Tuck, J.,
delivered the opinion of this court.
Under the first exception the counsel have discussed the applicability of the act of 1846, ch. 346, to cases instituted for the recovery of damages for injuries to negro property, the validity of that act, and the effect of the defendants’ release to the witnesses whose testimony was objected to, it being contended, on the part of the appellant, that the act is valid, and applies a rule of evidence to the case under consideration, for the benefit of the plaintiff below, from which he could not be deprived by the release offered in evidence.
By the act of 1838, ch. 244, rail road companies in this State are made responsible “for injuries resulting in death, or otherwise, inflicted upon any stock, as cattle, horses, sheep, hogs, &.c., or by fire, occasioned by their engines or carriages, upon any of their roads,” dec., &c. The act of 1837, ch. 309, had given a remedy for injuries to woods, fields or other property, burned or injured by fire or sparks from rail road engines. The act of 1841, ch. 266, which is entitled a supplement to both these acts, provides that all the remedies which are given by them, or by either of them, “shall apply and extend to every description of property and estate, whether [276]*276real or personal, and to all manner of title and interest in or to any property or estate, whether legal or equitable, and that the said acts shall be so construed by all.the courts of this State, in all cases depending or to be instituted to recover damages under the said acts of Assembly or either of them.” The act of 1846, ch. 346, is a supplement to that of 1838, ch. 244, not referring in any manner to those of 1837 and 1841. The first section provides, “that the owner of any horse, cow, mule, hog or sheep, <fcc., killed or injured by the engines or cars of either of the rail road companies of this State, shall .recover full damages and costs for such killing or injury.” The second'section declares: “That it shall be competent for said rail road company to prove; by disinterested witnesses, that the damage or injury sustained was the result of unavoidable accident, and if satisfactory evidence be adduced before the tribunal trying the issue, said rail road company shall not be liable; but it shall not be competent for said rail road company in any trial had in pursuance of this act, to adduce the evidence of any conductor, agent, or other person in the employ of said rail road company, who may be conducting the engine or driving the cars which may do the killing or injury as aforesaid, or the evidence of any agent or employer (employee) who may be acting in the capacity of agent, and responsible as such to said rail road company, for negligence, carelessness or wilfulness, by which any stock may be killed or injured as contemplated by this act.”
It will be observed that neither of these acts prescribe a rule of evidence for the support of the actions which they authorize, except the last. But it is contended, on the part of the appellant, that being in pari materia, they must be considered as parts of one remedial act, designed to suppress the same mischief as to every description of property, and that, therefore, the rule of exclusion directed against the officers and agents of the company, when offered as witnesses where stock is destroyed, is equally applicable in this case, the subject of the injury being within the general terms of the act of 1841.
The general rules for the interpretation, of statutes recognized in the cases of State vs. Boyd, 2 G. & J., 374, and [277]*277Canal Co. vs. Rail Road Co., 4 G. & J., 152, are not to be denied; but they are not the only principles applicable to cases like the present. And while it is conceded, thaCremedial acts are to receive a liberal construction for the advancement of the remedy, and to prevent the mischiefs within the intent and meaning of the acts, it must be remembered that this is but a secondary rule, and not always to be observed. Dwarris on Statutes, 735. “Statutes are sometimes extended to cases not within the letter of them, and cases are sometimes excluded from the operation of statutes, though within the letter:” for the purpose of giving effect to the intent of the law makers, 2 G. J., 374. But here the point is, to ascertain whether the Legislature did intend that the rule of evidence, in this act of 1846, should be extended to actions for other kinds of property than those mentioned.
