§ 247. Old doctrine("Shep or ewe,' ("Sheep 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.1 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." " 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." 1 Rex v. Puddifoot, 1 Moody, 247; Rex v. Birket, 4 Car. & P. 216; S. v. Tootle, 2 Harring. (Del.) 541; Rex v. Loom, 1 Moody, 160. For the same general doctrine, see also Rex v. Cook, 1 Leach, 105, 2 East, P. C. 616; S. v. Plunket, 2 Stew. 11; Bush v. S., 18 Ala. 415; Rex v. Beaney, Russ. & Ry. 416. See also Rex v. Gillbrass, 7 Car. & P. 444; Rex v. Paty, 2 East, P. C. 1074, 1 Leach, 72, 2 W. Bl. 721; Rex v. Moyle, 2 East, P. C. 1076; S. v. McLain, 2 Brev. 443. 2 Reg. v. McCulley, 2 Moody, 34; s. c. nom. McCulley's Case, 2 Lewin, 272; Reg. v. Spicer, 1 Den. C. C. 82, 1 Car. & K. 699. And see S. v. Godet, 7 Ire. 210; post, § 326; Crim. Law, II, §§ 332, 347, 348; Crim. Pro., L 3 Reg. v. McCulley, supra. 5 Reg. v. Aldridge, 4 Cox, C. C. 143. Foal-Filly.- Not inconsistently, it is believed, with the old doctrine, foals and fillies were, in 1822, held to be included in the words "horse, gelding or mare," of the English statute 2 and 3 Edw. 6, ch. 33. Rex v. Welland, Russ. & Ry. 494. § 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 larceny of a "horse" was held not to be supported where the 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." وو 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 EXCLUSION 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, [30 Am. R. 162;] Valesco v. S., 9 Tex. Ap. 76; Persons v. S., 3 Tex. Ap. 240; Keesee v. S., 1 Tex. Ap. 298; Gholston v. S., 33 Tex. 342; Banks v. S., 28 Tex. 644; Dalton v. S., 4 Tex. Ap. 333; Lunsford v. S., 1 Tex. Ap. 448, [28 Am. R. 414;] Swindel v. S., 32 Tex. 102; Pigg v. S., 43 Tex. 108. 2 Jordt v. S., 31 Tex. 571, 572, [98 Am. D. 550.] 3 S. v. Tootle, 2 Harring. (Del.) 541. 4 Consult Crim. Pro., I, § 620; American cases cited to last section; Wiley v. S., 3 Coldw. 362; S. v. Royster, 65 N. C. 539; S. v. Hill, 79 N. C. 656; S. v. Dunnavant, 3 Brev. 9, [5 Am. D. 530;] S. v. McLain, 2 Brev. 443; Fein v. Territory, 1 Wyom. 376; P. v. Soto, 49 Cal. 67; Gabriel v. S., 40 Ala. 357; Stollenwerk v. S., 55 Ala. 142; Watson v. S., 55 Ala. 150; Shubrick v. S., 2 S. C. 21; Toledo, etc. Ry. Co., 50 Ill. 184. 5 Broom, Leg. Max. (2d ed.) 505, 515; Co. Lit. 210a; Watkins v. Wassell, 20 Ark. 410; Feldman v. Morrison, 1 Bradw. 460; Howell v. Stewart, 54 Mo. 400; Scovern v. S., 6 Ohio St. 288, 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, § 137. 2 Thurston v. Prentiss, 1 Mich. 193; S. v. Loftin, 2 Dev. & Bat. 31; Smith v. Lockwood, 13 Barb. 209; Conwell v. Hagerstown Canal, 2 Ind. 588; S. v. Corwin, 4 Mo. 609; Rex v. Douse, 1 Ld. Raym. 672; Dudley v. Mayhew, 3 Comst. 9; Almy v. Harris, 5 Johns. 175; Lang v. Scott, 1 Black f. 405, [12 Am. D. 257;] Bailey v. Bryan, 3 Jones (N. C.), 357, [67 Am. D. 246:] Camden v. Allen, 2 Dutcher, 398; Victory v. Fitzpatrick, 8 Ind. 281; McCormack v. Terre Haute, etc. R. R. Co., 9 Ind. 283; Ham v. Steamboat Hamburg, 2 Iowa, 460; post, § 250. And see U. S. v. Dickey, Morris, 412; P. v. Stevens, 13 Wend. 341; [Monterey v. Abbott, 77 Cal. 541.] 3 Perkins v. Thornburgh, 10 Cal. 189; Pursell v. New York Life Ins. etc. Co., 42 N. Y. Super. 383; Watkins v. Wassell, 20 Ark. 410. 4 S. v. Eskridge, 1 Swan (Tenn.), 413. 5 Coxe v. Robbins, 4 Halst. 384; Almy v. Harris, 5 Johns. 175; Colden v. Eldred, 15 Johns. 220; Farmers' Turnpike v. Coventry, 10 Johns. 389; Bearcamp River Co. v. Woodman, 2 Greenl. 404; Fryeberg Canal v. Frye, 5 Greenl. 38; Baltimore v. Howard, 6 Har. & J. 383; Booker v. McRoberts, 1 Call, 243. 6 Burnham v. Onderdonk, 41 N. Y. 425 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. 2 Pitman v. Maddox, 2 Salk. 690. 