Scott v. Searles , 9 Miss. 590 ( 1844 )

Mr. Justice Clayton

delivered the opinion of the court.

This was a motion to dismiss the appeal .in this cause, for want of an appeal-bond.

A statute of this State directs that bond, with surety, shall be given upon obtaining an appeal, and by the decisions of this court in regard to persons prosecuting appeals in their own right, such bond must be given, or thé cause will be stricken from the docket for want of jurisdiction. But there is another statute in regard to executors and administrators, which exempts them from all liability beyond the assets of the estate. H. & H. 396, § 38. They are not liable to pay costs against the estate out of their own funds. To require them to give bond, 'with surety, upon an appeal taken by them, would frequently lead to a personal decree or judgment against them, and thereby contravene the express provisions of the last named statute. All the legislative enactments upon the same subject, must be construed together, and a harmonious interpretation adopted so far as practicable. An implied repeal of a statute will not be sanctioned, unless it be clearly in conflict with another. In this instance both statutes can have their full effect, by holding that the one operates as an exception, to the general rule created by the other, and that executors and administrators, as such, are not bound to give the appeal bond.

In this we do not claim any right to create exceptions to the terms of a statute, but only by a fair exposition to give efficacy to an exception created by the law itself.

A similar construction has been adopted in several of our sister States. See Linney's executor v. Holliday. 3 Ran. 1. But there they met the rule mainly upon the ground that the executor and administrator has already given bond to administer the estate according to law, and they hold that a remedy exists upon that bond, if the costs he not paid, and there are assets for the purpose.

The motion will he overruled.