On Petition for a Rehearing.
Zollars, C. J. —That the liability of a surety is strictissimi juris, and not to be extended by construction, and that ita lex scripta est must control in deciding what the statute law is, are propositions well settled, and were not overlooked in the decision of the case. Nevertheless, when there is a contention as to the proper construction of a statute, it is always proper to consider what rights were intended to be secured, or what evils were intended to be provided against, by the legislation. Nor was the general rule overlooked, that where a new law covers the whole subject-matter of the former, is inconsistent with it, and evidently intended to supersede and take the place of it, it repeals the old law by implication-. To hold that the surety in appeal bonds is bound to the full extent of the law requiring--the bond, is not to extend his liability, because the law expressly declares that he shall be thus bound; and where he executes such a bond, he is bound to know, and must be held to have known, that his liability will not be measured alone by a defective bond, but also by the law requiring the bond. And then too, the bond in question here was executed when the decision of this court, in the case of Jones v. Droneberger, 23 Ind. 74, holding that the obligors upon an appeal bond in such a case as *350this, are liable for the rents, pending the appeal, was unchallenged. The main argument by counsel for appellant is that section 44, chapter 37, R. S. 1843, was not in force: First. Because it was not set out and re-enacted in the revision of 1852; and, Second, because the section does not relate to pleading and practice, and hence was not continued in force by section 802 of the code of 1852. If it were not for this section, the first position would be well taken. That the legislators were impressed with the thought that something necessary might have been omitted from the code of 1852, is very patent from the above section 802. The purpose of that section, as therein declared, was not to repeal, but to continue in force, all laws and usages of the State relative to pleading and practice in civil actions and proceedings, not inconsistent with the code, and that might operate in aid thereof, or supply any omitted case.
The case, therefore, turns upon the proper interpretation and scope of that section. The first duty in the interpretation of a statute is to ascertain the meaning and intention of the Legislature, and this must be done, in the first instance, from the language used. What, then, did the Legislature intend by continuing in force the laws and usages of the State relative to “ pleading and practice ” in civil actions ? What was intended by the terms “pleading and practice” as used in the above section ? As there used, are these terms broad . enough to include, and were they intended to include, appeal bonds on appeal to this court ? It seems to us that there can not be much question as to what was intended to be embraced within these terms, because the whole act shows in what sense they were used by the law-makers. The heading of the chapter and title of the act are as follows:
“ Part Second.
“ Concerning the Civil Procedure of Courts, and their Jurisdiction in Civil Matters.
“ Chapter 1. An act to revise, simplify and abridge the rules, practice, pleadings and forms in civil cases in the courts *351of this State — to abolish distinct forms of action at law, and to provide for the administration of justice in a uniform mode of pleading and practice, without distinction between law and equity.” 2 R. S. 1852, p. 27; 2 R. S. 1876, p. 32.
In this act, thus entitled, and following the above heading, and nowhere else, we find the provisions providing for 'appeal bonds to this court, and other like bonds connected with the practice, and providing for the form and substance of such bonds, and the liability of the obligors upon such bonds. The fact that the legislators thus provided for the bonds in the practice act shows conclusively that they regarded them as relating to the practice and procedure in civil actions; in other words, regarded the laws requiring such bonds, and fixing the liability upon them, as laws relating to the practice in civil actions. In confirmation of this view is the further consideration, that section 44 of the revision of 1843 is found in the act entitled an act “ concerning * * proceedings in civil cases.” R. S. 1843, p. 622.
In the construction of section 802, supra, the courts should adhere to the meaning of the term “ practice,” given to it by the Legislature. And, as it seems to us, it is not a strain of language to say that the law requiring such bonds, and fixing the liability upon them, is a law relating to the procedure and practice in civil actions. B. is upon A.’s land. A. wishes to eject him from it. The law provides a course of practice and procedure to accomplish this end; as a part of that, is the provision that B. máy appeal to this court, and if he gives a bond he shall not be ejected until this court shall have passed upon the case. This bond is just as much a part of the practice and procedure as is a bond in an injunction, or any other proceeding requiring a bond.
It may well be said here, as was said by the English court in the case of Poyser v. Minors, L. R., 7 Q. B. Div. 329, 333, that “ ‘ Practice’ in its larger sense — the sense in which it was obviously used in that act, * * denotes the mode of proceeding by which a legal right is enforced.”
Filed March 12, 1885.Our attention is called to the case of Epstein v. Greer, 85 Ind. 372, in which the commissioner cites with approval the case of Malone v. McClain, 3 Ind. 532, in which it was held that there could be no recovery beyond the letter of the bond. In the first place, the case in 85 Ind., supra, might have been decided, as it was decided, without approving the case of Malone v. McClain, supra. What the commissioner said, therefore, in the way of approving of the doctrine of that case, may well be regarded as dictum. As shown by the citations in the principal opinion, this court has long since departed from the doctrine of the case of Malone v. McClain, supra, upon the point in support of v/hich the commissioner cited it. What was said in commendation of it, therefore, in the case of Epstein v. Greer, supra, must be and is disapproved.
After a careful review of our holding in the principal opinion, and a careful reading of appellant’s argument upon the petition for a rehearing, we are satisfied that the case was decided correctly, and that the petition for a rehearing should be overruled.
In addition to the cases cited in the principal opinion showing the scope that has been given to section 802, supra, we cite Hudelson v. Armstrong, 70 Ind. 99.
The petition for a rehearing is overruled.