173 N.W. 730 | S.D. | 1919
Plaintiff is claiming damages alleged to have been caused by the trespass of defendant’s .hogs. The complaint does not allege that the action was commenced within 60 days after the infliction of the damages, as is required by the provisions of chapter 244, Laws of 1907, nor does it allege that plaintiff had given the defendant notice of the damage and the probable amount thereof, as is required by section 3 of that act. Defendant demurred to the complaint upon the ground that it does not state facts sufficient to constitute a cause of action. The demurrer was sustained, and plaintiff' appeals.
“When a statute revises the whole subject of a former one and is clearly designed as a substitute, the former law., is repealed, although no express terms to that effect are used. Hillsborough County v. Manchester, 49 N. H. 57, 60; Opinion of Justices, 66 N. H. 629, 668-671, 33 Atl. 1076. The rule does not rest strictly upon the ground of repeal by implication, but upon the principle that when the Legislature makes a revision of a particular statute, and frames a new statute upon the subject-matter, and from the framework of the act it is apparent that the Legislature designed a complete scheme for this matter, it is a legislative declaration that whatever is embraced in the new law shall prevail, and whatever is excluded is discarded. It is decisive evidence of an intention to prescribe the provisions contained in the later act as the only ones on that subject which shall be obligatory.’ Roche v. Jersey City, 40 N. J. Law, 257, 262. The rule is the same when the common law is revised by statute. State v. Wilson, 43 N. H. 415, 419, 82 Am. Dec. 163; State v. Morgan, 59 N. H. 322, 324”
See, also, State v. Wilson, 43 N. H. 415, 82 Am. Dec. 163, 5 R. C. L. 815. (§7).
The provision found in section ,3 c. 244, Laws of 19.07, requiring that notice be given to the owner of trespassing animals, before commencing action, is based upon reason. In the absence
The order appealed from is affirmed.