this Court. In doing so, I am warranted by the decision of this Court at a former term; by which it was reso.ved, that that question should be reconsider d, and an argument upon it was directed by the Court, and has been accordingly had, at great length. In coming to this decision in favour APRIL, 1810. Dilliard V. Tomlinson. V. Muse and 461. 328. of a reconsideration, the Court was justified by innumerable precedents in this Court; in which the Court has admitted its own fallibility, and corrected its former errors. I will mention, in particular, the cases of Bedinger v. The Commonwealth (a) in which this Court disclaimed a juris- (a) 3 Call, diction which it had exercised in many former instances, two of which had also gotten into print,* (a circumstance which, with upright Judges, certainly can make no differ. ence,) and in which the Judges had also delivered seriatim opinions. Great as my respect is for this Court, I do not believe that it cannot err: nor can I believe that its decisions, if recent and erroneous, ought not to be corrected. I have the authority of Judge PENDLETON, in the case of Jolliffe v. Hite,(b) for saying that they ought. Considering (6) 1 Call, that the former judgment of this Court, in favour of a new argument of the question, is as obligatory upon us as the prior decision itself, which is the object of reconsideration; and that it has always been understood by the bar, and the parties concerned, that that question was to be reconsidered by the Court; I cannot but express my surprise, that the Judge who has gone before me, seems to have shrunk from the discussion thereof, and reposed himself upon the sanctity of the former decision. I will go farther, and say, that such reconsideration is not only proper, on general principles, in relation to the decisions of all fallible tribunals, but is peculiarly so, in relation to the particular decision now before us. That decision was a single and a recent decision: the appeal which seems to have been tendered to the Legislature upon it, by Judge PENDLETON, (3 * Vide Newell v. The Commonwealth, 2 Wash. 88. and Jones v. The Commonwealth, 1 Call, 555. APRIL, 1810. Dilliard Call, 119.) had been immediately acted upon by that body, and the decision of the Court was reversed, (if I may so express myself,) by a declaratory act of the Legislature: Tomlinson. and a rehearing of the question had shortly thereafter been Wyatt granted by this Court. Under these circumstances, (to say Muse and nothing of the probable state of the opinion of the bar, and the public,) the decision had not been considered by our citizens as final and irrevocable, nor had ripened into a rule of property. Few or none of the consequences, therefore, resulting from overturning the settled rules of property, can be expected to arise, in any event, in this case. Wife. In giving my opinion at present, I beg leave to have reference to, and to adopt, as part of this opinion, the one I formerly gave in this case. (3 Call, 109.) That opinion contains an imperfect, irregular, and rapid view of my ideas of the question, at that time: I shall now subjoin a few further observations upon it; but cannot omit declaring, that the ideas I submitted on that occasion, have, on long and mature deliberation and reflection, been rivetted upon my judgment, which, consequently, remains entirely unchanged. I begin by saying, that the position that a preceding law or statute is to be considered as unchanged by a new statute, until such change be clearly shewn to be operated thereby, emphatically exists in relation to a Legislature of revision. The Legislature of 1792 was a Legislature of revision, in relation to the general laws, although its powers to alter them is at the same time readily admitted. The committee appointed to report upon the laws, by the act of 1790, c. 20. were confined, by the terms thereof, to reducing multifarious acts into single acts; or, in other words, to the province of simplifying the laws, and not suggesting changes in them. Such was also the decision of the Le(a) See acts gislature of 1791, (a) in its resolution in answer to a letter, upon this subject, addressed to them by the revisors. When to these considerations we add, that the Legislature both before and after the enacting the act of 1792, viz of that session, p. 37. APRIL, 1810. Dilliard Tomlinson. V. Muse and Wife. when they enacted the act of 1790, c. 13. and that of January 22, 1802,(a) were steady in confining the exceptions in question to real estate only, it will require very strong features indeed, in the intermediate act of 1792, to extend them to personal estate also. I will here remark that Judge PENDLETON, in delivering his opinion formerly in this case, (3 Call, 119.) laid great stress upon the coinci(a) 1 Rev. dence of sentiment in the Legislature, it having, both in Code, p. 426. 1785 and 1792, (as he supposed,) declared, that land and personals should go the same way. While I must be permitted to say, that in relation to the construction of the act of 1792, that was taking for granted the very thing to be proved, I must beg leave to borrow and apply this strong argument of that great Judge, in relation to the acts of 1790 and 1802, both of which are clear beyond the possibility of a doubt, against the extension of the principle to personals; and the act of 1802 is a declaratory act in the very teeth of the former decision of this Court. Pendleton, 2 I take it to be an undoubted rule in the construction of statutes, that general words in a clause thereof may be restrained by particular words in another clause, subsequent thereto.