The words of the act are first to be resorted to, and if these are plain in their import they ought to be followed. The most eminent judges have expressed regret, that this cardinal rule has been so often departed from, and statutes construed to embrace cases not within the letter — rather presuming what the Legislature meant, than gathering their intent from the language of the law, and this has been done generally, in order that a particular grievance might not go unredressed, when the law makers had not made special provision for such cases; Lord Tenterden said in 6 B. & C., 475, “there is always danger in giving effect to what is called the equity of a statute; it is much safer and better to rely on and abide by the plain words, although the Legislature might have provided for other cases, had their attention been directed to them. ” This caution is particularly to be observed, where that construction is opposed by other rules. General words are sometimes used by way of example, and by construction, lesser cases are included. But, on the contrary, the words employed are sometimes restrictive, and exclude things not mentioned, as in Rex vs. Cunningham, 5 East., 478, where the statute of 43 Elizabeth, ch. 2, in relation to coal mines, was held not to include tin, lead and copper mines. The presumption is, that the Legislature will express its meaning in language to be understood, and the rea[278]*278son why acts are extended beyond the letter is, that all cases cannot be foreseen and provided for in terms; but it must be within the same mischief or cause of making the act. Co. Litt., 24, sec. 2. We are not to enlarge statutes, so as to embrace every possible wrong that the Legislature might have included in the same act;-but it must be collected from the act that the wrong sought to be redressed, was one of the considerations for passing the act. If this conclusion cannot be arrived at, it is a casus omissus, which a court of law cannot supply. 5 Com. Dig., Parliament R., 13. Jones vs. Smart, 1 Term Rep., 52.
The act of 1846, like that of 1838, enumerates particular kinds of property, and covers every description of stock. And although the act of 1841, enlarges the application of the act of 1838, by embracing all property, it is remarkable that the Legislature, with these acts before them,.when the last was passed, if slaves were in their contemplation, should have in terms confined it to a particular description of property, and, in prescribing a rule of evidence to give effect to the remedy, have omitted all mention of the most valuable of personal estate, and left its owners to the uncertain equitable construction of that portion of the act, which is said to afford the only substantial protection to the master. The case appears to be within the doctrine of Rex vs. Cunningham. The words must be taken in their ordinary acceptation. Dwarris, 702. The terms “stock” and “et
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Tuck, J.,
delivered the opinion of this court.
Under the first exception the counsel have discussed the applicability of the act of 1846, ch. 346, to cases instituted for the recovery of damages for injuries to negro property, the validity of that act, and the effect of the defendants’ release to the witnesses whose testimony was objected to, it being contended, on the part of the appellant, that the act is valid, and applies a rule of evidence to the case under consideration, for the benefit of the plaintiff below, from which he could not be deprived by the release offered in evidence.
By the act of 1838, ch. 244, rail road companies in this State are made responsible “for injuries resulting in death, or otherwise, inflicted upon any stock, as cattle, horses, sheep, hogs, &.c., or by fire, occasioned by their engines or carriages, upon any of their roads,” dec., &c. The act of 1837, ch. 309, had given a remedy for injuries to woods, fields or other property, burned or injured by fire or sparks from rail road engines. The act of 1841, ch. 266, which is entitled a supplement to both these acts, provides that all the remedies which are given by them, or by either of them, “shall apply and extend to every description of property and estate, whether [276]*276real or personal, and to all manner of title and interest in or to any property or estate, whether legal or equitable, and that the said acts shall be so construed by all.the courts of this State, in all cases depending or to be instituted to recover damages under the said acts of Assembly or either of them.” The act of 1846, ch. 346, is a supplement to that of 1838, ch. 244, not referring in any manner to those of 1837 and 1841. The first section provides, “that the owner of any horse, cow, mule, hog or sheep, <fcc., killed or injured by the engines or cars of either of the rail road companies of this State, shall .recover full damages and costs for such killing or injury.” The second'section declares: “That it shall be competent for said rail road company to prove; by disinterested witnesses, that the damage or injury sustained was the result of unavoidable accident, and if satisfactory evidence be adduced before the tribunal trying the issue, said rail road company shall not be liable; but it shall not be competent for said rail road company in any trial had in pursuance of this act, to adduce the evidence of any conductor, agent, or other person in the employ of said rail road company, who may be conducting the engine or driving the cars which may do the killing or injury as aforesaid, or the evidence of any agent or employer (employee) who may be acting in the capacity of agent, and responsible as such to said rail road company, for negligence, carelessness or wilfulness, by which any stock may be killed or injured as contemplated by this act.”
It will be observed that neither of these acts prescribe a rule of evidence for the support of the actions which they authorize, except the last. But it is contended, on the part of the appellant, that being in pari materia, they must be considered as parts of one remedial act, designed to suppress the same mischief as to every description of property, and that, therefore, the rule of exclusion directed against the officers and agents of the company, when offered as witnesses where stock is destroyed, is equally applicable in this case, the subject of the injury being within the general terms of the act of 1841.
