
sort, can have any right to legislate; and there can be no differ-
ence between the power to declare an Act of Assembly obsolete,
and the power to enact a new law. The power to repeal and to
enact are of the same nature. I shall therefore always consider
an express provision of a constitutional Act of Assembly as an
authority superior to any usage or adjudged case whatever.

The first enactment upon this subject, 1797, ch. 114, s. 5, is
strictly and literally applicable to the taking of an answer of an
infant abroad in a partition ease, such as this is; and that Act
has, as it would seem, been since much extended. 1818, ch. 193,
s. 11 and 12. (h) Hence I hold myself imperatively *bound
557 by the legislative rule thus laid down. But precedents have

(h) BURD v. GREENLEAF.—It was objected in this case, that all the parties
were not before the Court. Publication against the infant heirs of a defend-
ant had been made according to the Act of 1799. c. 79, s. 1 and 4, instead of
serving a subpoena upon them.

KILTY, C., February, 1806.—It appears, that the General Acts of Assembly
for regulating the Chancery practice do not extend to infants, but that par-
ticular Acts have been passed for the purpose of binding them; as in the
cases of contracts by their ancestors, mortgages, debts, partition, &c. The
first section of the Act of 1795. ch. 88, did not, as the complainants have
contended, extend to infants, but provided for publication against persons
of full age. The Act of 1799, ch. 79, put infants on the same footing with
other defendants, excepting reserving at all events the liberty of appearing
within eighteen months. This section is not restricted to laws within the
first section of the same Act, but is applicable also to the first section of the
Act of 1795, or any other general Act. Let us examine the intention of the
two Acts. The Act of 1795 permits an appearance and re-examination