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abbots and deans being the highest persons named, and bishops being of a still higher order.” 1
$ 246b. Further of reasons. The constructions explained in this sub-title accord with the ordinary workings of the human mind. A writer who enumerates certain things, adding a general clause, mentions, as of course, the highest things, and some of each class, within those which he had in contemplation. Any person can, by experiment, ascertain that his own mind will commonly work so. We reasonably assume, therefore, in construing his language, that he did not intend to include things higher than any mentioned, or of a class outside of those specified. Yet the mind does not necessarily, in every instance, move in this way. And when the court can discern that the mind of the maker of a statute moved otherwise, it should not apply to his work this rule of interpretation.
V MEANINGS OVERLYING ONE ANOTHER.
§ 246c. Doctrine in principle.—Both because words have no absolutely fixed and uniform meanings, and because in the necessary structure of language they overlie one another in significance,- as well as because, in our law, its several provisions habitually overlie one another, :— it follows that, where a statute employs several terms in combination, the proper import of each one of which embraces something of what is expressed in others, each term should be given in the construction its full meaning, thereby creating partial, yet harmless, repetitions. So the question is in just principle. In authority,-
1 Canterbury's Case, 2 Co. 46. And held that an act imposing duties see Wilb. Stat. Law, 183, 184. The upon .copper, brass, pewter, tin, avd last-named author adds: “The dean all other metals not enumerated,' did of St. Paul's was not included in the not apply to gold and silver,' Casher words 'great men or noblemen or v. Holmes, 2 B. & Ad. 592, and that noblewomen,' which occur in the act the words .wherry, lighter, vessel, 37 Hen. 8, ch. 12; because, by the barge, or other craft,' did not include order of those words, great men must a brig, Blanford v. Morrison, 15 Q. B. mean persons superior in certain re- 724, or a steam tug, Reed v. Ingham, spects to noblemen and noblewomen.' 3 Ellis & B. 889. See, however, TisWarden of St. Paul's v. The Dean, 4 dell v. Combe, 7 A. & E. 788." Price, 65, 79 (citing, also, in this con- 2 Ante, S 92d. nection, Ailesbury v. Pattison, 1 Doug. 3 Ante, SS 143, 160, 162, 163d-164, 28, 30). In later cases it has been 170-172.
§ 247. Old doctrine - (" Sherp or ewe,” etc.).— It is a doctrine of the older books that, when a statute enumerates several things and the words are so broad in meaning as to overlie one another, the less specific will be narrowed in the interpretation to prevent this consequence. For example, if, where this doctrine prevails, a statute makes specially punishable the stealing of “a sheep or a ewe,” an indictment describing the animal as a sheep is not supported by proof of stealing a ewe.' But. Modern English doctrine.- This doctrine is entirely overturned in England, and the rule of reason established in its place. Thus,
? “Sheep or ewe,” etc. The words of 7 and 8 Geo. 4, ch. 29, $ 25, against larceny, were “ram, ewe, sheep, or lamb.” And on an indictment for stealing a sheep, the majority of the judges, as early as 1838, held that, though the proof failed to show the sex of the stolen animal, the conviction was right, because, notwithstanding this overlying of meaning, “the word sheep in the statute was a generic term, including ram, ewe, and wether, and the two former words might be rejected.” 3 And where, in a later case, on a like indictment upon the same statute, employing the word “sheep,” the animal stolen was proved to have been a lamb, the majority of the judges sustained the conviction. This doctrine has been since followed as settled.5
1 Rex v. Puddifoot, 1 Moody, 247; II, SS 332, 347, 348; Crim. Pro., L, Rex v. Birket, 4 Car. & P. 216; S. v. 8 620. Tootle, 2 -Harring. (Del.) 541; Rex v. 3 Reg. v. McCulley, supra. Loom, 1 Moody, 160. For the same 4 Reg. v. Spicer, supra. general doctrine, see also Rex v. Cook, 6 Reg. v. Aldridge, 4 Cox, C. C. 143. 1 Leach, 105, 2 East, P. C. 616; S. v. Foal - Filly.- Not inconsistently, Plunket, 2 Stew. 11; Bush v. S., 18 it is believed, with the old doctrine, Ala. 415; Rex v. Beaney, Russ. & Ry. foals and fillies were, in 1822, held 416. See also Rex v. Gillbrass, 7 Car. to be included in the words “horse, & P. 444; Rex v. Paty, 2 East, P. C. gelding or mare," of the English stat1074, 1 Leach, 72, 2 W. Bl. 721; Rex ute 2 and 3 Edw. ch. 33. Rex v. v. Moyle, 2 East, P. C. 1076; S. v. Mc- Welland, Russ. & Ry. 494. Lain, 2 Brev. 443.