The general rules for the interpretation, of statutes recognized in the cases of State vs. Boyd, 2 G. & J., 374, and [277]*277Canal Co. vs. Rail Road Co., 4 G. & J., 152, are not to be denied; but they are not the only principles applicable to cases like the present. And while it is conceded, thaCremedial acts are to receive a liberal construction for the advancement of the remedy, and to prevent the mischiefs within the intent and meaning of the acts, it must be remembered that this is but a secondary rule, and not always to be observed. Dwarris on Statutes, 735. “Statutes are sometimes extended to cases not within the letter of them, and cases are sometimes excluded from the operation of statutes, though within the letter:” for the purpose of giving effect to the intent of the law makers, 2 G. J., 374. But here the point is, to ascertain whether the Legislature did intend that the rule of evidence, in this act of 1846, should be extended to actions for other kinds of property than those mentioned.
The words of the act are first to be resorted to, and if these are plain in their import they ought to be followed. The most eminent judges have expressed regret, that this cardinal rule has been so often departed from, and statutes construed to embrace cases not within the letter — rather presuming what the Legislature meant, than gathering their intent from the language of the law, and this has been done generally, in order that a particular grievance might not go unredressed, when the law makers had not made special provision for such cases; Lord Tenterden said in 6 B. & C., 475, “there is always danger in giving effect to what is called the equity of a statute; it is much safer and better to rely on and abide by the plain words, although the Legislature might have provided for other cases, had their attention been directed to them. ” This caution is particularly to be observed, where that construction is opposed by other rules. General words are sometimes used by way of example, and by construction, lesser cases are included. But, on the contrary, the words employed are sometimes restrictive, and exclude things not mentioned, as in Rex vs. Cunningham, 5 East., 478, where the statute of 43 Elizabeth, ch. 2, in relation to coal mines, was held not to include tin, lead and copper mines. The presumption is, that the Legislature will express its meaning in language to be understood, and the rea[278]*278son why acts are extended beyond the letter is, that all cases cannot be foreseen and provided for in terms; but it must be within the same mischief or cause of making the act. Co. Litt., 24, sec. 2. We are not to enlarge statutes, so as to embrace every possible wrong that the Legislature might have included in the same act;-but it must be collected from the act that the wrong sought to be redressed, was one of the considerations for passing the act. If this conclusion cannot be arrived at, it is a casus omissus, which a court of law cannot supply. 5 Com. Dig., Parliament R., 13. Jones vs. Smart, 1 Term Rep., 52.
The act of 1846, like that of 1838, enumerates particular kinds of property, and covers every description of stock. And although the act of 1841, enlarges the application of the act of 1838, by embracing all property, it is remarkable that the Legislature, with these acts before them,.when the last was passed, if slaves were in their contemplation, should have in terms confined it to a particular description of property, and, in prescribing a rule of evidence to give effect to the remedy, have omitted all mention of the most valuable of personal estate, and left its owners to the uncertain equitable construction of that portion of the act, which is said to afford the only substantial protection to the master. The case appears to be within the doctrine of Rex vs. Cunningham. The words must be taken in their ordinary acceptation. Dwarris, 702. The terms “stock” and “et cetera,” employed in this act, certainly embrace other things not enumerated, but we cannot discover that they were designed to include negroes. Besides the special mention of property, in the first section, the second confines the in competency of the persons designated, to cases of liability on account of negligence, by which any stock may be killed or injured. And we think it as reasonable to suppose that negroes were intentionally omitted, because of their greater .capacity to avoid such dangers than stock, as that they were designed to be comprehended by the general terms emplojmd.
