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JULY 1829.

Winston

Moseley.

It is now to be inquired, whether the second section of the act refered to, has been repealed. The first section of an act entitled, “an act concerning the assignment of bonds, notes, &c., and for other purposes,” passed December 18, 1812, declares, “that all bonds, obligations, bills single, promissory notes, and all other writings, for the payment of money, or any other thing, shall and may be hereafter assigned by indorsement, &c;" and the same section gives to the obligor or maker, “the benefit of all payments, discounts and sets off, made, had or possessed against the same, previous to notice of the assignment." It is argued, that the second as well as the first section of the former act, is repealed by the provision here recited; that by the general expression "all other writings" is meant, cotton receipts, and every other security for the payment of money, or any other thing. If the statute of 1812, contained no other section than the one quoted, I should be prepared to yield to the justness of the argument. I know that a statute which deals in generalities, may repeal one, more particular in a description of the objects it provides for; but we are not permitted to decide the question by an application of that rule. There is a further provision in the act of 1812, which negatives the idea that the second section of the act of 1807, is repealed, and is considered as equivalent to an express declaration that that act is only repealed pro tanto, as it specifically relates to promissory notes. The section is as follows: "that an act entitled, “an act to enable the assignees of bonds, bills, or notes, to bring actions for the recovery of the same, in their own name, and for other purposes;' and also such parts of an act entitled (an act to render promissory notes and cotton receipts negotiable, and for other purposes,' as in any wise concerns promissory notes, be, and the same is hereby repealed.”

The first section is a repeal by implication of the first and second sections of the act of 1807; the one just recited is an express repeal to the extent it professes, and according to the rules of construction, is viewed as paramount, and exercising a controlling influence over the former; the one repeals by construction, and that construction is predicated upon the fact of a repugnancy in the two enactments; the other is an express declaration by the legislature, how far the first act shall be in operation, and according to correct legal reasoning, is tantamount to a

JULY 1829

Winston

Moseley.

declaration of the extent to which the act of 1807, is operative, and in force of meaning is equivalent to such an expression. To present the idea in another form, the second section of the act of 1812, specially declares a repeal of the act of 1807, in part, and as it respects its other provisions, it is to be construed as if it had expressly continued, or excepted them from the influence of the first section, and the maxim of expressio unius exclusio est alterius restricts the control which that section by implication would be entitled to exercise over it, to the express declaration of the second. Why have the legislature enacted this second section, unless it was intended to be effectual? If it had been intended to repeal the act of 1807, so far as it related to the negotiability of the securities therein mentioned, this was done by the first section, because it was so far repugnant to that act, and being posterior in time, is paramount in authority. It could nota have been done with a view to retain the third section, which prescribes the time, when cotton receipts shall be due and payable, when there is no time expressed, or any other section of the act of 1807. For these parts of that act do not conflict with the first section of the statute of 1812, and were not therefore abrogated by it. It will not do to determine that it was a senseless act of the legislature; if it be susceptible of a meaning, the maxim ut res magis valeat quam pereat requires that the Court should give to it that meaning.

Again; the first section, by the employment of general language as has been shewn, would operate a repeal of the first and section of the act of 1607, if it was not explained by the second which is special, but this explanation being manifest, the maxim that the law general must yield to the law special,” is a sufficient authority to determine that the first statute is in force to the extent I have endeavored to prove.

In the construction of statutes, there are certain rules fixed by legal adjudication, which, when adhered to, enable all Courts, and at all times, to give to them the same interpretation, but when these rules are departed from, the imagination, untramelled by principle, is permitted to guide the judgment, there is no uniformity, no certainiy in decision. These rules, I understand as deserving equal deference and respect with other portions of the common law, and are supposed to be in the contemplation of the law giver, when he gives his assent to the enactment of a law;

of

hence the propriety of adhering to them, that the will of JULY 1829. the legislature may be ascertained. In addition to the

Winston rules already considered, I will consider several others as applicable. In 6 Bacon, a it is said, "the most natural Moseley. and genuine way

construing a statute is, to construe one part by another of the same statute: for this expresseth the a Page 380. meaning of the makers, and such construction ex viscuibus actis. The same author says in the same page, “where a law is plain and unambiguous, whether it be expressed in general or limited terms, the legislature should be intended to mean what they have plainly expressed, and consequently no room is left for construction. But if from a view of the whole law, or other laws in pari materia, the evident intention is different from the literal import of the words employed to express it in a particular part of the law, that intention should prevail, for that in fact is the will of the legislature.'

The principles laid down in these quotations so fully and clearly express their own meaning, that they do not need the explanation and illustration of argument; by applying the reasoning employed, to the effect of the first and second sections of the act of 1812, considered separately and conjointly upon the act of 1807, the mind is drawn to the conclusion, that the negotiable quality of cotton receipts, imparted by the latter is not impaired by the former, and that the principles of commercial law, which give character to inland bills of exchange, must guide the opinion of the Court in determining upon the admissibility of the sets of offered by the defendant.

