
    
      Henry Davis vs. J. E. Carew & A. V. Dawson, Magistrates.
    
    Where a Landlord institutes proceedings, under the 23d sec. of the Act of 1839, p. 21, to regain possession of premises leased by parol, it is not necessary that he should give ten days notice, after the determination of the lease, to the tenant to quit, as required by the Act of 1812, 5 Stat. 676.
    
      Before Frost, J. at Chambers, Charleston, September^ 1844.
    This was an application for a prohibition. The suggestion stated that the relator was tenant, for one month, of Edward W. North, under a parol lease of a house in Meeting Street. That the lease expired on the 22d August, 1844, and on that day the rent in full was paid. That before the expiration of the lease, to wit, on the 25th July, and again on the 20th August, he was duly notified in writing by the Landlord and his agent, that he would be required to deliver up possession of the premises on the expiration of the lease. That on the 26th August, he was summoned to attend on the 29th of the same month, before magistrates and freeholders, to shew cause (Sic., and that on the 29th the defendants, as magistrates, with a jury duly impannelled, proceeded to try the facts, and found the following verdict. “We find that Henry Davis was tenant unto Edward W. North of the premises on the east side of Meeting Street, known as No-in' said street; that the term of said tenancy was from month to month ; that the same has been duly determined, and that Henry Davis continues to hold the same, and we award restitution to said Edward W. North.” The suggestion then prayed a writ of prohibition to restrain the defendants from proceeding further.
    His Honor refused the prayer of the suggestion, and the relator appealed, on the ground that ten days demand of possession, after the determination of the lease, was neither .alleged, nor proved at the trial, npr found by the jury, and the finding was therefore defective and void.
    
      Thompson 6p Rice, for the motion.
    Pressley, contra.
   Curia, per

Fbost, J.

The Act of 1812, 5 Stat. 676, provides that, upon the determination of a written lease, the landlord, having given to the tenant ten days notice to remove, if the same be not complied with, may complain to two magistrates ; and upon due proof that the landlord had so leased the premises to the person in possession, and that the lease is ended, and that demand in writing, for the redelivery of possession, has been made, they shall proceed, in the manner directed, to restore possession to the landlord. The Act of 1839, p. 21, provides, that on the determination of any lease, in writing or by parol, if the lessee shall hold over thereafter, any two magistrates, on due proof thereof, shall proceed, in the same manner directed by the Act of 1812, to restore possession to the landlord.

It is insisted that under the Act of 1839, on the determination of a lease, by parol or written, and due proof thereof, the magistrates are not authorised to restore possession to the landlord, unless it be also proved that he had given the ten days notice to the tenant required by the Act of 1812.

The Act of 1839 is express, intelligible, and provides a plain mode of relief, requiring no aid from construction, nor reference to other Acts to explain or render complete its provisions. It was prepared , with great care and diligence, by a comission, appointed b}r the Legislature, consisting of the Attorney General and Solicitors, who were instructed to compile and digest all the Acts relating to the several district offices and officers, under distinct titles. At the same time, the commissioners were authorized to introduce such amendments, as experience of any inconveniences and defects in the many Acts, relating to the subjects, might require ; or might appear advisable. The digests, when so prepared, were submitted to the Legislature for enactment, and were subjected to the examination and approval of special committees, organised in both branches, and charged exclusively with the revision of the bills presented for enactment. These digests were designed to contain a compendium of all the law relating to the several titles, for the guidance and instruction of the district officers and magistrates. The high authority which attaches to these digests, from the manner in which they were prepared, and the purposes they were intended to answer, gives assurance of consideration, certainty and care in all their provisions, which should deter from rash and conjectural construction. The utility of them depends on their being maintained without alteration, and every construction which adds to or takes away from the plain letter of the Acts, impairs their usefulness.

The omission of the ten days notice could not have been inadvertent or accidental; for the Act of 1839 is, in a great measure, copied from the Acts of 1812 and 1817, 6 Stat. 67, and its provisions are adapted to the omission of the notice. Indeed the Act is complete, and in every particular accommodated to the relief by it provided, and the addition of ten days notice will be a mere interpolation.

