?T I I -5 yron Waters, M . ,. i r\ 1 MA ■ dn B( THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW A COMMENTARY OK THE INTERPRETATION OF STATUTES, BY G. A. ENDLICH, Esq., AUTHOR OF "THE LAW OF BUILDING ASSOCIATIONS," ETO FOUNDED ON THE TREATISE OF Sir PETER BENSON MAXWELL, Late Chief Justice of the Straits Settlements. JERSEY CITY, N. J. : FKKDEKrcK D. Linn & Company. 1888. rCntered according to Act of Congress, in the year 1KK8. h\ FREDERICK D. LINN & Co . in the office of the Librarian of Congress, at Washington. PREFACE. Since its first publication in 1875, the treatise of Judge Max- well " On the Interpretation of Statutes " has deservedly taken high rank in England among the acknowledged authorities upon this branch of the law, and has made its way to judicial recogni- tion in this country. Its simplicity and practical directness in the treatment of an intricate and seemingly abstruse subject would, if there were nothing else to commend the work, distinguish it as one of pre-eminent usefulness to the profession. The volume herewith submitted is founded upon and embodies the larger portion of that treatise. My original undertaking, indeed, was merely that of an American editor of the English work. While engaged upon that duty, I found the mass of new- matter to be incorporated so great and so important to the American lawyer that its relegation to foot-notes appeared im- practicable. On the other hand, I ascertained that much in the work of the learned English jurist was inapplicable to the law T of this country ; that many essentials in the understanding and application, under our system, of the principles of statutory inter- pretation w r ere neither recognized nor alluded to in his work, because alien to the English jurisprudence; and that certain changes of arrangement might be made with advantage to the American reader. To have interwov.en with the original text this mass of new matter, often of a character entirely foreign to any- thing contemplated by the author ; to have omitted portions of his work, no doubt by him regarded as material ; to have chauged his arrangement, the divisions of his book and the titles he had given them, and still to have called it his work, would have been a wrong to him and to me. The only proper course, it seemed, was to make a new book, which should declare itself to be founded and built upon Judge Maxwell's treatise, in which full credit should be prominently given for all that is derived from it, but which should cast no apparent responsibility upon him for any changes, omissions or additions. iii 66*89. IV PREFACE. This it is that I have done, and such is the character of the present work. Two-thirds of its matter, in text and notes, are the result of my labors. I have changed the grouping together of subjects in the various chapters, and of course their titles ; and whilst, in the main, the order in which the subjects are treated has been retained, in some instances portions of the text have been transferred to other connections or incorporated with foot- notes. The whole has been divided into numbered sections, with appropriate captions, and a new index has been added. What- ever of Judge Maxwell's work I could retain I have retained, as far as possible, literally, preferring always his language to my own. The original notes to the text reproduced are given in full as they appear in the English work, with such trifling corrections as were necessary. And in order to mark and enforce the credit I owe and desire to see given to Judge Maxwell's work, I have enclosed in brackets all the new matter added by me to