20 Mo. 354 | Mo. | 1855
delivered the opinion of the court.
The question in this case is, whether the third section of the third article of the code of procedure repeals so much of the third section of the statute concerning bonds and notes, as provides that the assignment of a note, expressed “ to be paid without defalcation or discount,” passes the instrument to the assignee, exempted from that defence.
There is no express repeal, and if repealed at all, it is because the provision of the code is inconsistent with the provision of the old law concerning bonds and notes. In order to come to a correct conclusion upon .this subject, it will be proper to refer to what our law was in reference to these matters, when the new code was adopted.
We may remark that this new system of procedure did not originate here, but in New York ; and it is believed that there, all debts, other than negotiable paper debts, were only assignable in equity; and therefore, this provision of the code produced no change there in the rules of property, and was probably made, out of the abundance of caution, lest the change in relation to the bringing the- suit in the name of the assignee should be construed to have the effect of annulling these equitable defences of the debtor ; and this is the more probable, as in New York this was the only practical effect of the provision.
Here, however, the proposed construction of the provision changes a rule of property. An assignment that, under the old law, passed a debt exempted from set-offs accruing after the assignment and before notice, is, by the proposed construction, to pass it subject to such set-offs. It is a wise rule, in the construction of statutes, not to favor a repeal of the old law by implication, and if both acts can be so construed as to stand together, it is the duty of the courts to adopt such construction. If it were the intention of the legislature to effect this change in an old rule of property, no reason is seen why,
The effect of the opinion is, that the judgment must be reversed,-and the other judges concurring* it is reversed accordingly, and the cause remanded, to be re-tried in conformity to what is here declared to be the law of the case.