White v. Johnson

23 Miss. 68 | Miss. | 1851

Mr. Justice Clayton

delivered the opinion of the court.

The only point in this case is, whether since the statute of 1844, amendatory of the acts of limitations, there is any saving of the rights of infants, whose suits have not be.en brought within the time limited by that act. The question arises in an action of trover.

The act of 1844 does not contain the usual saving clause in favor of those who labor under disabilities; the doubt, therefore is, whether the saving in the previous acts is still in force, or has been repealed.

It may be first observed, that the statute of 1844 does not purport to introduce an entirely new series of enactments, and to be a perfect and complete system within itself. It only professes to be an amendment and modification of the former acts on the subject. It shortens the period of limitation in regard to most actions, and contains a clause repealing “ all acts and parts of acts in conflict with, and contrary to, its provisions.”

Then the question is, Whether the 94th section of the act of 1822, H. & H. 569, which contains the usual saving clause, is repealed, or is still in force. A series of acts upon one subject, are to be construed as one whole; and where in a subsequent statute there is no express repeal of a former, the court will not hold the former to be repealed by implication, unless there be a plain and unavoidable repugnancy between them. See Planters Bank v. The State, 6 S. & M. 628. In this instance there is no express repeal of the saving clause, nor is there any such conflict between the provisions of the act of 1844 and the saving clause, contained in the previous act, as makes a repeal by implication necessary. It is certainly a more just .exposition of the intention of the legislature, to hold the previous saving clause to be in force, than to decide that it was their intention to cut off a class of rights, which have generally appeared to be the especial objects of their care and favor. A total change of policy in this respect, without any conceivable reason, cannot be presumed. These considerations could have no weight if a contrary intention had been expressed, but in the absence of such expression they are entitled to influence.

The court below sustained the demurrer to the replication of infancy in this case, and gave judgment for the defendant. This was error, for which the judgment must be reversed and the cause remanded for further proceedings.

Judgment reversed.