the origi- nal text or notes, and all interpolations or changes of phraseology (except such as substituting " legislature " for " parliament," "government" or "state" for " crown," etc., where such altera- tions seemed called for in an American book), and have retained the reference to the original notes by letters, whilst numbering the new consecutively throughout the chapter. Transpositions and omissions I could not, of course, indicate without becoming tedious. In the plan of the work I have labored to carry into the larger and more diversified field of American decisions the system that distinguishes the learned English author's admirable treatise — that of example, which, possibly more in this than in any other subject, excels mere precept. The innumerable maxims and technical rules of statutory interpretation, shrouded for the most part in a dead language, are well enough known. The difficulty is in their application. Judge Maxwell, in his work, has not cast them aside as useless ; but he has translated them into a living language, reduced them to a few easily grasped, obvious geueral principles, and elucidated their force and effect by showing the methods, limits and results of their application in decided cases. I have not, however, confined my view to American decisions, but made a selection of those also of the English courts rendered since the publication of the last edition of Judge Maxwell's work. Although, in a work of this character, manj" distinct branches of the law — e. g., Criminal Statute Law, Internat onal Law, the Conflict of Laws, the Law of Usury, Contracts, Corporations, &c. — PREFACE. V must be drawn and touched upon more or less in detail, I dis- claim for this work any pretensions to be regarded as containing exhaustive examinations of any collateral and independent topics of legal discussion. They are introduced only as incidental to and illustrative of the general subject, the interpretation of statutes. Nor, in my opinion, does this subject involve that of constitutional interpretation. The latter, therefore, has been ex- cluded, except in the last chapter, where it is entered into for the purpose and to the extent of pointing out the differences and analogies existing between the two. The text-books I have principally used and referred to are the following : Bishop, Written Laws and their Interpretation, 1882 (cited as Bish., W. L.) ; Buckalew, Constitution of Pennsylvania, 1883 (cited as Buckalew, Const, of Pa.) ; Cooley, Constitutional Limitations (5th ed.), 1883 (cited as Cooley, C L.) ; Field, Con- stitution and Jurisdiction of the Courts of the United States, 1883 (cited as Field, Fed. Cts.) ; Jarman, Wills (5th Am. ed., Randolph & Talcott), 1880 (cited as Jarm., Wills) ; Potter's Dwarris, Stat- utes and Constitutions, 1871 (cited as Potter's Dwarris) ; Sedg- wick, Interpretation and Construction of Statutory and Consti- tutional La\v (2d, Pomeroy's, ed.), 1874 (cited as Sedgw.) ; Wilberforce, Statute Law, London, 1881 (cited as Wilb., S. L., or merely Wilb). G. A. E. Beading, Pa., May 1st, 1888. CONTENTS. Table of Cases Cited or Introduced, ----- Page ix CHAPTER I. SECTION. Literal Interpretation, ------- 1-24 CHAPTER II. External Circumstances, Context and Acts in Pari Ma- teria, 25-57 CHAPTER III. Title, Marginal Notes, Punctuation, Preamble, Schedule, &c., 58-72 CHAPTER IV. Presumptions Arising prom Subject Matter, and Object op Enactments as to Language Used, - 73-112 CHAPTER V. Presumptions Arising from Scope and Specific Purpose of Act, and as to Evasion and Abuse of Power, - - 113-150 CHAPTER VI. Presumptions as to