We are not now inquiring whether the second section of the act of 1846 is valid or not, but, merely, in what cases the [279]*279new rule of evidence if prescribes was designed by the Legislature to operate. If this were a strictly penal statute the company certainly would not be amenable to its provisions. For a case in point, see Dwarris, 737. 3 Bingham, 580. But though not of that character, these acts are special in their operation, imputing culpable negligence to the agents of the companies, for which they are made responsible, unless they can establish their own innocence, and, with the burden of proof thus, cast upon them, the act of 1846 takes away the common law right to have their cases tried upon principles common to other suitors in the same court. The charter of the appellee secures the capacity to sue and be sued, subject of course, to subsequent legislation for the general administration of justice. When, therefore, an act of Assembly denies to one class of suitors a remedy or defence which others enjoy, and tire question is, as to the application of its provisions to cases not specified, and that depends on the doctrines of equitable construction in view of the intent of the lawmakers, the court should be satisfied, before extending its operation beyond the language employed, that the case is within the mischief or occasion that was in the minds of the Legislature at the time of its passage. For we are not to presume, that the Legislature design to make innovations upon the common law, or to take away the company’s rights by implication. 3 Kent. 464. Warner vs. Fowler, 8 Md. Rep., 30.
We are not prepared to say, as contended in argument, that the safety of passengers in the cars must be regarded in the application of the remedy provided by these acts. That it was a proper subject of legislative concern none will deny, but we look in vain, for any such motive for passing these laws. The sole object seems to have been the protection of property on and along the roads. None can sue, under their provisions, except those who may suffer by the destruction of property. It is manifest that, in an action by a passenger, for personal injuries sustained on the road, the rule of evidence prescribed in the act of 1846, would not avail him, and while the owner of stock injured by the cars on the same occasion, might recover, by excluding certain witnesses, a passenger [280]*280might fail in his suit, by the application of the common law rule; and the anomaly would occur of two suits in the same court, tried and determined upon different principles of evidence. In a case of doubt, upori the words, such considerations would apply, but where they appear to have been overlooked by the Legislature, and the anomalous effect may be as we have suggested, we do not think the act should operate beyond the plain import of its language, and when a plaintiff claims the benefit of its provisions his case ought to show that he is entitled to the remedy in the form in which he seeks to have it administered.
■ Upon a careful consideration of the subject, we are of opinion, that this case is not provided for by the second section of the act of 1846, and that the plaintiff was rightfully held to. the common law doctrine, of evidence. Dwarris, 711. Brown's Maxims, 39.
This view of the first proposition renders it unnecessary, if .not improper, to discuss the validity of. the second section of the act of 1846. Such grave questions should not be passed upon, unless the point necessarily arises, and gives to the judicial expression a decisive effect in the particular case, which cannot be affirmed, where the act in review has no application to the matter in hand.
We are next to inquire whether the release restored the competency of these witnesses, conceding, that they were before incompetent. There is no proof that the paper was executed by the president of the company; but it was under their seal, professing to have been executed by the proper officer, and was actually exhibited and filed in court, as their act and deed, for the purpose of affecting the course of judicial proceedings. If it had not been properly executed the company would not, afterwards, in any court, in a trial by it against these witnesses, for negligence in this particular act, be heard to deny its validity. Such a defence, after it had obtained the benefit of the paper as a release under seal, would be a fraud upon the administration of justice not to be tolerated. The case of Phil. Wil. & Balt. R. R. Co. vs. Howard, 13 Howard, 307, 335, is directly in point, where the corporation, [281]*281having been sued in assumpsit, and defeated the action, on the ground that tire contract was under the seal of the company, was not allowed, in a subsequent action of covenant on the sealed agreement, to show that the instrument sued on had not been properly sealed. The court said, (p. 337.) “we are clearly of opinion, that the defendant cannot be heard to say, that what was asserted on the former trial was false, even if the assertion was made by mistake.” The party having had the benefit of the instrument in one action was held to be bound by it in another.
We perceive no error growing out of the form of the release. The liability of the witnesses to the company was merely contingent, depending on the result of this suit, so far as the verdict could be relied on as the measure of damages, and the company could have released no certain amount. These releases must necessarily be of this, or some such form. The party thereby undertakes to give up something that he may gain by the verdict, or to discharge a liability to himself that may be fixed thereby.
The second exception relates to the testimony of Benson. It was agreed, that his evidence should be taken as set forth in the affidavit, “as if he was present.” We think the correct reading of this agreement is, that his statement should be received to have the same effect, as if the same matter had been offered by him ore tenus, and that any thing that could have then been objected to was equally inadmissible, when presented as part of the affidavit. The parties must have meant this, otherwise the agreement would not have contained any such qualifications. The statements of Benson, objected to, being merely his opinions, we think they were properly excluded.
Judgment affirmed.