Stress is laid on the provision of the Act of 1839, that if, on the determination of any written or parol lease, the lessee shall hold over, any two magistrates, on due proof thereof, may proceed &c ; and a similar provision.in the Act of 1812, that on the determination of any written lease, upon due proof of the lease, and that it is ended, and of the ten days notice to remove, the magistrates may proceed (fee. The use of the same phrases respecting proof of the requisites prescribed by the Acts respectively, would seem,t° be sufficiently explained by the fact, that the Act of 1812 is copied literally, in all its provisions applicable to the last Act. But it is contended that “due proof thereof,” in the Act of 1839, does not refer to the determination of the lease immediately preceding, but means due proof of what is required under the Act of 1812. The last Act is not even refered to in the former, nor is there any ambiguity which can warrant a very forced disjunction of the context of the Act from,its plain and obvious connection. But “due proof,” under the Act of 1812, is not satisfied unless the lease be in writing. The construction contended for, would require that proof also, under the Act of 1839, and thus expunge leases by parol,, at the same time that the ten days notice is introduced, and restore the Act of 1812, in all its terms.

It is further argued that the Act of 1839 concerning the office and duties of magistrates, must be considered as merely directory to them, and cannot be so construed as to abridge the conditions of relief to the landlord prescribed by the Act of 1812.

The Acts are in pari materia, though the titles are different. The Act of 1812 might, with as much if not more propriety, have been entitled an Act to empower magistrates to give to landlords summary re-possession of leased premises. It is contradictory, and merely nugatory, that the landlord should have, by law, a right to demand the interference of the magistrate, in a manner and on terms which the magistrate could not, by law, exercise. The power of the one and the rights of the other must be co-incident. The question then recurs on the construction of the Acts; and the appellant’s argument is in no way advanced. The rule is, that the last Act abrogates former inconsistent Acts. Inconsistency may arise as well from omission as addition. If the first Act had given relief in cases of parol, as well as written leases, the landlord could not have a mandamus to require the magistrates to proceed on a parol lease. Neither when the first Act requires notice, and the last Act does not, can a prohibition be granted because the magistrate proceeds without proof of notice. The proceeding in this case is on a parol lease. The Act of 1812 related only to written leases. If the ten days notice were not dispensed with, it can only he insisted on in case of a written lease. The motion is refused.

O’Neall, Evans and Butler, JJ. concurred.

Wardlaw, J.

dissenting. I.think that the magistrate’s Act, and other Acts of 1839 concerning district officers, were intended rather to collect together the regulations concerning the offices to which they severally relate, than to alter the statutory provisions which in many instances they re-enact, and that the 23d sect, of the magistrates Act made no change in the pre-existing law, besides the extension to parol leases of the remedy which before was confined to written ones.

This section must be construed in connection with the Acts of 1812 and 1817, from which it was extracted, so that the whole may form one system. The draftsman of the. section obviously intended to extract from the former Acts so much as. related to magistrates, leaving for the sheriff’s Act what concerned the duty of sheriffs, and' excluding entirely what related only to the parties, landlord and tenant. But some confusion has been produced by the separation and the attempt to condense. It seems to me however very plain that by the words “on the complaint, and due proof thereof, by any lessor,” are meant the complaint and proof of what is set forth in the Act of 1812, to be complained of and proved; that by “to try the facts,” is meant to try the facts .enumerated, in the former statute ; that “is entitled to the possession,” means, has shewn due title to the possession by that proof of the necessary facts, which before was required; and that “all expenses incurred,” means the expenses which had formerly been ascertained and provided for; in fine that the Act of 1812 furnishes an exposition of all that the Acts of 1839, pre-supposing a knowledge of the former Acts, has left obscure.

Confirmation of this view may be drawn from the 46th sect, of the sheriff’s Act of 1839 p. 34, which contains hints and memoranda of the sheriff’s duty in relation to landlords and tenants, and to other kindred subjects, separated from the magistrate’s. There, for brevity, reference is expressly made to the Acts of 1812 and 1817, and the sheriff is empowered to execute the duties required by them. Of course those Acts were still to be of force. If the magistrates Act of 1839 has provided a remedy so essentially different from that which before existed, as the omission of the notice before required must make it, then the sheriff has no direct authority to execute the new remedy — for the directions to the sheriff and the penalties to which he is subjected for disobedience, all expressly relate to the former statutes and the remedy provided by them.

The notice required by the Act of 1812 must be given after the expiration of the lease, and it has been argued that the delay occasioned by the ten days required for it, and the four more which must elapse before a trial, would subject landlords to injury from obstinate tenants holding over, especially serious in cases of short leases ; and that the consideration of this inconvenience must have induced the Legislature to dispense with the notice. But it should be remembered that the remedy introduced by the Act of 1812 is itself extremely summary and unexpensive compared with the resort to which landlords were before driven; that landlords still have the action of trespass and the right to double rent in cases of tenants holding over; and that the condition of explicit notice to quit, running for ten days, is not an unreasonable requistion, before a landlord shall' adopt a remedy unknown to the common law, and sometimes subject to abuse in the hands of the inferior tribunal, which administers it without appeal.  