Jurisdiction, Government, Excess of Legislative Functions and Powers, Violation of In- ternational Law, Treaties and Constitution, - - 151-181 CHAPTER VII. Presumption Against Inconsistency. Repeal by Implica- tion, - 182-209 CHAPTER VIII. Presumption Against Repeal by Implication. General, Special and Penal Acts, ------- 210-244 vii ■ •• Vlll CONTENTS. CHAPTER IX. 8ECTIOH. Presumption Against Unreason. Inconvenience, Injustice and Absurdity, 245-266 CHAPTER X. Presumption Against Construction Permitting Impairing of Contracts, Advantage from own Wrong, and Re- trospective Operation-, 267-294 CHAPTER XI. Exceptional Construction to Effectuate Legislative In- tent, 295-328 CHAPTER XII. Strict Construction, 329-356 CHAPTER XIII. Usage and Contemporaneous Construction. Legislative Construction. Change of Language, &c, - 357-395 CHAPTER XIV. Associated Words, 396-416 CHAPTER XV. Implications and Intendments. Directory and Impera- tive Provisions. Impossibilities. Waiver, - - - 417-448 CHAPTER XVI. Effect of Statute upon Contracts made in Contraven- tion thereof. Public and Private Implied Remedies, 449-474 CHAPTER XVII. Repeal. Commencement. Judicial Notice, ... 475-505 CHAPTER XVIII. Analogies and Differences between the Construction of Statutes and that of Constitutions, ... 506-540 Addenda, pp. 761-765 Index, 766 TABLE OF CASES CITED OR INTRODUCED. [The reference is to pages'] Aaron v. State, 681, 682, Aaronson, Exp., Abbott v. Commonwealth, v. Goodwin, v. Middleton, '. v. Rogers, 642, v. Wood, Abbotsford, The, Abel v. Lee, Aberdare v. Hammett, Aberdeen R. Co. v. Blaikie, Abergavenny v. Brace, Abersystwith Pier Co. v. Cooper, Ablett v. Basham, Abley v. Dale, 7, Academy of Fine Arts v. Phila- delphia, Acker v. Acker, Ackley v. Westervelt, ATlaru v. Inhab. of Bristol, 13, Adams v. Ash by, v. Chaplin, v. Curtis, v. Dohrmann, v. Gay, v. Graham, v. Gt. West. R. Co., v. Turrentine, V. Wootl, Adey v. Trinity House, Aechternaeht v. Watinough, Aerated Bread Co. v. Gregg, jEtna Ins. Co. v. Harvey, " 648, v. Reading, Agricult. B'k v. Burr, Aicard v. Daly, Aicardi v. Alabama, Airy Str., In re, Ala., &c., Ins. Co. v. Boykin, Warehouse Co. v. Lewis, Albany Str., Be, 689 203 681 629 1, 96 647 458 513 437 183 653 303 124 123 605 497 279 178 447 259 396 178 552 235 350 123 5 82 2S-2 456 113 653 558 445 508 171 171 384 52 756 Albee v. May, 367 Albertson v. State, 252 Albright v. Bedford Co., 506, 507 v. Lapp, 593 v. Payne, 77 Alderson v. Maddison, 445 Aldgate v. Slight, 623 Aidridge v. Mardoff, 29 v. Williams, > 38, 41 Alexander v. Alexandria, 54 v. Commonwealth, 171 v. Miller, 541 v. Nelson, 361 v. Newman, 74 v. People, 248 v. State, 98, 223, 693, 694 v. Worthington, 35, 45, 363 Larsen, The, 388 Alexandria v. Dearmon, 279 Alford v. Burke, 189 Alina. The, 30,220 Allegheny v. Nelson, 704 v. R. R. Co., 495, 599 Co. v. Gibson, 718,720, Allen's Appeal, Allen v. Carter, v. Coates, v. Flicker, v. Garbutt, v. Ins. Co., v. Miller, v. Parish, v. R. R. Co., v. Ramsey, v. Savannah, Allentown v. Hower, Allerton v. Belden, Allhusen v. Brooking, Allison v. K. R. Co., v. Smith, Allkins v Jupe, A I my v. Harris, 721, 731, 749, 759 5,569 763 138 92, 266, 519 220 4, 1*1 13 400 244 532 157, 539 708 191 367 525 107 11, 74 216, 670. (.71 IX TABLK OF c \SKS. 195, 228, Cheshire To:;. 