Simmons v. Blackman

14 Ga. 318

• Court: Supreme Court of Georgia
• Decided: October 15, 1853
• Docket: No. 45
• Status: Published

Opinion

By the Court.

Starnes, J.,

delivering the opinion.

[l.J In this case, the Court below refused evidence to support the plea of partial failure of consideration, on the ground, that by the Act of 26th December, 1836, (Cobb’s Rf. Big. 490) such plea could be made available only in such cases, under such circumstances, and between such parties as would now admit the plea of total failure of consideration; and that, as this case would not admit the plea of total failure of consideration, the other plea could not be made available.

At Common Law, a plea of partial failure of consideration might have been pleaded. But it seems that doubts arose in some places in our State, on this subject; and this was the mischief which the Legislature intended to remedy, in the passage of this Act.

Its phraseology is loose and inaccurate; but the object undeniably was, to allow a plea of partial failure, “ In such cases, under such circumstances, and between such parties” as would render proper, a plea of total failure, if there had been such total failure of consideration. The words, though inaccurate, admit of this reasonable construction.

A construction given to the Act, which declares that a partial failure can only be pleaded in a case of total failure, entirely thwarts the intention of the law-maker, the purpose of the Act, and makes it wholly superfluous legislation.

Lord Bacon says, that the words of a Statute are never to be taken “ To an unreasonable or impertinent, or repugnant extent. (Bacon’s Maxims, 52.)

“ Every Statute ought to be expounded, not according to the letter, but to the moaning.” (Dwarris on Statutes, 690.)

“ A remedial Act shall be so construed as most effectually to meet the beneficial end. in view, and to prevent a failure of the remedy.” (Ibid, 718.)

Let the judgment bo reversed.