From the record it appears that the cotton receipt was assigned to the plaintiff, on the day on which it was made; that the defendant then had a note of the plaintifi's indorser, and afterwards, and before notice of assignment to the plaintiff, acquired another demand against him. It does not appear that the plaintff had notice, before the transfer to him of the cotton receipt, of the claim of the defendant to any set-off. According to mercantile law, the indorsee of a bill, indorsed before due, receives it on its own intrinsic credit: It is immaterial to him what may have been the state of accounts between his indorser and any of the other parties to it. If he is not cognisant of them, he takes it divested of all right of discount or setoff, which it was subject to in the hands of his indorser.

Cotton receipts, I have said, were governed by this rule; and the facts on the record, authorising its appli

Winston

JULY 1829. cation, this Court are of opinion, that the Court below

should have instructed the jury that the defendant's set

off was not allowable against the plaintiff. That Court Moseley. having given instructions different from the law as de

clared here, the judgment is reversed and the cause re-
manded.

Judge SAFFOLD, dissenting.
Judges CRENSHAW and White, not sitting.

Note.—This opinion was delivered after the cause had been retained by the Court, under an advisare.

Echols v. DERRICK.

A. purchased at sheriff's sale, without notice,a slave which had been preri

ously conveyed by deed in trust. The deed had not been recorded in the manner required by the statute of frauds. But, after the sheriff's sale, and before the expiration of twelve months from the date of the deed, the

trustee sold the property and executed the trust. It was beld. 1. That the necessity of registry in such case is dispensed with, the term

of twelve months allowed for registry not having expired. 2. That the adverse possession of Ă. under his purchase, made no difference,

and did not prevent the trustee from executing his trust.

WILLIAM DERRICK brought an action of trover in Madison Circuit Court, against William Echols, to recover the value of a slave named Lewis. At the spring term, 1827, of the Court, on the plea of not guilty, a verdict and judgment were rendered for the plaintiff, for $543 42, damages.

By abill of exceptions taken by the defendant at the trial below, the facts proven appear to have been as follows: One William Fleming, sold and delivered to one David Royster, certain slaves, among whom was one named Jim; and to secure the payment of the purchase money, Royster executed a deed of trust of the negroes in Fleming's favor. Royster being in possession, sold the slave Jim to Derrick, the plaintiff below. Soon after, Fleming, hearing of this, informed Derrick of his lien on the negro, which was the first notice Derrick had of its existence. Royster, then,

JULY 1829.

Echols

Derrick.

to secure Derrick in his purchase, executed, on the 29th of March 1823, a deed of trust of another slave named Lewis, (the slave sued for,) to one William Roundtree, as trustee, with condition that the slave Lewis should remain in Royster's possession till the title to Jim failed, in which case the trustee was to sell him, to reimburse Derrick for his loss. The parties resided in Madison, and both the deeds were recorded, but neither of them had been proved or acknowledged in open Court, as required by the statute of frauds, but were admitted to record on probate made before the clerk of the County Court only. After the making of those deeds, Echols, the defendant below, obtained a judgment and execution against Royster, and the sheriff, under this execution, levied on the slave Lewis, and sold him as the property of Royster, and Echols became the purchaser, obtained the possession, and has retained him ever since. After this sale, Royster failed to pay Fleming, and Jim was sold under the deed of trust to satisfy his claim, and Derrick bought him. Derrick then procured Roundtree, his trustee, to sell Lewis under his deed. At the sale of Lewis, Echols attended and gave notice of his claim and previous purchase, and forbid the sale; but the trustee proceeded, nevertheless, to sell him, and Derrick bought him also. The sales made under the deeds of trust, were both made within one year from their respective dates. Upon this evidence, the defendant ben low moved the Court to instruct the jury, that if they believed from the evidence, that the plaintiff had no actual notice of the deed of trust for the benefit of Fleming, when he purchased and obtained possession of the boy Jim, and paid his price to Royster, that the title of said Derrick was good against the lien of Fleming, unless his deed of trust had been proved or acknowledged in the County or Circuit Court of Madison, and recorded in twelve months after its date; and consequently, that the plaintiff purchased the boy Jim in his own wrong, and could not thereby acquire a right to sell Lewis under his deed. Also, that unless the deed of trust to Roundtree had been proved or acknowledged in the County or Circuit Court of Madison, and recorded in twelve months from its date, it was inoperative against a judgment creditor of said Royster. But the Court refused so to charge, and on the contrary, instructed the jury, that although the clerk of the County Court had no authority to receive probate or acknowledgement of the deeds in question, yet if,

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