Ezekiel vs. Dixon.

the law; and this will put a stop to the fatal liberty of explaining. When the code of laws is once fixed, it should be observed in the literal sense; and nothing more is left to the judge, than to determine whether an action be or be not conformable to the written law. When the rule of right, which ought to direct the actions of the philosopher as well as the ignorant, is a matter of controversy, not of fact, the people are slaves to the magistrates."

Shall truths like these bring upon their author the classical reproach, qui haeret in litera, haeret in cortice? They are far too enlightened for the soil (Milan) which gave birth to them. They would confer honour even on the conscript fathers of our own republic. The most stern and stubborn devotee to liberty and limited government, never gave utterance to sounder or more salutary sentiments.

Mr. Bisset, author of the Life of Burke, and of the History of the reign of George III., makes the following admirable and appropriate reflections in referring to the retirement of Lord Mansfield from the King's Bench.

"For comprehending the law of this particular country, William Murray, a man of the most acute and extensive genius, had prepared himself by a profound study of history, general ethics, the philosophy of jurisprudence, the investigation of human passions and conduct, and the civil law, on which the judicial institutions of so great a part of modern Europe are founded. On this basis he raised his superstructure of knowledge of the English code. To the depths of legal science, the accuracy and extent of juridical details, he added the pleasing and impressive accomplishments of an engaging, graceful and persuasive eloquence. From such an union and extent of qualifications, Mr. Murray very early rose to most distinguished practice. With such opportunities of observing the circumstances of society, of civil actions and engagements, and criminal perpetrations, his penetrating and comprehensive mind saw that the progress of social, and especially commercial intercourse, was producing new combinations, which had not been specially foreseen when the laws applied to such subjects were enacted; therefore he inferred that the essential principles of justice required such a latitude of interpretation as would render existing laws applicable to the new cases.

"The intelligent reader must know that there are two great standards of judicial interpretation; the one the authority custom, decision and statute, according to the literal de

Ezekiel vs. Dixon.

the other according to the general principles of equity construing particular law, written or unwritten, in such a way as best to answer the great ends of justice. The learned reader must recollect that, at Rome, two sects of civilians arose from the abovementioned difference, the Proculians and the Sabinians, taking their names from two eminent jurists. The first of these, resting entirely on authority and definition, merely considered the letter of the law. The second, interpreting more freely, endeavoured to adapt it to their conceptions of justice in the case. Each of these modes has advantages and disadvantages; by the former, parties may know the exact rule by which their dispute will be tried, but may find the literal judge difficulted in applying his rule to their case, or entangled by precedents, forms and definitions, unable to solve the question agreeably to substantial justice; by the latter, the parties may, from a just and competent judge, expect an equitable determination of the question: but they depend on his individual understanding and integrity. By deviating from literal explanation, in the progress of construction the law may be changed, and thus the judge become a legislator. During the republican periods of the Roman law, strict and rigid interpretation of usages and decrees prevailed; during its imperial history, latitude of construction was gradually substituted, and when Trebonian and his associate civilians digested the laws into one great body under Justinian, its constructive character predominated; hence modern jurists, whose legal doctrines have owed a great part of their formation to the civil law, have interpreted freely.

"The close precision of English reasoning has diffused itself through municipal institutions, and, combining with the English accurate sense of justice, has in the great body of the law made so specific provisions for all cases, when the laws were enacted likely to occur, that it may be safely advanced as a general position, that in every question within the knowledge, foresight and intent of our lawgivers, the more nearly the decision follows the letter of the law, the more fully will the purposes of justice be answered; but when combinations of engagements and conduct arise, which law-givers have not specifically anticipated, and on which the judge is called to give decision, he must apply the constructive character of the civil law."

The Historian and Reviewer, after noticing the fact that his great favourite verged more to constructive than literal interpretation, "partly from that powerful and comprehensive genius,

Ezekiel vs. Dixon.

which, in seeking its ends, might less regard customary details than adequacy of means," thus concludes: "Perhaps on the whole, unless a judge be uncommonly sagacious and able, literal interpretation, keeping as closely as possible to precedent and statute, if in some cases it may be an obstacle to what is right, yet in a much greater variety, is a preventive of what is wrong."

Who does not see in this picture the shadowy outline of the two great political parties which divided this country at the formation of the Government ? Instead of taking the constitution (our supreme law,) as it is, and adhering to it in good faith, the friends of consolidation have sought by interpretation to make it what they would have it to be. And this was threatened in the convention that formed it, if the annals of the times are to be credited. Had latitudinary interpretation-the ever-fruitful source of disputation and strife-been eschewed from the beginning, we should, as a nation, have escaped those heart-burnings and contentions which have repeatedly menaced the overthrow of our beloved Union.