3 Ante, § 249, and cases there cited; P. v. Craycroft, 2 Cal. 243, [56 Am. D. 331;] Attorney-General v. Radloff, 10 Exch. 84, 23 Law J. (N. S.) Exch. 240, 18 Jur. 555, 26 Eng. L. & Eq. 413; Renwick v. Morris, 7 Hill (N. Y.), 575; Rex v. Ivyes, 2 Show. 468; Reg. v. Dye, 11 Mod. 174; Com. v. Swift Run Gap Turnpike, 2 Va. Cas. 361; McElhiney v. Com., 22 Pa. St. 365; S. v. Meyer, 1 Speers, 305; S. v. Helgen, 1 Speers, 310; Barden v. Crocker, 10 Pick. 383; Rex v. Hemmings, 3 Salk. 187; Anonymous, 3 Salk. 189, 2 Ld. Raym. 991; Rex v. Gluff, 12 Mod. 104; Rex v. Hurst, 11 Mod. 140; Rex v. Marriot, 4 Mod. 144; s. c. nom. Rex v. Marriott, 11 Mod. 140, note; Hartley v. Hooker, Cowp. 523; Crofton's Case, 1 Mod. 34; Rex v. Buck, 1 Stra. 679; Rex v. Savage, 1 Ld. Raym. 347; S. v. Maze, 6 Humph. 17; Rex v. Wright, 1 Bur. 543; Sudbury Meadows v. Middlesex Canal, 23 Pick. 36; Dodge v. Essex, 3 Met. 380; Henniker v. Contoocook Valley R. R. Co., 9 Fost. (N. H.) 146. Ante, §§ 163d, 164, 166, 167, 173; Crittenden v. Wilson, 5 Cow. 165, [15 Am. D. 462;] P. v. Craycroft, 2 Cal. 243, [56 Am. D. 331;] Rex v. Dixon, 10 Mod. 335; Gooch v. Stephenson, 13 Me. 371. 5 Crim. Law, I, §§ 237, 238. law,' and the common-law punishment follows. Or, if such a statute prescribes no mode of prosecution, the common-law indictment lies. In like manner,— § 250a. Private statutory interest.— Where a statute creates a private interest, but is silent as to the remedy, any person within the benefit conferred, or injured by the prohibited wrong, may sue. Or, as otherwise expressed, "when any statute requires an act to be done for the benefit of another, or to forbear the doing of an act which may be to his injury, though no action be given in express terms by that statute, for the omission or commission, the general rule of law in all such cases is that the party injured shall have an action."5 new statutory remedy for an existing right does not take away the former remedy, and either may be pursued. So, as in the case of a criminal statute,' where the act which confers a civil right prescribes the remedy, it only is permissible. Or, if a 1 Rex v. Robinson, 2 Bur. 799, 803; Rex v. Smith, 2 Doug. 441; Rex v. Harris, 4 T. R. 202. 2 Ante, § 138; Reg. v. Price, 11 A. & E. 727; Reg. v. Walker, Law R. 10 Q. B. 355, 13 Cox, C. C. 94. 3 Colburn v. Swett, 1 Met. 232; Elder v. Bemis, 2 Met. 599; S. v. Meyer, 1 Speers, 305; S. v. Helgen, 1 Speers, 310; and the cases in the last two notes. * Ante, §§ 134, 138, 144; Crim. Law, I, S$ 237, 238; Ewer v. Jones, 2 Ld. Raym. 934, 937; Privilege of Priests, 12 Co. 100; Arundel v. Duckett, 20 Md. 468; Shepherd v. Hills, 11 Exch. 55, 67; Hightower v. Fitzpatrick, 42 Ala. 597; Dudley v. Mayhew, 3 Comst. 9. And see Steamship Co. v. Joliffe, 2 Wall. 450. 5 Ashby v. White, 14 How. St. Tr. 695, 785; Pickering v. James, Law R. 8 C. P. 489; Hitchins v. Kilkenny, etc. Ry. Co., 9 C. B. 536; The Wav erly, 7 Bis. 465. 6 Coxe v. Robbins, 4 Halst. 384; Almy v. Harris, 5 Johns. 175; Colden v. Eldred, 15 Johns. 220; Farmers' Turnpike v. Coventry, 10 Johns. 389; Bearcamp River Co. v. Woodman, 2 But a Greenl. 404; Fryeburgh Canal v. 8 Stevens v. Evans, 2 Bur. 1152, 1157; S. v. Stewart, 26 Ohio St. 216; Lang v. Scott, 1 Black f. 405, [12 Am. D. 257;] Rochester v. Bridges, 1 B. & Ad. 847, 859; Ward v. Severance, 7 Cal. 126; Roberts v. Landecker, 9 Cal. 262; Thurston v. Prentiss, 1 Mich. 193; Almy v. Harris, 5 Johns. 175; Renwick v. Morris, 7 Hill (N. Y.), 575; Fuller v. Edings, 11 Rich. 239; Butler v. S., 6 Ind. 165; Victory v. Fitzpatrick, 8 Ind. 281; Cole v. Muscatine, 14 Iowa, 296; Hazen v. Essex, 12 Cush. 475; Camden v. Allen, 2 Dutcher, 398; Weller v. Weyand, 2 Grant (Pa.), 103; Brown v. White Deer, 27 Pa. St. 109; Babb v. Mackey, 10 Wis. 371; Wolverhampton New Waterworks v. Hawkesford, 6 C. B. (N. S.) 336, 356; Stevens v. Jeacocke, 11 Q. B. 731; Marshall v. Nicholls, 18 Q. B. 882; |