On the trial the defendants justified the assault upon the ground that Connor had illegally attempted to take from their possession a steamboat. The prosecutor, on the other hand, justified the seizure as the *Page 388 collector of tolls due the Cape Fear Navigation Company. The jury found a special verdict to the substance following:
That the Cape Fear Navigation Company had appointed a place on the Cape Fear River where tolls were to be paid, and had authorized the prosecutor to collect them; that on the day before the assault was committed the steamboat John Walker arrived in the river opposite to the place where the tolls were to be paid, when she was hailed by the prosecutor, who demanded of the defendants, who were on board, the tolls due on her cargo, which was refused, and the boat kept under way against the orders of the prosecutor, up the river to a wharf, about three hundred yards above the place where the tolls were demanded, where her cargo was usually discharged; that on the next day, before the (479) cargo was discharged, the prosecutor having again demanded the tolls, which were refused, attempted to go on board and seize the boat, which was resisted by the defendants, when the assault was committed. Four point were presented by the verdict, and in case either of them were decided negatively, then the jury found the defendants not guilty. The points were:
1. Whether that part of the act of incorporation which authorized a seizure of the boat was constitutional.
2. Whether the demands for the toll could be made on the Cape Fear River.
3. Could the seizure be made on the day after the demand was made?
4. When the boat had arrived at her place of discharge?
His Honor, being of opinion that the section of the act of incorporation which authorized the seizure was unconstitutional, discharged the defendants, and Mr. Solicitor Troy appealed. The first question arising out of the special verdict is whether the power granted by the charter incorporating the (480) company, and giving the right to seize the boat is constitutional. We think it is constitutional. The Act of 1815, entitled "An act concerning the navigation of Cape Fear River," changed the name of the "Deep and Haw River Navigation Company" to that of the "Cape Fear Navigation Company," and gave it all the rights, privileges, and franchises granted to the "Roanoke Navigation Company," by certain sections of the Act of 1812, entitled "An act for improving the navigation of Roanoke River, from the town of Halifax to the place where the Virginia line intersects the same." The Act of 1815 adopts those sections, and among them is the eighth, and declares that they shall *Page 389 constitute and form a part of the charter of the "Deep and Haw River Navigation Company." By the eighth section of the Act of 1812, the Roanoke Company are authorized to demand and receive at some convenient place or places, at or near the Falls of Roanoke, for all commodities transported through any canal, lock, or sluice, made by the said company, tolls according to the following table and rates, etc." After setting out the table of rates, the section proceeds, "That if any person or persons shall refuse to pay the tolls at the time of offering to pass the places appointed for their collection, and previous to passing the same, the collectors, respectively, may lawfully refuse passage to the person or persons so refusing; and if any vessel shall pass without paying the toll, then the said collectors, respectively, may lawfully seize such boat or vessel and sell the same at auction for ready money, after advertising the sale at least ten days," the money to be first applied to the payment of the tolls and expenses of seizure and sale, and the balance to the owner of the boat. This remedy is given in addition to the personal liability of the owner of the boat, to secure the tolls to the company.
The prosecutor, who was collector of the tolls due the Cape Fear Navigation Company, went, in the manner stated in the case, on board of the boat to seize and sell her, according to the directions of the eighth section of the Act of 1812, when he was assaulted by the defendants and driven from the boat, on the ground, as they say, that he (481) had no legal or constitutional authority to seize and sell the same to pay the tolls, and therefore they made the assault in a necessary defense of their own property, which was about to be forcibly and illegally taken from them, and that they had no opportunity or right, by the Act of 1812, to contest the demands of the prosecutor in any court of justice. We think the law gave the defendants a right to have the claims of the prosecutor judicially investigated; they might, on the distress being made, have replevied the property, and had the proceedings returned into a court of record, and had its judgment on the rights of the parties. The writ of replevin is a common-law proceeding, and may be used in this State, and is a remedy incident to every species of distress without process. It has frequently been used in this as well as in all the states of the Confederacy, which have adopted the common law. The objection, therefore, that the property of the defendants might have been taken from them, under the eighth section of the Act of 1812, without giving them an opportunity to defend themselves against any unjust claims for tolls, is not tenable, and will not avail in this case.
The second ground of defense is that the demand of tolls could not be made on the Cape Fear River. By the second section of the Act of 1815, the rights, "privileges, and franchises of the Deep and Haw River Navigation Company shall extend from the sources of the several rivers and *Page 390 creeks running into the Cape Fear River, to the mouth of said river." By the seventh section of the same act it is declared thus: "And whereas, by improving the navigation of the Cape Fear River, and the various streams that run into the said river, the company will become entitled to tolls atdifferent places, but of unequal amount: Be it enacted, that the stockholders, or a majority of them, in a general meeting, shall have power to regulate and determine the tolls which shall be paid, and from time to time alter the said tolls."
