Kinney v. Mallory

| Ala. | Jan 15, 1842

ORMOND, J.

The execution which issued on>the l’eplevy bond taken in this case, was quashed because in the opinion-of the Court, it was not such as,-the law authorised to be taken.

To the proper understanding of this question, a brief account of the old.law and the decisions upon it, is necessary.

■- The,first attachment law, passed in 1807, authorised the defendant in attachment, to replevy the property attached by giving special bail and pleading to issue. Toul. Dig. 17, § 14. The act of 1818, provided, that when the property of an absconding debtor was attached, that it -should not be replevied but by the execution of a bond, with condition to return the specific property attached, or to satisfy the judgment rendered against the defendant. Toul. Dig. 21. Whilst the law remain-ed in this state, the cases of Adkins v. Allen, 1 Stew. 130" court="Ala." date_filed="1827-01-15" href="https://app.midpage.ai/document/adkins-v-allen-6531277?utm_source=webapp" opinion_id="6531277">1 Stewart 130.; Sartin & Rodgers v. Weir, 3 Stewart & Porter, 421; Cummins v. Gray, 4 Stewart & Porter, 397, and Small v. Franklin, 2 Port., 493" court="Ala." date_filed="1835-06-15" href="https://app.midpage.ai/document/sewall-v-franlin-6529061?utm_source=webapp" opinion_id="6529061">2 Porter, 493, were decided, in which it was held, that the re, plevy bond, even-in the case of an absconding' debtor, w.as a mere bail bond ; that-it must be -taken payable to the sheriff, and could only be executed by the defendant ;in the attachment,’ his agent, attorney or factor,.

In 1833, a new compilation ofithe statute law was made by-Mr. Aikin, in which the attachment law was.¡remodelled,- and considerable-additions made to it. Aik. Dig. 37. By,the 11th section, it was declared that the goods should remain in the custody of the officer,unless the defendant, his or her agent,- or attorney, .or some.other person, replevy the same by giving bond” (fee. The condition of the bond was in substance, the same as required by the old law in cases of absconding.,debtors. The 13th section of the act, authorised the .defendant i-n attachment, at any time before final judgment entered or writ of inquiry executed, to-,replevy,the-estate attached, .on-giying special bail.-

. No judicial construction was given to this law, but doubts having arisen upon the apparent contradiction of the I Ith and 13th sections, and of the probable operations of the decisions made under the old law, the Legislature, on the 23d December, 1837, passed an act, the title of which, is to explain and amend the law in relation to attachments. The 6th section declares that hereafter no defendant in attachment, shall be permitted to replevy the property attached by giving special bail, but that “ every defendant in attachment, his agent, or attorney” shall be permitted to do so, by giving a bond with condition to deliver the specific property attached in satisfaction of such judgment as may be rendered against the defendant in attachment, and that upon a refusal to deliver such property on demand of the proper officer, the bond shall have the force and effect of a judgment.

It was clearly not the intention of the Legislature to repeal the entire attachment law, as found in Aikin’s Digest, by the act of 1837, and will therefore only be a repeal of the former when it is inconsistent with, or repugnant to it. The former law authorised a replevy by giving special bail; this act prohibits it, and is therefore a repeal. The former was silent as to whom the replevy bond was to be given; this act declares it shall be given to the plaintiff, and is to that extent, declaratory of the former. The act in the Digest, authorises the bond to be given by the “ defendant, his agent, or some other 'person,” and the last act omits the words some oilier person; is the omission to insert these words, a repeal of that portion of the act 1 The bond in this case, was made by persons who do not profess to be either the agents, or attornies of the defendant, and was made payable to the plaintiff, and the precise question is, whether since the act of 1837, a stranger can execute a replevy bond in a suit commenced by attachment.

■ These statutes are both affirmative in their character; and as already observed, so far as they are repugnant to each other, the latter will repeal the former, but so far as both may consist together, they-ought to be sustained. The law does not favor a repeal by implication, unless the repugnancy is very plain. Warden v. Arell, 2 Wash. 296; 6 Bac. Ab. 373, statute d. With these rules in view, we cannot say there is any repug-nancy between these statutes in the particular now under ex-animation. The object of the Legislature, does not appear to have been to repeal the 11th section of the law in Aikin’s Dig. as the condition of the bond is the same in substance, in both acts. The apparent mischief of the old law, so far as it can be gathered from the law of 1837, was not the condition of the bond or the persons authorised to execute it, but the control which the 13th section of the act in Aik. Dig. was supposed to exert over the 11th section, which by the decisions of this Court was converted into a common bail bond.

The object of this portion of the act of 1837, being as we have seen, to affect the construction or legal operation of the bond when given, it is not inconsistent with, or repugnant to its provisions, that a class of persons, not named in the law, may also execute the bond, under the authority of a former law. At least we cannot, according to the established rules of construction, say, that the mere omission to name them in the last law, is a repeal of the former law. The question before the Legislature appearing to be, not who shall execute the bond, but what shall be its effect when executed.

Let the judgment be reversed, and the cause remanded.