
    William Phillips vs. Robert H. Cage, Assignee in Bankruptcy of Philip B. Pope, suing for the use of William E. Pugh.
    The limitation upon an open account, under the statutes of limitations in force, in this state, prior to the act of 1844, was three years.
    The “ actions of account and upon the case,” referred to in the fourth section of the law of 1823, relate exclusively to special actions of that character, and not to actions in assumpsit upon open accounts.
    Appeal from the circuit court of Yazoo county; Hon. Robert C. Perry, judge.
    On the 13th of December, 1843, Robert H. Cage, assignee in bankruptcy of Philip B. Pope, for the use of William E. Pugh, sued William Phillips in an action of assumpsit upon an open account, contracted in the years 1837- and 1838, by Phillips with Pope before he was a bankrupt. The defendant plead several pleas, among .others, the statute of limitations of three years. The plaintiff demurred, the demurrer was sustained,.and a trial had upon the issues joined on the other pleas, which resulted in a verdict for the plaintiff. These proceedings need not be stated. The defendant appealed.
    
      Charles Scott, for appellant.
    1. Under the fourth section of the act of 1822, “all actions of account and upon the case, except actions for slander, and such actions as concern the trade or merchandise between merchant and merchant,” were barred within six years next after the cause of action occurred. By the eleventh section of the same act, “ all suits or actions founded on any account for goods, wares, and merchandise, or for any articles charged in any store account, shall be commenced and sued within two years next after the cause of such suit or action,” &c.
    The fourth section of the act of 1822 was repealed by the second section of act of 1827, and by the latter act, all actions enumerated in said fourth section, except actions on promissory notes, were to be prosecuted in three years. By same act of 1827, the limitation of two years mentioned in the eleventh section of act of 1822, was repealed, and in lieu thereof, all actions founded upon any account for goods, wares, and merchandise, or for any articles charged in any store account, shall be commenced and prosecuted in three years, and not after.
    By the act of 1828, the second section of act of 1827, which repealed the fourth section of the act of 1822, was repealed, and said fourth section of the act of 1822 was expressly revived. See H. & H. 569, 570, 573.
    Now, does the act of 1828 repeal by express terms or by implication that section of the act of 1827, which provided, that all actions founded upon any account for goods, wares, and merchandise, or for any article charged in any store account, should .be commenced and prosecuted in three years'! We'think not. The second section of the act of 1827, is expressly repealed, and the fourth section of the act of 1822 is expressly revived, but it cannot operate to repeal that section of the act of 1827, upon which we rely. It merely revived the fourth section of the act of 1822, and being revived, it stands as though it had never been repealed, and derives its force from the date of its passage in 1822, and not from the date of the act repealing the second section of the act of 1827, which repealed it. 1 Kent, Com. 466, 467; 6 Wheat. 294; 4 T. R. 109. ' ■
    If, then, the fourth section of the act of 1822 stands revived by the repealing act being repealed, it must necessarily exist as though it never had been repealed. If this be true, and the act repealing the repealing act does not repeal expressly the act limiting actions on store accounts, &c. to three years, it is still in force, because the revival of the fourth section of the act of 1822 cannot operate as an implied repeal of it, for it was passed subsequently in 1827.
    2. It is an established rule in the exposition of the statutes, that the intention of the lawgivers is to be deduced from a view of the whole and of every part of a statute, taken and compared together. And several acts in pari materia, and relating to the same subject, are to be taken together and compared in their construction. If we apply these established principles, or rules of construction to the various acts of limitations, the question before the court is, it seems to me, easily solved. The intention of the legislature is manifest. It is evident that the legislature intended to fix a different limitation or period of time, in which actions founded on store accounts, &c., should be instituted, from that which is provided for other actions upon the case. This intention is apparent from the fact, that the eleventh section of the act of 1822 (being the eleventh section of the same act which limits in its fourth section all actions of account and upon the case, to be brought in six years) provided that all suits on store accounts, &c., should be commenced in two years. Both of these sections would now be in force, if the eleventh section had not been repealed or modified by the act of 1827.
    
