556 SNOWDEN v. SNOWDEN.

act,(d) which positively prohibits clerks and registers from suffer-
ing 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.(e)

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positive legislative enactment may be virtually repealed by a long,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 I belong. No judge or court, either of the first or last
resort, 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 autho-
rity superior to any usage or adjudged case whatever.

The first enactment upon this subject(y) is strictly and literally
applicable to the taking of an answer of an infant abroad in a par-
tition case, such as this is; and that act has, as it would seem,
been since much extended, (g) Hence I hold myself imperatively

(d) 1747, ch. 3, s. 10.—(e) 1832, ch. 302, s. !.— (/) 1797, ch. 114, s. 5 —(g) 1818,
ch. 193, a. 11 & 12.

BURD v. GREENLEAF.—It was objected in this case, that all the parlies were not
before the court. Publication against the infant heirs of a defendant had been made
according to the act of 1799, ch. 79, s. 1 & 4, instead of serving a subpoena upoi
them.

February, 1806.—KILTY, Chancelloi\—It appears, that the general acts of Assem-
bly for regulating the chancery practice do not extend to infants, but that particular
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 pro-
vided for publication against persons of full age. The act of 1799, ch. 79, put infanta
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 within eighteen
months, and the first decree is of course not final. The reason of which might be,
that there could lie no certainty of the absent defendant having seen the publication.