White v. Hunt

Kinsey, 0. J.

The question before the court seems to turn upon the construction of several acts of assembly. Within my knowledge, no judicial construction has ever been given to the act of 1782, but my brother Boudinot recollects a case in which the act of February 18, 1747-8, which' is referred to in the subsequent act, was held to .extend to.cases of tort as well as of contract. The word in the act is demand, and this Lord Coke, in his 1st Institute, considers as a word of extensive signification, and including everything which may be demanded by suit.

In the construction of the acts of the legislature, it has ever been held a sound and wholesome rule, that when divers laws are made relating to one subject, the w'hole must be considered as constituting one system, and mutually connected with each other.

*509 Another rule is, that when the legislature have made use of a particular expression, and given to it a plain and precise signification, the same word, when used in other proceeding’s, ought, unless the contrary appears manifestly right, to receive the same construction. It is unreasonable to presume that the legislature intended by the same words, to convey different ideas.

In applying these rules, it is to be remarked, that in the law of 1747-8, the w'ords used are, “any suit or action whatsoever.” The expression is general, and cannot, by any rule of construction, be limited to actions of contract. But every doubt must be removed when the exceptions pointed out in this act are referred to, and its operation is expressly restricted to actions in which the title to real estate is not in controversy. The legislature, by specifying this exception, have negatived the idea of any other, and we cannot presume to alter or deviate from their language.

The next act to which it seems material to refer, is that of 1782, on the fifth section of which the question depends; that act makes use of the same comprehensive wrord “ demand,” and adds, that “ if any person shall recover by verdict or judgment, less than £50, he shall not recover costs.” Upon this clause it is to be observed, that the word “or” is disjunctive, and the phi-ase, as it stands, equally embraces verdicts on trial and judgments by default.

This construction is strengthened by a reference to some other acts not so directly connected with the present question. By the twelfth section of the act of February 11, 1775, (Allinson 463,) it is enacted, that “ if any person shall sue, except before a justice, for any debt or demand, and vshall obtain a verdict or judgment thereon, which, without costs, shall not amount to £6, he shall recover no costs.” These words are sufficiently comprehensive to include every species of action, whether founded on contract or tori; and the legislature, therefore, were obliged, by a special exception, to exclude actions of replevin or slander, actions of tres *510 .pass for assault and battery or imprisonment, &c., thus declaring, that without a particular exception, these actions would have been within the meaning of the previous section.

It is contended, however, that this act of 1782 is repealed by that of 1795, by which it is enacted, that “ in all actions of this nature, commenced or to be commenced, if the plaintiff recovers less than six dollars, he shall be allowed no more costs than damages.” This suit was commenced in 1794, previous to the passing of this law, and cannot, therefore, be considered as included within its provisions, unless the language clearly implies a retrospective operation. The word “ commenced ” is used in one section, and “ to be commenced ” in the other, but we do not think that this alteration in the phraseology is sufficient to induce the court to put a construction of this kind upon language so ambiguous. I am of opinion that the rule should be made absolute.

Smith, J. concurred.

Kirkpatrick, J.

The import of the word “ demand,” as understood by the legislature, seems to be settled in the act of February, 1775, and I think we must give it the same construction in that of 1782. I am not altogether satisfied with this construction, and am inclined to adopt it, not because it is clear of difficulties, but because it seems to be the freest of embarrassment.

In regard to the distinction taken between the words “ commenced ” and " to be commenced,” I am not satisfied that the legislature) though they varied their phraseology, varied their meaning; and when there exists a reasonable doubt, as there unquestionably does in this case, I am disposed to give the words that construction which is most consistent with reason and equity.

Boudinot, J. concurred with the Chief Justice.

Rule absolute.