So, Pig.- Under the statutory 2 Reg. v. McCulley, 2 Moody, 34; words “hog, sheep or goat,” a pig S. C. nom. McCulley's Case, 2 Lewin, four or five months old may be de272; Reg. v. Spicer, 1 Den. C. C. 82, 1 scribed in an indictment for larceny Car. & R. 699. And see S. v. Godet, as a “hog.” Lavender v. S., 60 Ala 7 Ire. 210; post, § 326; Crim. Law, 60; Washington v. S., 58 Ala. 355.
§ 248. With us,- the earlier English doctrine has been sometimes followed; as, in
Texas — It appears to have become established in Texas by numerous decisions. For example, under a statute providing a special punishment “if any person shall steal any horse, gelding, mare, colt, ass, or mule,” an indictment charging the lar. ceny of a "horse" was held not to be supported where the
a proof showed the animal stolen to have been a “gelding.” Said Lindsay, J.: “The term is used in the statute upon which this indictment was founded distinctively from the word horse, and a conviction for the theft of a horse, upon the proof of taking feloniously a gelding, would be as incongruous as that of stealing a mule or an ass upon a similar indictment.”
Delaware—(“Sheep").— In Delaware, the statute not being in the form we are considering, proof of stealing a ram was held to sustain an indictment charging the larceny of a “sheep; ” yet, it is perceived, the present question could not in this case arise.3
Other states.- How the question stands in the other states generally the author will not attempt to decide; except that, in most of them, it appears not to be settled."
VI. THE EXPRESS MENTION OF ONE THING IMPLYING THE Ex
CLUSION OF ANOTHER. $ 249. Maxim.— The doctrine of this sub-title is embodied in the maxim, that the express mention of one thing excludes all others - Expressio unius est exclusio alterius. Thus,
1 Brisco v. S., 4 Tex. Ap. 219, 221, N. C. 539; S. v. Hill, 79 N. C. 656; S. [30 Am. R. 162;] Valesco v. S., 9 Tex. v. Dunnavant, 3 Brev. 9, [5 Am. D. Ap. 76; Persons v. S., 3 Tex. Ap. 240; 530;] S. v. McLain, 2 Brev. 443; Fein Keesee v. S., 1 Tex. Ap. 298; Ghols- v. Territory, 1 Wyom. 376; P. v. Soto, ton v. S., 33 Tex. 342; Banks v. S., 28 49 Cal. 67; Gabriel v. S., 40 Ala. 357; Tex. 644; Dalton v. S., 4 Tex. Ap. 333; Stollenwerk r. S., 55 Ala. 142; WatLunsford v. S., 1 Tex. Ap. 448, [28 son v. S., 55 Ala. 150; Shubrick v. S., Am. R. 414;] Swindel v. S., 32 Tex. 2 S. C. 21; Toledo, etc. Ry, Co., 50 Ill. 102; Pigg v. S., 43 Tex. 108.
184. ? Jordt v. S., 31 Tex. 571, 572, [98 5 Broom, Leg. Max. (2d ed.) 505, 515; Am. D. 550.]
Co. Lit. 210a; Watkins v. Wassell, 3S. v. Tootle, 2 Harring. (Del.) 541. 20 Ark. 410; Feldman v. Morrison, 1
4 Consult Crim. Pro., I, $ 620; Amer Bradw. 460; Howell v. Stewart, 54 ican cases cited to last section; Wiley Mo. 400; Scovern v. S., 6 Ohio St. 288, v. S., 3 Coldw. 362; S. v. Royster, 65 291.
Express remedy excluding implied. Though, as we have seen,' the mere establishing of a new statutory right carries with it by implication a remedy, yet, if the statute creating the right provides a remedy, our maxim applies, and the statutory method excludes all others. So,
Express mention of effect.— Where a statute expressly defines what its effect shall be, other effects are by implication excluded. Again,
Limiting authorized act. — If the legislature declares that a thing before lawful may be done, and adds that this shall not be construed to permit the doing of some other thing embraced in the general provision, the result will be an implied prohibition of such other thing, though it was before lawful. On the other hand,
Remedy for existing right.— A statute which merely prescribes a new remedy for an existing right is cumulative only, and a party may follow either it or the antecedent law at his election, unless by direct words or necessary implication it takes away the prior remedy. And —
$ 249a. Limits of doctrine.- Special caution is required not to carry the main doctrine of this sub-title too far. For example, the omission of a thing from a statute is not equivalent to the insertion of its opposite; as, if it enumerates provisions not to be affected by it, all unenumerated provisions on like subjects are not therefore repealed. And an act forbidding the wife to
