
    Supreme Court of Errors and Appeals.
    February Term.
    Nashville.
    1813.
    COLEMAN v. THE PRESIDENT AND TRUSTEES OF THE DAVIDSON ACADEMY.
    - Writ of Error.
    In construing a statute all other statutes in pari materia should be taken together; and even those which are no longer in force may he referred to in explanation. [Acc. 2 Tenn. 173, 373; Meigs, 237.]
    In summary proceedings by motion given by statute, where the statute is silent as to notice, none is required. [Aoc. Newman v. Campbell, M. & Y. 65, citing this case; williams Harvey, Cooke, 466; 1 Y. 461.]
    The defendants in error, having obtained a judgment in the Davidson Circuit Court against Coleman, he, under the replevin law passed the 23d day of November, 1809, stayed the execution of the judgment by giving bond and security agreeably to the provisions of the statute. At the expiration of the twelve months the defendants moved the Court for, and obtained a judgment against Coleman and his, securities for the amount of the replevin bond.
    To reverse this judgment, Coleman prosecuted a writ of error and assigned for cause, —
    1. That the Act of November session, 1809, does not authorize a judgment by motion upon such bonds; and
    2. That he had no previous notice of the motion.
    Whiteside, for the plaintiff in error,
    contended that there were two objections to the judgment of the Circuit Court. 1. That the act of Assembly under which the replevin bond had been taken did not authorize a judgment by motion; and secondly, that even if a judgment could be recovered in that summary way, yet it could only be done by giving a previous notice of the motion to the adverse party. The Act passed at the April session, 1809, which is the first law that authorizes such bonds to be given for the purpose of staying the execution, expressly gives the remedy by motion. This Act expired in December, 1809, before the bond in question was executed, and consequently cannot be a foundation for the present judgment. The bond, indeed, appears upon the face of it to have been taken under the- Act of November session, and there is nothing in that Act which gives the summary remedy pursued by the defendants in error. It simply authorizes the person against whom a judgment might be recovered to stay the execution twelve months, by giving bond and security, without making any provision as to the mode to be pursued for the purpose of enforcing the payment of the money. And, indeed, it is evident that the Legislature intended to leave the obligee to his remedy by a suit upon the bond, in the ordinary way, otherwise a different provision would have been made; because, in the same Act it is provided that if the defendant did not replevy, and his property should be sold for more than enough to satisfy the judgment, the purchaser should execute a bond to him for the overplus, payable in twelve months, upon which he was authorized to recover the amount by motion. This shows that the Legislature knew what they were doing; and the absence -of any provision calculated to operate upon a case like the present, evidently proves that it was not intended to be applicable to any but the one specified. It may be observed that the last Act can derive no aid from that of the April session, because, although it is, in part, a legislation on the same subject, it makes no reference to the former Act, either in the title or elsewhere.
    But, admitting that the defendants are permitted to recover judgment on the bond by motion, and still the other objection, the absence of notice must prove fatal. Considering the question as resting entirely on the Act of April, 1809, and the want of notice cannot be dispensed with. As the Act is silent on that matter, it may be safely affirmed that it is indispensable. Upon general principles, no man can be condemned unheard. The Legislature have a right to dispense with the necessity of notice, but unless that is done in express and unequivocal terms, the Court ought not to imagine that such flagrant injustice was intended.
    Cooke, for the defendants,
    argued that the Act of November session, 1809, was but a continuation of the privilege given to debtors by the Act of the preceding April. It is a well settled principle, that where there are various legislative Acts passed upon the same subject, as the two Acts in question evidently were, in construing them they should all be taken together. The Act of April was intended to relieve debtors, by giving a temporary stay upon judgments which might be recovered against them; but at the same time it was not conceived by the Legislature to be just, that after the bonds had been forfeited by non-payment the obligee should be compelled to go through a tedious lawsuit in order to get the money. Hence a provision was made, that a judgment might be recovered on motion. This Act expired, from the terms of it, in the December after its passage; but the Legislature, at the November session, conceiving that the reason which had at first influenced them to interfere would not in all probability cease so soon as was apprehended when the first law was passed, gave a further indulgence. Both Acts are evidently upon the same subject, and one is merely a continuation of the other. In construing them, therefore, they should both be taken together. Indeed it would be singularly strange if this construction were not correct. It never can be believed that the Legislature intended to give a remedy, by motion, to the creditor whose property had been sold for more than the amount of the judgment, which would be denied to an honest Iona fide creditor, already unreasonably postponed in the collection of his debt.
    I consider the question of notice as already settled. By an examination of the acts of Assembly, it will be found that the Legislature have, in cases of motions, sometimes required it, and at others have been wholly silent. I take it for granted that when the law is silent, no notice is necessary. It has been so determined by this Court in a case at Clarksville.
   White, J.

delivered the following opinion of the Court: —

The record shows that the defendants in error had obtained a judgment-in the Circuit Court of Davidson County against Coleman, upon which a fieri,facias issued, and that under the act of Assembly passed the 23d day of November, 1809, the sheriff took from him a bond with security, and thereby stayed the collection of the money for twelve months. After the expiration of this time, the defendants in error moved the Circuit Court for a judgment against Coleman and his securities upon the bond, which judgment was rendered; and to reverse it, this writ of error was prosecuted.

The only question now made is, whether the Circuit Court did right in giving a judgment upon motion, particularly as no previous notice of that motion was given.

The. act of November, 1809, is so worded as to render it very difficult to collect the meaning of the Legislature upon many points. At the April session, 1809, another Act had been passed upon the same subject, which, by the terms of it, was to expire on the first day of December, 1809. In forming an opinion upon this point, we hold it correct to take into view both these Acts. The first expressly authorizes a judgment on motion, but the latter says nothing as to the remedy upon these bonds except in one case, — that is, when property is sold upon twelve months’ credit for a sum more than sufficient to satisfy the execution. In that case it is provided that the defendant may have judgment on motion for the overplus. The fair meaning of the Legislature, then, would seem to be, that the creditor should be at liberty to pursue the mode prescribed by the first statute, which was by motion, and that the debtor should have the remedy prescribed by the latter statute, which is by motion likewise. Would it not be strange that a summary and cheap remedy should be afforded a defendant where property had been sold for more than sufficient to satisfy the execution, and at the same time leave the creditor, whose execution had been delayed twelve months, without any other remedy save that furnished in the ordinary mode of a new suit ? It seems to us that a similar remedy was intended for each.

Several hundreds of judgments must have been entered in this manner, and any other manner would have made even the costs oppressive.

Again, as to notice of these motions, it seems to us that when the Legislature authorize a judgment upon motion, if they intend notice should be given the defendant, they expressly say so. In many cases the remedy by motion is provided by our statutes. In some instances the Legislature say there shall be previous notice; in others they say nothing about notice. It must, then, be reasonable to suppose that in every case where notice was intended it is expressly required, and that where the Legislature is silent on that subject they did not mean that any notice should be required.

Let the judgment be affirmed.  