With these general observations as lights to our path, what, I ask, is the plain reading of the act of 1818, as heretofore quoted? And, to collect its meaning, let us look to the law itself, leaving out of view title, preamble and proviso. I would remark, however, that the title is in strict conformity to the enacting clause. That the preamble cannot of course restrain the body of the act. (2 Har. & Johns. 69.) The difficulty here is, that the preamble is larger than the act itself; and as to the proviso, it does not affect, in the remotest manner, the body of the act. And besides, it confers no new right. There never was a time when an insolvent person might not bona fide and absolutely sell and dispose of his property, provided it was free from any trust.

I recur then to the question, what is the intent of this act? [2.] It speaks for itself, and in the most clear and unambiguous language. It declares that any person unable to pay his debts, who shall make an assignment of his property in trust to another, in satisfaction of any debt, or in part payment thereof, for the use and benefit of his creditors or any other person, by which any creditor of the debtor shall be excluded from an equal share or portion of the estate so assigned, such conveyance shall be void as against the creditor or creditors so excluded.

Is not, I ask, the transfer from Lichton to Dixon & Lichton [3.] the Daguerreotype likeness of the one prohibited by the act? Nathan Lichton, admitted to be insolvent, assigns the whole of his

Ezekiel vs. Dixon.

effects to George M. Dixon and Simon Lichton, in trust—first to pay them for their trouble, and then in payment of certain creditors, provided they will file their release in a given time; and this is done to the exclusion of Emanuel Ezekiel, the plaintiff in attachment. To sustain this instrument is to repeal the statute. If this deed is not condemned by it, nothing can be. It is drawn in the very teeth of the act; and what is there out of the body of the statute to help it?

The title of the act is to prevent partial assignments. The preamble asserts, that any preference given to particular creditors by insolvents, is unjust; and the act then proceeds to designate a particular mode in which this shall not be done-no doubt the mischief which the Assembly had in its eye at the time. It then concludes by declaring, that notwithstanding this class of conveyances was prohibited, that it was not their design to prevent any person from making a bona fide and absolute sale of his property. And because a preference might still be made in this way, by selling the property either to the creditor himself, or to a third person, and paying over to the favoured creditor the proceeds in extinguishment of his demand, it is gravely insisted that it was unreasonable to forbid a preference being made in the way now attempted. This may be true; still, had they not the right thus to discriminate with or without reason-yea, even against reason? And are not courts powerless to interfere? And yet I feel it due to the authors of this act, to say, that I can see many reasons why a direct sale would be tolerated, and this species of conveyance to relatives and friends in trust for creditors, repudiated.

But I am content to shield myself under the obvious import of the terms of the statute itself. I shall always deem it my duty to conform to the express will of the Legislature when the statute is constitutional, reasonable, effectual, and free from obscurity. And when the language, as in this instance, is clear, direct, and positive, leading to no absurd results but affording a suitable if not a sufficient remedy to an existing evil, I do not feel at liberty to speculate upon the imperfection of the law as it is. I repeat it, for it is a vital truth, and one which cannot be too often reiterated, that there is nothing more fatal to the security of person and property, than the uncertainty which must necessarily attend that law which looks to the Bench for its occult meaning. No citizen, no attorney, ever can calculate exactly in such a contingency. Hence the discontent always evinced at this method of interpreting laws.

Barker vs. Bethune and another.

In the one mode the whole profession harmonize. In the other there is not, and, from the nature of the case, never can be, either uniformity or stability.

Judgment reversed.

No. 26.-R. & G. BARKER, plaintiffs in error. vs. JAMES N. BETHUNE and DANIEL MCDOUGALD, defendants in error.

[1.] Where a claim case is pending under the provisions of our statute, in the name of R. & G. Barker, for the use of A. B. Davis, administrator of Benjamin P. Tarver, held, that on the death of Davis, the suit abated until the legal representative of Tarver was made a party.

Claim. From Muscogee Superior Court. Judge ALEXANDER presiding. May Term, 1847.

At April Term, 1842, of Muscogee Superior Court, the plaintiffs in error, who petitioned for the use of Arthur B. Davis, administrator of Benjamin P. Tarver, deceased, obtained a rule nisi for the foreclosure of a mortgage made by one James S. Moore and Milton J. Tarver, on certain lots in the city of Columbus. At October Term, 1842, the rule was made absolute, and the property ordered to be sold. On the 30th day of January, 1843, a mortgage fi. fa. was issued, which on the 3d day of March, 1846, was levied on the property mortgaged. On the 2d day of June the defendants in error, James N. Bethune and Daniel McDougald, interposed a claim to the property levied on, and the claim was returned to the November Term, 1846, of the Court below.

At that term the claim was tried and the property found subject; and the claimants appealed.

At May Term, 1847, the claimants suggested on the record the death of said Arthur B. Davis, administrator, &c.

Whereupon, the Court below ruled that the claim cause should be suspended, until the personal representative of said Tarver should be made a party.

To this decision of the Court below, the plaintiffs in error excepted, and assign the same in this Court for error.