235, 242, Midland II. v. 126, 510, 650, 64, Aires ford v. Scott, Allsopp v. Day, Alter v. Shepherd, Alton v. Trans. Co., Wood's Case, Altrincham Union Lines Committee, Amalia, The, Ambergate R. Co. v I '' »., A unlit v. Humphrey, Amer. Emigr. Co. v. Adams Co., Fur Co. v. U.S., 114, Amherst v. Somers, Amy v. Dubuque, Ancketill v. Bay I is, Anderson v. Commonwealth, v. Lovely, v. May, v. R. R. Co., Anding v. Levy, Andover v. Gould, Andrew, Re, Andrews v. King, v. People, v. K. R Co., v. Schott, v. U.S., Angele de Sentmanat v. Soul£, Anglo I rreek St. Co., Be, Antrim, /,'< , Ann, The Brig, A una, The, Annapolis, The, v. State, Anon., Ansart v. U. S., Anstee v. Nelms, Anstey v. Edwards, Anthony v. Slate, Antony v. ( 'ardenham, App v. I 'hi veil, Apperson v. Memphis, Apple v. Apple, v. Crawford Co., Appleby v. Myers, Arceneaux v. Benoit, Archer v. James, v. Jones, An ling v. Bonner, Arina, Tee, Armitage v. Walker, v. Williamson, Armstrong v. Beaty, v. Lewis, v. Boss, Arnold v. Arnold, v. United States, 547, Arnott v. Dimsdale, Arrowsmith, Exp., 693, 700, 500, 681, 292, 435, 667, 5, 717. 8, 596 510 I 11 229 253 709 245 293 292 509 153 225 509 3 15 262 594 517 108 692 (171 61 207 271 367 186 451 21 572 701 701 503 239 682 681 IK) 37 482 515 136 189 427 173 734 627 143 471 167 43 119 215 479 593 646 615 242 701 605 148 Arrowsmith v. Hamering, 701 Arthur v. Bokenham, 152, 173 v. Dodge, 65 v. Morrison, 1 12, 113 Ash v. Abdy, 40, :jus, H2 Ashbnrnham v. Bradshaw, 368 Ashbury v. Richie, 626 Carr. Co. v. Riche, 563, 590, 641 Ashby v. White, 666, 673 Aehenden v. L & Br. It. Co., 195 Ashford v Thornton, 697 Ashley v. Harrington, 51 Assessors v. Osborne, 683 Atchison, &c, R R. Co. v. Black- shire, Atkins v. Disint'g Co., v. Pitcher, v. Sleeper, Atkinson, Re, v. Baker, v. New Castle Works ( o., v. Selh rs, Atlanta v. Gas Light Co., v. White, Attenborough v. Thompson, Aity-Gen. v. Alexander, v. Allgood, v. Bailey, v. Bank, v. Barker, v. Basingstoke, v. Bradbury, v. Bradlaugh, v. Bristol, v. Brown, V. Cambridge, V. Campbell, v. Chel s ea Water Works, Constable, Da vies, Day, Detroit, &c, Co., Donaldson, 223, 226, 227 Eau Claire, 246, 2 17 v. V. V. V. V. V. V. V. V. 704 44, 115 388 517 242 616 Water 072, 673 125 433 452 12:5 124 223, 227 112 45. 502 227 662 479 501 259, 282, 292 497 242 255 227 196 445 45 Forster, Furness, (l. E. R. R. Co., 76 312, v. Hackney B'd, v. Hallett," v. Hill, v. Horner, v. Jones, v. Joy, v. Kwok Ah Sing, 39, 159, 233, 401 v. Lamplough, 63 500 495 78, 591 344 96 226 336 500 729 TABLE OF CASES. XI .-Gen . v. Lloyd, :;i;s v. Lock wood, 10, 148, 399 317, ,464 V. Napier, 242 V. Panter, 700 V. Parker, 500 V. Plank R'd Co., 29 V. Pougett, 397 V. Riddle, 168 V. Saggers, 464 v. Sillem, 38, 41, 387, 488 v. Southampton, 211 v. Tynda.ll, 197 v. Weimer, 740 v. Westin. Chambers Assoc, 4, 69 v. Weymouth, 73 Attree v. Ha me, 197 A tt water, Exp., 8, 283, 514 Aubert's App , 383 Auckland v. VVestm. B'd, 47 Auditor v. Halbert, 227 v. Haycraft, 44 Aultmann's App., 71, 126, 248, 509, 717 Aurora, The, 702 v. United States, 678 &c, Co., v. Holthouse, 363 Austen v. Howard, 294 Austill v. Crawford, 120 Austin v. Bunyard, 337 v. Chittenden, 191 v. Foster, 484 Avanzo v. Mudie, 613 Avery v. Groton, 142, 488 v. Pixley, 543 Ayers v. Knox, 7, 48 Ayscough's Case, 223 Babeock v. Goodrich, 358, 434, 654 Bach v. Smith, 649 Bacon v. Lee, 642 Bagby v. Emerson, 615 Bagg's Case, 603 Bailey, Re, 101 v. Bailey, 216, 217 v. Bryan, 174, 216 v. Commonwealth, 4, 352 v. De Crespigny, 660 v. Harris, 651 v. Mason, 684, 685 v. R. R. Co., 247 v. Rolfe, 501, 502 v. Sweeting, 482 v. Wallace, 227 Baines v. Swainson, 160 v. Wormsley, 418 Baity v. Cranfield, 144, 378 Baker, Exp., Matter of, v. Baker, v. Berkeley, v. Compton, v. Taylor, v. Terrell, Baker's App., 88, Baldwin, Exp., v. Cooley, v. Cullen, v. Flagg, V. Newark, v. Philadelphia, Ball, Exp., v. Bullard, 279, v. Powers, Ballentine, Exp., v. Pulaski, 262, 728, v. White, Ballston