It appears from this section that the company are to be paid tolls; we perceive that there is a navigation company formed; it has (482) rights, privileges, and franchises from the sources of the Cape Fear River to its mouth; the company have a right to regulate and determine by their by-laws what tolls shall be paid, so as not to exceed fifteen per cent on their capital stock. this toll is directed by law to be paid. But where are they to be paid? ask the defendants. They call our attention to the eighth section of the Act of 1812, adopted by the Act of 1815, and say if the collector, under this section, sets up a right to seize our vessel, we have a right to say that his demand of toll must be made according to the very same section, "at some convenient place or places, at or near the Falls of Roanoke," and if a seizure is made before a demand of the tolls shall have been made, at some convenient place near the Falls of Roanoke, it will be illegal, and we have a right to resist it. If by adhering to the letter of the Act of 1815, with its adopted sections of the Act of 1812, we disappoint the intention of the Legislature, and defeat the object contemplated, we may be sure that our construction is improper, but if we place a construction on the act which will carry the intention of the makers into execution, and effectuate the object contemplated, we may be equally sure our construction is right. What was the intention of the Legislature? This is gathered from reading the whole act, as we gather the intention of parties to a deed or other written contract by reading the whole of it. I presume the Legislature intended by the act of incorporation to enable the company to raise a capital by means of which the river Cape Fear should be made navigable, and that the owners of the capital should be rewarded for the use of it by taking at different "convenient places" tolls on vessels and commodities passing along the river, so that the tolls should not exceed fifteen per cent. If the tolls for passing up and down the Cape Fear River were to be demanded at a place near the Falls of Roanoke River (a distance of nearly one hundred and fifty miles from the Cape Fear River), before they could be legally collected, the object and intention of the Legislature in passing the Act of 1815 would (483) be frustrated. If we were to hold that the demand was to be made at or near the Falls of Roanoke, and upon a refusal to pay *Page 391 there, that the vessel and goods should be distrained on the Cape Fear River, such a construction would at once be tantamount to a repeal of the law. This act of Assembly, not being a penal act, but passed for a purpose highly beneficial to the country, must receive a fair and liberal interpretation. The tolls by the act are to be paid, and I think they may be demanded at some reasonable and convenient place near to the place for the use of which they became due. Would it not be monstrous to tell the debtors for tolls on the Cape Fear River that they must go to the collector's office at or near the Falls of Roanoke to pay them? I think it equally absurd to require the company to demand its debts due as tolls from the captains of boats for using the Cape Fear River at the Falls of the Roanoke before a distress for them could be resorted to.
Where there is a saving clause in a statute, which is repugnant to the purview or enacting part of it, it is void. (1 Co., 47; Plowd., 564; 14 Petersdorffs Ab., 719, 720.)
The intention is to be collected from the express words of the particular clauses in each statute, and where the object and intention is clear, it is not to be defeated by the letter or wording of any particular clause, for every statute is to be expounded, not according to the letter, but the intention of the makers of it. (Curlen v. Chanklin, 3 M. and S., 510; 14 Petersdorffs Ab., 716.)
If does not appear from the case that there is any such as the Falls of Cape Fear River; the place of collection of the tolls due must be at some reasonable and convenient place, and it does not appear that the place mentioned in the case is an improper one.
If the demand of toll could be made at the place mentioned in the case, which I think it might, the next question made by the verdict is, "Could the seizure be made on the day succeeding the day of the demand?" The answer to the question, appears to me, ought to be in the affirmative. I see no reason why the boat should not be distrained the next day for a debt which she owed for tolls the day before, which had been then demanded and refused to be paid. (484)
The next question is, "Could the seizure be made after the boat had arrived at the wharf?" By the eighth section of the Act of 1812, the collector may refuse the passage of a boat upon an omission to pay the tolls demanded, but the section proceeds, that "if any vessel shall pass without paying the tolls, then the said collectors, respectively, may lawfully seize such boat or vessel." I think it a very convenient time and place for the collector to distrain when the boat came to the wharf; certainly it would be as legal to arrest the boat there as in the stream. After reviewing the whole case, I think the judgment of the Superior Court should be reversed, and judgment entered for the State.
PER CURIAM. Judgment reversed. *Page 392
(485)