      John Battaille, for appellee,
    After citing the different acts of limitation, contended that the act of 1828, (acts of 1828, p. 108,109, sec. 2, and How. & Hutch, p. 573, sec. 108,) repeals the second section of the act of 1827, and revives the fifth section of the act of 1822, which it recites as the fourth section of the act of 1822.
    The act of 1829, (acts of 1829, p. 83, 84, sec. 1, 2, and How. & Hutch. 573, sec. 109,110,) explains the acts of 1827 and 1828, and does not affect the act of 1828, but to recognize and re-enact it.
    It follows, then, that the fifth section of the act of 1822 was in full force at the time of the contracting of the account sued on, and of the trial of this cause in the court below. It also appears that the eleventh section of the act of 1822 was changed to three years in 1827, and that the fifth section of the act of 1822 was revived and re-enacted in 1828. The act of 1828 not only repeals the act of 1827, and thereby restores the fifth section of the act of 1822, but expressly revives the fifth section, which is a re-enactment of it. From this it is clear, that the fifth section being re-enacted in 1828, is a later statute than the eleventh section, which was even modified by having its limitation changed from two to three years, only as late as the act of 1827. The eleventh section is the act of 1827; the fifth section the act of 1828. The fifth section being a later statute than said eleventh section, now let tis inquire whether this action in the court below is one of the forms of actions intended to be embraced in said fifth section. The action of indebitatus assumpsit is in form and substance one species of action upon the case. The action of assump-sit is an action of trespass on the case. 1 Wheat. Selw. 44; 6 S. & M. 326. In the declaration, according to all precedents in pleading, it is styled an action of trespass on or upon the case.
    An action on or upon the case is wholly different from an action of case or in case, and the former is usually styled trespass upon or on the case.
    . Now the language of said fifth section is : “ And all actions of account and upon the case, except actions for slander, and except also such actions as concern the trade or merchandise between merchant and merchant,” &c. We know that an action of account could not have been instituted in this case. That is a peculiar form of action which lies between administrators, &c. and tenants in common. But the language, “all actions upon the case,” embraces every species of action upon the case, and amongst others the action which was instituted in this case. Especially so, as the language immediately following excepts certain species of action upon the case. The language used in the statute is comprehensive and strong,— “all actions upon the case,” except actions of slander, and between merchant and merchant.
    If then the fifth section embraces the form of action adopted in this case, as it must on every legal rule of construction, it is inconsistent with, and repugnant to, the eleventh section.
    Two statutes of limitation upon the same cause or species of action, the one of six and the other of three years, must be inconsistent and repugnant. If the two statutes are repugnant to each other, the rule in such case is, that “ where two statutes are passed inconsistent with and repugnant to each other, the one last enacted will operate as a repeal of the other by implication.” 5 Hill, (N. Y,) R. 221, 225, note (a); 1 Kent, 463; 5 Pick. R. 168, 169; 1 Pick. 43, 45; 12 Mass. R. 537, 545; 5 lb. 380, 382; 13 lb. 324; 21 Pick. 373, 377.
    If the two are repugnant, of course the last act governs, upon the principle that it is presumed to express the last intention of the makers. 5 Hill, (N. Y.) R. 225, note (a); 7 Kent, 463.
    The invariable rule of construction, in respect to the repealing of statutes by implication, is, that the earliest act remains in force, unless the two are manifestly inconsistent and repugnant to each other, or unless, in the latest act, some express notice is taken of the former, plainly indicating an intention to abrogate it. 5 Hill, (N. Y.) R. 225, 226.
    The act of 1829 re-enacts the act of 1828 in the last part of the statute, and establishes the construction contended for. In the preamble it says: “ And whereas the said act of 1827 was repealed, and the original provisions of the said fourth section (meaning fifth section) of the twenty-first chapter of the said code, revived by the said act of 1828.” Acts of 1829, p. 84; How. & Hutch. 573, 574.
    A subsequent statute, revising the whole subject matter of a former one, and evidently intended as a substitute for it, although it contains no express words to that effect, must, on the principles of law, as well as reason and common sense, operate to repeal the former. 12 Mass. p. 545 ; 1 Hammond, (Ohio) R. I; 8 Am. Com. Law Cases, 149; 4 Pick. 399, 404; 13 Mass. 324; 1 Kent, Com. 463; 12 Mass. 537; 5 Hill, R. 221; 1 Bl. Com. 89; 1 Tucker’s Com. 13, 14; 6 Bac. Abr. tit. Statute, 373; 3 Tomlin’s Law Diet. 522; 3 Halst. 48; 4 Mass. 570; 7 Cow. 536, 537 ; 1 Bl. Com. 90; 1 Kent, 466.
    
      Every statute derogatory to the rights of property should be construed strictly. 2 Dali. R. 316; 2 Mass. 143; 4 Hill, (N.Y.) R. 76, 92.
    Perhaps the two sections (5th and 11th) maybe reconciled by construing the Jatter to refer to actions between merchant and merchant. And there is good ground for this construction; for though the fifth section excepts “ all actions concerning the trade or merchandise between merchant and merchant,” yet there is no limitation provided for such actions, unless it be in the eleventh section. This court has decided, (Hazlip v. Leggett, 6 S. & M. 326,) that to a medical account sued in as-sumpsit, the limitation is six years.
    
      W. R. Miles, on same side.,
   Mr. Justice Thachee

delivered the opinion of the court.

The point in this case is the propriety of the judgment of the circuit court in sustaining demurrers to certain pleas of the statute of limitations.

The suit was instituted upon a bill of goods, wares and merchandise, charged in a store account, which, it appears by the record, were sold and delivered more than three years prior to the commencement of the action.

The act of June 7th, 1822, entitled “An act for the limitation of actions and certain proceedings in civil cases, and for preventing frivolous and vexatious suits,” by its eleventh section established the limitation for “all suits or actions founded upon any account for goods, wares or merchandise, sold and delivered, or for any articles charged in any store account,” at two years. Rev. Code, 185, sec. 11. The act of February 8th, 1827, entitled “An act to amend the forty-fifth section of the act entitled an act to reduce into one the several acts concerning the establishment, jurisdiction and powers of the superior courts of law, passed June 28th, 1S22, and for other purposes,” by its •third section repealed the limitation of two years mentioned in the eleventh section of the act of June 7th, 1822, above recited, and in lieu thereof established the limitation for all actions founded upon any account for goods, wares and merchandise, sold and delivered, or for any article charged in any store account, at three years. Laws of Miss. 1827, 127, sec. 3. This law of limitation was in force at the time the present cause of action accrued.

Some confusion has arisen from legislation, from time to time, upon the fourth section of the act of June 7th, 1822, Rev. Code, 184, sec. 4; but it need not be permitted to affect the present case. The “ actions of account and upon the case,” enumerated in that section, relate exclusively to special actions of that character, which is the more manifest from the provision of the eleventh section of the same act; consequently, the legislative changes made as to the fourth, do not at all affect the eleventh section.

The demurrer should have been overruled, and therefore the judgment is reversed and the cause remanded.  