Spa Bank v. Marine Bank, Balliet v. Brown, Ballin v. Feist, Baltimore v. Boyd, v. Greenmount Ceme- terv, v. McKim, v. Root, 228, v. State, 726, 731, 740, Bait., &c, R. R. Co. v. Grant, V. Sherman, v. Wilson, v. Woodruff, Bambaugh v. Bambaugh, Bancroft v. Mitchell, Bane v. Wick, Banger's Appeal, Bank v. Collector, v. Edwards, for Savings v. Collector, 63, of Alexandria v. Dyer, Augusta v. Earle, Commerce's Appeal, 445, England v. Anderson, Louisiana v. Farrar, Middlebury v. R. R. Co., Mobile v. Meagher, Pa. v. Commonwealth, 43 U. S. v. Dand ridge, 557, v. Donnally, Washington v. Arthur, Banks, Exp., 127, 429, Bansemer v. Mace, 427, Bansbor v. Mansel, Barber, Re Cont'd El'n of, 275, v. Gamson, v. Reynolds, 420, 320 451 173 534 623 614 167 483 120 :;i'.i 371 170 713 203 390 360 419 750 566 266 102 694 126 134 474 335 7 13, 7 15 683 707 588 597 381 102 508 248 680 191 691 106 557 625 500 51 606 515 ,88, 495 624 2 15 192 430 430 692 282, 294 425 162 XII TABI.K OF CASES. Barber v. Tilson, 148 v. Waite, 96 Bai bier v. • lonnolly, 42 Barcroft v. Roberts, 549 Barden v. ('rocker, 669 Bargis v. State, 213 Barker v. Beeber, 477 v. Bell, 270, 271 v. Cassidy, 99 v. Esty, " 39 Harlow v. Teal, 513 v. U. S., 183 Barnard v. Backhaus, 194, 656 Barnawell v. Threadgill, 212 Barnes v. Ackroyd, 141 v. Buck, 129, 153 v. Jones, 89 v. Mobile, 363 Barnet v. Sch. Dir's, 588 Barnett v. Powell, 100 Barrack v. McCulloch, 148 Barrett v. Holmes, 509 Barrow, Exp., 156 v. Wadkin, 78 Harry v. Randolph, 593 Barstow v. Smith, 7 Bartee v. R. R. Ck)., 116 Bartholomew v. Freeman, 562 Bartlett v. Bartlett, 170 v. Donoghue, 615 v. Gibbs, 92 v. King, 270 v. Kirkwood, 543 v. Morris, 7, 80, 709 v. Smith, 192,194 v. Vinor, 641, 642 Bartolett v. Achey, 453 Barton v. Kavanaugh, 630 v. Morris, 130 v. Pigott, 206, 416, 643 v. Port Jackson Co., 653 v. R., 182 Kegis v. Liverpool, 369 Bart ruff v. Remey, 363, 373 Barwick v. London S. Bank, 141 Hiss v. Iivitl, 119 Basset! v. Carleton, 217 v. U. S, 396, 701 Bates v. Avon, 227 v. Winstanley, 269 Bath u ret v. Course, 401 Battersby v. Kirk, 27 Battishill v. Reed, 550 Battle v. Shivers, 89, 90, 91 Battye v. ( iresley, 606 Bauer v. Augeny, 215, 736 Baumann v. James, 37 Baxendale v. G. K. R. Co., 347 v. Hart, 409 Baxter v. State, 227 v. Tripp, 9 Bay v. Ga{ 362,398 Bayard v. Smith, 457 Bay City, &c., R. R. Co. v. Austin, 457, 68;?, 6S6 Bayley v. Hazard, 616 v. Taber, 644 Baylies v. Fettyplace, 658 Beal, Exp , 469 v. Ford, 122 Beall v. Harwood, 4()1 v. Kiah, 169 Hals v. Hale, 261, 281 Beams, Matter of, 389 Bear's Adm'r v. Bear, 36, 61, 99, 238 Beard v. Rowan, 78, 81, 148 Beardstown v. Virginia, 712, 714, 717, 720 Beaston v. Bank, 116 Beatty v. People, 690 Beaufort (Duke) v. Smith, 524 Beck v. Church, 333 Becke v. Smith, 4, 399, 402 Becker's Appeal, 363 Becket v. Building Association, 615 Beckford v. Wade, 155 Beckman v. Drake, 330 v. Skaggs, 713, 737, 739, 741 v. Stanley, 615 Beckwith v. Douglas, 547 Beckworth v. Talbot, 182 Beddow v. Beddow, 153 Bedell v. Janney, 176 Bedford v. Hood, 668 v. Shilling, 362, 367 Beds v. St. Paul, 226 Beecher v. Rolling Mill Co., 634, 654 Beeston v. Beeston, 647 Belasco v. Hannant, 80 Belfast v. Folger, 97 Bell v. Bilton, 381 v. Crane, 423 v. Morrison, 509 v. New York, 400 v, Quin, 644 v. Taylor, 621 Belleville *R. R. Co. v.Gregory, 44, 363 Bellew v. Wonford, 13 Beltzhoover v. Gallings, 216, 612, 616 Belvidere v. R. R. Co., 688 Bemis v. Becker, 650 v. Leonard, 548 B< ii Held v. Solomon, 446 Benjamin v. Storr, 674 Bennet v. Hargus, 684 Bennett v. Art Union, 542 v. AtUins, 638 v. Birmingham, 490 v. Bittle, 333 v. Bruntitt, 66 v. Daniel, 