1 Ante, S 137.
13 Wend. 341; (Monterey v. Abbott, 2 Thurston v. Prentiss, 1 Mich. 193; 77 Cal. 541.) S. v. Loftin, 2 Dev. & Bat. 31; Smith 3 Perkins v. Thornburgh, 10 Cal. v. Lockwood, 13 Barb. 209; Conwell 189; Pursell v. New York Life Ins. v. Hagerstown Canal, 2 Ind. 588; S. etc. Co., 42 N. Y. Super. 383; Watkins v. Corwin, 4 Mo. 609; Rex v. Douse, 1 v. Wassell, 20 Ark. 410. Ld. Raym. 672; Dudley v. Mayhew, 4 S. v. Eskridge, 1 Swan (Tenn.), 413. 3 Comst. 9; Almy v. Harris, 5 Johns. 8 Coxe v. Robbins, 4 Halst. 384; 175; Lang v. Scott, 1 Blackf. 405, [12 Almy v. Harris, 5 Jolins. 175; Colden Am. D. 257;] Bailey v. Bryan, 3 Jones v. Eldred, 15 Johns. 220; Farmers' (N. C.), 357, [67 Am. 246:] Camden Turnpike v. Coventry, 10 Johns. 389; v. Allen, 2 Dutcher, 398; Victory v. Bearcamp River Co. v. Woodman, 2 Fitzpatrick, 8 Ind. 281; McCormack Greenl. 404; Fryeberg Canal v. Frye, v. Terre Haute, etc. R. R. Co., 9 Ind. 5 Greenl. 38; Baltimore v. Howard, 6 283; Ham v. Steamboat Hamburg, 2 Har. & J. 383; Booker v. McRoberts, Iowa, 460; post, $ 250. And see U. S. 1 Call, 243. v. Dickey, Morris, 412; P. v. Stevens, 6 Burnham v. Onderdonk, 41 N. Y.
give evidence for her husband in criminal cases does not authorize her doing it in civil cases. Likewise a provision that
" shop-books shall not be evidence after a year does not make them such within the year. We shall see more of this under the next sub-title; as to
VII. How STATUTORY AND COMMON-LAW REMEDIES MINGLE.
$ 249b. Already.- The discussions of this volume have already brought to view some of the doctrines pertaining to this sub-title. But,
Here.- In this connection, we shall somewhat extend our vision, and endeavor to gain a more connected and complete comprehension of the entire topic.
$ 250. Creating offense and prescribing procedure.- Where the same statute which creates an offense prescribes also the penalty, mode of procedure, or anything else of the sort, only what the statute thus ordains is permissible. But,
Affirming common-law offense.- Where the offense which a statute creates is such also at the common law, and the statute and common law are not repugnant, all new provisions thus legislatively ordained are cumulative, and the procedure may conform to either law. Again,
Creating offense without providing procedure or punishment. Where a statute forbids a thing of a public nature before lawful, but provides no penalty, the indictment is at the common
1 Barbat v. Allen, 7 Exch. 609. 140; Rex v. Marriot, 4 Mod. 144; S. C 2 Pitman v. Maddox, 2 Salk. 690. nom. Rex v. Marriott, 11 Mod. 140,
3 Ante, $ 249, and cases there cited; note; Hartley v. Hooker, Cowp. 523; P. v. Craycroft, 2 Cal. 243, [56 Am. D. Crofton's Case, 1 Mod. 34; Rex v. 331;} Attorney-General v. Radloff, 10 Buck, 1 Stra. 679; Rex v. Savage, 1 Exch. 84, 23 Law J. (N. S.) Exch. 240, Ld. Raym. 347; S. v. Maze, 6 Humph. 18 Jur. 555, 26 Eng. L. & Eq. 413; 17; Rex v. Wright, 1 Bur. 543; SudRenwick v. Morris, 7 Hill (N. Y.), 575; bury Meadows v. Middlesex Canal, Rex v. Ivyes, 2 Show. 468; Reg. v. 23 Pick, 36; Dodge v. Essex, 3 Met. Dye, 11 Mod. 174; Com. v. Swift Run 380; Henniker v. Contoocook Valley Gap Turnpike, 2 Va. Cas. 361; MC- R. R. Co., 9 Fost. (N. H.) 146. Elhiney v. Com., 22 Pa. St. 365; S. v. 4 Ante, SS 163d, 164, 166, 167, 173; Meyer, 1 Speers, 305; S. v. Helgen, 1 Crittenden v. Wilson, 5 Cow. 165, [15 Speers, 310; Barden v. Crocker, 10 Am. D. 462;] P. v. Craycroft, 2 Cal. Pick. 383; Rex v. Hemmings, 3 243, [56 Am. D. 331;] Rex o. Dixon, Salk. 187; Anonymous, 3 Salk. 10 Mod. 335; Gooch v. Stephenson, 13 189, 2 Ld. Raym. 991; Rex v. Gluff, Me. 371. 12 Mod. 104; Rex v. Hurst, 11 Mod. 5 Crim. Law, L, SS 237, 238