Keeland v. Harper , 10 Ala. 178 ( 1846 )

COLLIER, C. J.

The act of 1839, “to abolish imprisonment for debt,” provides, that “it shall not be lawful to take the body of any person in custody to answer for a civil demand, except in cases of fraud, as hereinafter prescribed.” Further, “ If a plaintiff or his agent shall make oath before any person authorized to administer the same, of the amount of the indebtedness of any one to such plaintiff, and that such debtor is about to abscond, or such debtor has fraudulently conveyed, or is about fraudulently conveying, his estate or effects, or such person has money liable to satisfy his debts, which he fraudulently withholds, then, in that case it shall be lawful to arrest the body of such debtor, either by bail process, capias ad satisfaciendum, or other process to arrest the bodv, known to the law,” &c. [Clay’s Dig. 70, §§ 1, 2.] The act of 1827, enacts, that in “all cases when any plaintiff or plaintiffs may wish to hold any defendant or defendants to bail in civil cases, such plaintiff or plaintiffs shall give security for the costs of suit.” [Clay’s Dig. 72, § 9.]

In Toulmin v. Bennett & Laidlow, 3 Stew. & P. R. 225, it was held that the bail might show by plea to a scire facias that the plaintiff had not given security for costs, which the law requires as a condition upon which bail was to be demanded. See also, Wood v. Younge, 9 Porter’s Rep. 208. The authority and application of these cases is admitted, if the act of 1827 is still in force ; but it is insisted that this statute has been abrogated by the act oí 1839. This latter enactment contains no repealing clause, and the question is, whether it is not repealed by implication ? The law it is said, never favors the repeal of a statute by implication, unless the repugnance be quite apparent; such repeal carrying with it a reflection upon the wisdom of former legislatures, has been confined to the repealing as little as possible of precedent statutes. Hence if two statutes be seemingly repugnant, yet if there be no clause of non obstante in the latter, they shall, if possible, be so construed that the latter shall not impliedly repeal the first. Further, it is a well settled rule, that where there is such a discrepancy between two statutes, such exposition should be made that they both may stand together, if practicable. [Wyman, et al. v. Campbell, et al. 6 Porter’s Rep. 219; see also, Dyer’s Rep. 347; 11 Co. Rep. 63; 3 T. Rep. 669; 6 Cow. Rep. 437 ; 1 Gall. R. 150 ; 2 S. & R. Rep. 185; 4 G. & Johns. R. 1.]

We think the statutes in question are entirely reconcilable, and that the act of 1839, while it modified the affidavit which which was necessary to be made previous to issuing bailable process, did not dispense with security for costs as a prerequisite. We do not know how this conclusion can be more aptly illustrated than by placing the two statutes in juxtaposition, and stating the rule of construction as has been done ; and will not therefore add more on this point.

The counsel for the plaintiff in error was not understood to insist that the plaintiff had given security for costs, in such form as imposed upon the surety a legal obligation; and we think it altogether certain that the facts stated in the replication do not show a compliance with the statute of 1827, They demonstrate an intention to have given the security, yet in consequence of some oversight or neglect, it was never consummated. The signature of Dabbs immediately below the affidavit by the clerk, even though it was placed there under the circumstances alledged, will not authorize the rendition of a judgment against him as a security for the costs. Gould a court of law, consistently with the principles which govern it in the admission of evidence, permit the mistake to be shown, so as to fix a liability upon Dabbs ? We think not. This view is decisive of the case before us; and as the act of 1839 is by no means easy of interpretation, but alfords much room for conflicting opinion, we will for the present decline the consideration of the other questions in the cause.

We have but to add, that the judgment of the county court is affirmed.