529 v. Edwards, 148 TABLE OF CASES. XIU 362, 609, 612, 5, Bennett v. Hollman, v. MoWhorter, v. Mattingly, v. Ward, v. Watson, v. Woolfolk, Bensley v. Bignold, v. Ellis, v. Homier, Bent v. Hubbardston, v. Roberts, Benthain v. Hoyle, Bent ley v. Rotheram, Benton v. Wick wire, Beridon v. Barbin, Bergey's A pp., Berkeley Peerage, Berley v. Rampacber, Berliner v. Waterloo, Bnrnier v. Becker, Berry v. Cberryholm, v. Clary, 35, 45, 387 Berwick v. Andrews, Bessey v. Windhatn, Best, Exp., v. Gholson, v. Pembroke, Bestor v. Powell, Beta, Tbe, Betham v. Gregg, Bethlebem, &c.", Co. v. Yoder, 180, Bettis v. Taylor, Bevens v. Baxter, Beveridge v. Hewitt, Biddell v. Leader, Biddis v. James, Biddulpb v. St. George's Vestry, Bidwell v. Whittaker, Biffin v. York, Big Black Creek, &c, Co. v. Com- monwealth, 33, 36, 196, 400, 401, Bigelow v. R. R. Co., v. Stearns, v. Wilson, Biggs v. Mitchell, Billings, Re, v. Harvey, v. Prince, Billingslea v. Baldwin, Billingsley v. State, Billington v. Wagoner, Bingham v. Athna, v. Miller, v. Superv's of Winona, Bingbamton Bridge Case, 485, Binney v. (.'anal Co., Binns v. Hey, Bird v. Adcock, 312, Birkenhead Docks v. Laird, Birkett v. Chatter ton, Birley v. Chorlton, 173 497 634 221 156 692 64-1 391 191 515 124 491 4,82 7 303 17S 350 367 703 395 293 390 439 359 637 615 97 408 406 361 217 451 705 194 656 644 203 7 8 548, 54, 71, 248, 409 247 213 549 564 362 265 606 282 •jr.! 191 140 743 68 709 400 ;;>s 696 313 641 211 Birmingham v. Shaw, 326 Bertwhistle v. Vardill, 76 Bishops' Case, 678 Bishop, Exp., 2K! v. Barton, 89, 234 v. Bishop. 763 v. Schneider, 53 I Bissel v. Lamed, 67 I Bitt v. Beeston, 562 Bitting v. Commonwealth, 712 Black v. Canal Co., 509, 704 v. Ilalstead, 405 v. Scott, 58 v. Tricker, 54 Blackburn v. Walpole, 272, 537 Blackmail v. Wheaton, 173 Black well's Case, 418 v. England, 123 Blackwood v. Regina, 52 Bladen v. Philadelphia, 609 Blades v. Lawrence, 53 Blaiberg, Exp., 67 Plain v. Bailev, 281, 282, 292, 300 Blaisdell v. Winthrop, 217 Blake v. Attersoll, 566 v. Brackett, 411 v. Midland R., 74 v. Nat. B'k, 43 v. R. R. Co., 427 v. Sherman. 477, 617 Blakemore v. Dolan, 265 v. Glamorganshire Ca- nal Co., 494 Blanchard v. Sprague, 50, 437 Blanck v. Pauseh, 614 Blankley v. Winstanley, 500 Bleatenberger v. Holman, 194 Bledsoe v. Doe, 227 v. Thompson, 189 Bleecker v. Ballou, 134 Blemer v. People, 412 Blitbman, Ee, 241 Bloodgood v. Gracey, 509, 513, 517, 518 Bloom v. Burdich, 621 Bloomfield, &<•., Co. v. Calkins, 730 Bloxome v. Williams, 359 Blue v. McDuffie, 81 Blundell v. Gladstone, 37 Blunt v. Heslop, 546 Bly v. Bank, 191, 652, 655 Blyth v. Birmingh. Water Works Co., 597 B ias v. Xngle, 593 Boast v. Firth, 627 Boidero v. Jackson, 193 Bole v. Horton, 350 Bolina, The, 456 Bolland, Exp., 28 Bollin v. Shriner, 4 13 Bolton v. Bolton, 63b" XIV TABLE OF C \>i:-. Bolton v. King, Booar v. Mitchell, Bond v. A.ppleton, v. Bond, v. Bunting, 99, v. Hopkins, v. Jay, v. Munro, v. Rosling, v. Si. (I corge's, Bones v. Booth, 459, I: mham'sCase, 152,246, B mnewell v. Jenkins, Bonorai v. Backhouse, lie v. I > i v is, Boody v. Watson, Booknighl v. Epting, B i v. Bowers, v. I toward, 343, v. Juliet, Boi roville v. Ormrod, B oih v. ( 'live, v. [bbotson, v. State, I'.'" throyd, Re, 's App., 54, Borlin v. Highberger, Bosanquel v. Woodford, Bosler v. Rheem, Bosley v. Da vies, 337, v. Mattingley, Bostock v. Staffordshire R. Co., Boston v. Shaw, Min., Ac, Co., Be, 75, &c, R. R. Co., Exp., ( 'o., v. Boston, v. ( lardner, Boucicault v. Chatterton, Bounty .Wis, Re, 299, Bourgignon B. A. v. Coua'th, 57, 497, Bo\ ard v. Kettering, Bowden v. ( 1-ray, Bowen v. De Lattre, v. Lease, 