(b) Applying this rule to the case before us, (b) 6 Bae. if, instead of the general reference in the act of distribu- 581.and Judge tions, for persons and proportions, to the act of descents, Call, 400. an insertion had been made in the first clause of the act of descents, extending it to personal as well as real estate, and to read thus: "That henceforth when any person having title to any real estate of inheritance (or personal estate) shall die, &c.; and if these words, "or personal estate" had been (as they are) omitted in the 5th and 6th sections, such omission, singly taken, would operate a restraint upon the general words, and narrow the operation of the said sections to real estate only: and à fortiori, when the terms "derived by purchase or descent," and the provisions relative to "curtesy and dower," (expressions and provisions which properly appertain to real estate, and not to personal,) are found therein, and still more so as the 6th VOL. I. APRIL, 1810. Dilliard section (as will be shewn hereafter) would be, as to personal estate, a mere nullity, on account of the incompetency of an infant to derive personal property from his moTomlinson. ther, it being intercepted by the superior claim of her husWyatt band. V. V. Muse and So, on the other hand, if, instead of such reference, or such insertion, a particular law of distribution of personal estate had been enacted, precisely similar to that of descents, merely substituting the terms "personal property" in lieu of "real estate of inheritance," and the 5th and 6th sections were still found therein precisely as they now exist; it might be reasonable to conclude, from the foregoing considerations, that they slipped into the act by mistake, related to a subject different from that of the act, belonged properly to another law, and did not apply to the case of personal estate at all. That, however, is a broader position than is necessary to be taken in this case; in which, considering the insertion to have been made as aforesaid, on the principle "referendi singula singulis," and of reading the act distributively, in relation to the different subjects thereof, the 5th and 6th sections would naturally fall within the class of the real, and be rejected in regard to the personal estate. The general reference in the distribution act to the descent act, for persons and proportions, certainly cannot operate any greater effect in applying the exceptions to personal estate, than if the canons of descent had been particularly repeated with respect to personal property, either in a joint or several act as aforesaid; in either of which cases (it has been endeavoured to be shewn) the 5th and 6th sections would be taken in a sense restricted to real estate. This mode of a general reference was adopted in the act of distributions for brevity only; and a specific insertion as to personal estate was only not made in the act of descents, because that act properly related to real and not personal estate, and the reference was properly made in the distribution act, because that act on the other hand properly related to personal estate. These were the only grounds and motives of the present arrangement, and therefore no greater effect will be produced than if a more particular and detailed adoption of the canons of descent had been resorted to, in relation to personal property. APRIL, 1810. Dilliard V. Tomlinson. Wyatt V. Wife. $8. Christian's note. I presume it is not necessary to quote authorities to shew, that a statute compounded of or relating to several Muse and subjects, may be read distributively in relation to each: nay, we are even told that the same words in a statute will bear different interpretations; and that these words may be considered as remedial, or penal, for example, (as the case may be,) according to the nature of the suit or prosecution founded thereon.(a) So, again, taking the construction of (a)1 Bl. Com. a statute by analogy to that of a will, which, when we are in quest of intention, must stand on a common foundation with it, (with this additional circumstance concerning the former, that the Legislature are supposed to know the meaning of the technical words they use, (whereas testators are considered in the law as inopes consilii,) and are, therefore, rather than a testator, to be bound by them,) we are told in the case of Forth v. Chapman(b) recognised in this Court in the case (8) P. ms. of Hill v. Burrow,(c) that if a will devises real and per- (c) 3 Cail, sonal estate to A.; and, if he die leaving no issue of his $51. body, then to B., that the devise shall be expounded to mean an indefinite failure of issue as to the real estate, and be restricted to issue living at the death as to the personal; shall be taken in a legal sense in relation to the former, and a vulgar sense in relation to the latter; and that the same words shall be taken in different senses as to the different estates, and the will be read as if it had been repeated by two several clauses. If this principle be extended to the case before us, and the compounded act in question be twice read, in relation to each subject, the 5th and 6th clauses will be considered as nullities when the act is read merely with respect to personal estate. If the act in question be not read distributively as to each subject, (the real and personal estate,) the term "infant" would be taken in one sense only, and infancy would be 663. |