Branch Bank at Decatur v. Jones

5 Ala. 487 | Ala. | 1843

ORMOND, J.

The principal question in the case is, whether there was sufficient notice of the time of making this motion. — ■ The solution of this question depends on the construction of the two statutes which have been cited. In 1821, an act was passed, giving to the holders of bank notes, a summary remedy, if the note was not paid on presentment, and authorized a judgment by motion against the bank, on ten days’ notice to be given, to be executed and returned by the sheriff, making the protest of a notary evidence of the fact of presentment to the bank for payment. [Aik. Dig. 54.]

In 1832, the Branch Bank at Decatur was chartered. By the 8th section of the charter, authority was given to the bank to recover from any one indebted to it, by motion, in the circuit or county court of the county in which the bank is situated, giving thirty days notice of the intended motion, upon producing the certificate of its president that the debt is really and bona fide the property of the bank. [Aik. Dig. 72.] The 13th section declares “ that the remedy for the collection of debts shall be reciprocal for and against the bank,” which is a literal transcript from the constitution of this State, under the head of « Establishment of Banks.”

We entertain no doubt that the act of 1821, although passed long anterior to the charter of the Decatur Bank, would operate directly on it, so as to give the remedy there provided, to the holder’s of bills against that bank. .So, on the other hand, we think it equally clear that if the act of 1821 was not in existence, the effect of the 13th section of the charter of the bank would be to give the creditors of the bank the same remedy against the bank, and to be exercised in the same mode which the bank had against its debtors. The question then to be decided is, whether the act of 1821 was repealed by the 13th section of the charter.

It is an established rule in the construction of statutes, that the law does not favor a repeal by implication ; that where two statutes are so repugnant to each other that they cannot stand together, the former must yield to the latter, but so far as both may consist together, both will be sustained. [6 Bac. Ab. 373; Kinney v. Mallory, 3 Ala. Rep. 626.]

. It is to be observed, that although these statutes were passed at different times, they were both passed, on and re-affirmed by the Legislature at the adoption of Mi-. Aikin’s compilation of the laws; it appears therefore, that the Legislature considered both these enactments in force, or to speak more accurately, we must understand it as a declaration that the Legislature did not understand that they were wholly repugnant to each other, as one of the principal objects of the Digest was to exclude from the authorized statute book all repealed laws.

. The only point in which these two statutes are repugnant to ■each other, is in the length of time which was required to elapse after notice before the court was authorized to render judgment, the first law requiring only ten days, the last thirty days’ notice, and' as it is impossible that effect should be given to both in this particular, the former must yield to the latter, and is as to the length of notice, repealed.

Although we have observed upon the fact, that the Legislature, by the adoption of Mr. Aikin’s .Digest, re-affirmed their opinion, that the two acts were not wholly repugnant, yet when laws found on the statute book are repugnant to each other, we know of no other mode of ascertaining which must yield in cases of this kind, but by referring to the dates of their passage. [See 4 Porter, 189.]

It results from this view that the judgment which was rendered before thirty days had elapsed, after the notice, must be reversed, and it thei-efore becomes unnecessary to consider the other; point made in the cause.