251, 259, v. Striker, Bowers v. Sonoma Co., Bowlby v. Bell, Bowman v. I'.lyth, v. Kistler, Bows v. Fen wick, 137, Bowyer v. Bam p ton, Boyce v. Higgins, Boy dell v. Ornmmond, 445, 1'iover v. Bullard, Boyer's Road, Boy field v. Porter, Boyle v. Arlidge, v. Horner, Bracey's Case, Bracken v. Smith, 143 626 510 237 169 445 234 363 53(1 122 511 449 182 13 :;■** 628 370 508 137 254 349 103 500 198 435 271 25 62 I 638 528 7,8 492 216 756 225 429 144 96 305 259, 555 592 370 589 280 367 429 562 609 136 578 358 329 482 153 618 215 509 60 454 272 •i:;m 42 606 573 552 310 568 252, 259 757 701 Brackel v. Boyt, 644 Bradbury v. 1 Iotten, 330 v. Wagenhorst, 7, 9, 411 Bradford v. Barclay, 375 v. Jones, 74 Bradlaugh, Exp., 214 1 had ley v. Bay lis, 125 v. ( rreenwich B'd, 27 v. Johnson, 178 v. People, ISO, 349 v. Southampton B'd, 218 Bradshaw v. L. & Y. R. Co., v. ( hnaha, Bradstreet v. B'k, Brady Sir., Re, Brainard v. Norton, Bramston v. < lolchester, Bra m well v. Penneck, Branagan v. Dulaney, Branch v. Haas, Branch B'k v. Murphy, Brand v. Hammersmith Ry. Co., 90, 91, 350 Brandling v. Barrington, Braneth v. Havering, Branham v. Lange, v.-Long, Branson v. \\ i it li, Brantley v. Jo-rdan. Branton v. Grirlets, Bratton v. ( ruy, Breitenbach v. Bush, Breitung v. Lindauer, Brenan's < !ase, Brett v. Beals. v. Brett, I he!/. V. New York, Brewer v. Blougher, Brewster v. Brewster, v. Kitchell, Brick Pres. Ch. v. New York, Brickett v. Haverhill Acpied., Bridge v. Branch, 446 155 262 289 524, 525 629 195 375 486 264, 265, 486 623 524 74,80 703, 705, 70S 12, 93,95, 115 390 658, 659 659 433 213, 538 v. Hubbard, 191 Co. v. Hoboken, &c., Co., 108, 484, 495 Bridgeport v. K. R. Co., 591 Bridger v. Richardson, 564 Bridges v. Fisher, 17 Brien v. Williamson, 721 Brigden v. Heighes, 3m7 Briggs v. Easterly, 347, 357 v. Hubbard, 363 Brightman v. Kimer, 238 Brink ley v. Swicegood, 678 Brinson v. State, 23 Brinsfield v. Carter, 50, 227 British Farmers', &c, Co., Re, 7 Britt v. Robinson, 463, 469 Broad v. Broad, 101 Broad St. Hotel Co. v. Weaver, 703 TABLE OF CASES. XV Broadbent v. Imper. Gas Co., 88, 91 Broaddus v. Broaddus, 272, 537 Broad head v. Holdsworth, 465 Broadweli v. Conger, 453 Brocket v. R. R. ( !o., 4, 5, 6, 12, 55(5 Brockway v. Rowley, 714 Brodie v. Chandos, 197 Bromley v. Goodrich, 361 v. Holden, 666 Bronson v. Wiman, 707 Brook v. Brook, 234, 237 Brookbank v. Whitehaven R. Co., 422 Brooke v. Shadgate, 163 Brooker v. Ward, 647 v. Wood, 139 Brooklyn L. Ins. Co. v. Bledsoe, 648, 653 Brooks v. Avery, v. Bockett, v. Bos well, v. Cock, v. Commissioners, Brotherton v. Brotherton, Broughton v. Manchester Water 191 388 593 613 29, 44, 282, 298, 299 691 Works, Brower v. Bowers, Brown, Exp., Be, Brown's Appeal, Case, Brown v. Barry, v. Bennett, v. Berry, v. Brown, v. Buzan, v. Commissioners, v. Conseno, v. Diliahunty, v. Duncan, v. Fifield, v. G. W. R. Co., 590 144, 378 489 531 731, 734 467 174, 400, 512, 677, 678, 680 615 51 362 246, 547, 558 252 279 658, 659 651 734 96, 251, 275, 599 436 717 491, 658 13 v. Hamlett, v. Hitchcock, v. Holyhead B'd, v. Howard, v. Hunn, 198 v. Lester, 627 v. London (Mayor), 660 v. London, &c, R. Co., 124 v. McLachlan, 531 v. Miller, 292 v. Ry. Co., 616 v. Shaw, 630 v. State, 503 v. U. S., 505 v. Wilcox, 160, 863 v. Worcester, 756 v. Wright, 401 Browning, Exp., v. Cover, Bruce, In re, v. Schuyler, 54, 292, Brumfitt v. Bremner, v. Roberts, 163, Brun v. David, Bruni, Re, _ 214, 223, Brunner's Appeal, Brunskill v. Watson, Brunton v. Griffiths, Brush v. Bogardus, Bruyeres v. Halcomb, Bryan v. Child, 86, 88, v. Dennis, Bryant, Be, v. Livermore, v. Merrill, Buccleuch