11 Ala. 410 | Ala. | 1847
By the act of 1820, the taker, up of an es-tray, was required to pay one half the appraised value to the clerk of the county court, and upon his failing to do so within twelve months from the time of the appraisement, was subjected to an action of debt by the clerk, for the entire amount of the appraised value of such estray. [Clay’s Dig. 550, § 6.]
By the act of 1823, the taker up of an estray, was required upon the value being ascertained by appraisement, to execute a bond for the amount of the appraisement, payable to the clerk and his successors in office, with condition to pay the clerk half the amount of the appraised value of the stray, unless the same was proved away by the owner, or owners thereof, within twelve months from the appraisement; or unless it escaped without the connivance or neglect of the taker up.
There is doubtless much force in the argument, that such is the fact, as otherwise it would be impossible for the clerk to know when to commence a suit, but we do not see how a construction can be put upon the law, in opposition to the clear and explicit language of the condition of the bond; which declares that the obligor shall only be compelled to pay one half the appraised value of such strays as are not proven away, die, or escape. To hold that the obligor was liable beyond the condition of his bond, in virtue of a previous statute, is entirely unauthorized by the established rules for the construction of statutes. If there is, as there seems to be, a palpable incongruity between them, the former must yield.
It might be worthy of consideration, whether the defendant could exonerate himself from the payment of costs, by bringing himself within the condition of the bond, unless he had previously given the clerk notice that the stray had been proven away, died, or escaped; as the clerk, in bringing the suit, is merely performing a public duty cast on him by law.
Let the judgment be affirmed.