v. Metr. B'd, Buchanan v. Hazzard, v. Kinning, v. Smith, Bucher v. Commonwealth, 451, Buck v. Spofford, Buckalew v. Ackerman, Buckhurst Peerage, Buckingham v. Moss, v. Steubenville, Buckle v. Wrighlson, Buckley v. L'owrie, Buckner v. Street, Buckwalter v. U. S., Budd v. Ry. Co., Buell v. Warner, Buffalo City Cemetery v. Buffalo, Building Association v. Kribs, V.Thompson, Bulkley v. Eckert, 229, Bull v. Chapman, v. Harragan, v. Loveland, Bullard v. Raynard, v. Smith, Bullock v. Horn, Bult v. Price, Bunny, Exp., Burch v. Newbury, Burden v. Stein, Burdenell v. Vaux, Burdick v. Connell, Burgess' Case, Burgeti's Lessee, Bin gett v. Burgett, Burke v. Jeffries, 281, 288, 306, v. Monroe, 44 Burling v. Harley, Burn v. Carvalho, Burnby v. Bollett, Burnett v. Thompson, Burnham v. Acton, 656 379 242 863 620 628 544 236 597 484 520 119 538 529 54 106 51 373 504 202 605 175 571, 637 537 318 657 390 281 286 488 740 341 496 707 497 664 545 335 642 650 6S 191 194 487 663 550 436 27 543 629 359 142 74 712 ,48 403 700 183 167 705 XVi TABLE OF CASES. Burnham v. Onderdonk, v. Stevens, Burns v. Bryan, v. Nowell, Burnside v. Whitney, Burrows v. Bashford, Burroughs v. Hunt, Burwell v. Tullis, Bush v. Republic, Bussing v. Bushnell, J '.ust rus v. White, Butcher v. Henderson, Bute v. Grindall, Butler's Appeal, Butler v. Palmer, v. Bicker, v. Robinson, v. Russel, Co v. Leibold, Bute v. R. B. Co., Bultertield v. Okie, Butz v. Muscatine, Buxton v. N. E. B. Co., v. Bust, Byrne v. Stewart, v. Walker, Byerley v. Prevost, Byrd v. State, 558 531 342 369 143, 17 1 613 189 265, 385, 398 318, 323 174 418, 511 684, 693 226 574 684, 685 453 707, 70S 678 21 257 170 509 (172 483 259 161 195 510, 519 Cable v. Coates, 547 Cabot, &c, Co. v. Cbapiu, 357 Cadbury v. Duval, 152 Cadys v. Goodnow, 191 Cahall v. Cit. Mut. B. A., 271 Cain v. Genion, 191 v. Goda, 734 v. Ligon, 202 v. State, _ 59 Cairo v. Bross, 309 Calcutta Jute Co. v. Nicholson, 242 Caid. & II. Nav. Co. v. Pilling, 492 Calder v. Bull, 320,367,381 Calderwood v. Calderwood, 104 Caldow v. Pixell, 613, 623 Caldwell v. Si 373, 3S2, 389 Caledon. R. Co. v. N. Brit. R. Co., 33 I ins v. State, 681 Calloway v. Crossart, 232 Camden v. Allen, 216, 67 1 &c , R. B. Co. v. Brig-s, 495 Cambridge Union v. Parr, 62 Cameron v. Cameron, 1 1 v. Smith, 279 v. Supi rv's, 217 Cammeyer v. United, &c, Churches, 244 Camp v. Rogers, 127, 247 v. Ingersoll, 218 ( !ampan v. Fairbanks, Campbell's Case, ( iampbell, Exp., v. Allison, v. Case, 272, V. ( ll'iiulllS, v. Im Thurn, v. Johnston, v. Maund, v. Quinlin, v. State, v. Strangeways, v. Thompson, ( lampfield v. Lang, Canady v. < reorge, Canal Co. v. B. B. Co., 45, 54, 81, 401, v. Schroeder, Canastata, &c, Co. v. Parkhill, Caniff v. New York, Cannon v. Mathes, v. Vaughan, Canterbury's (Abp.) Case, Cant well v. Owens, Cape Girardeau Co. Ct. v. Hill, v. Biley, Caperton v. Martin, Care v. Keller, Carey v. Giles, v. Whitney, 227, Carhart, Re, Carlisle v. State, 681, v. Stitler, v. United States, Carl's App , Carlton v. Felder, v. Whitcber, Carmichael v. Bodtish, Caroline, The, Carothers v. Phila. Co., Carpenter's App, Case, ( larpenter v. Browning, v. People, 449, 712, 714, v. Shimer, Carpue v. London, &c, R. Co., Carr v. Royal Exch. Ass. Co., Carron Iron Co. v. Maclaren, Carrow v. Bridge Co., Carruthers, Exp., Carson v. Love, v. Min'g Co., Carter's App., Carter v. Burt, v. Haw ley, v. Murcot, v. Peck, V. State, ( arver v. Smith, 58, 213 386 514 616 537 612 158 191 1 55 517 481 544 98 131 699 251, 703 4 291 622 756 54 579 726 61, 272 755 390 370 459 228 549 682 486 233 110 509 644 191 352 764 533 594 374 715, 716 375 403 80 124 707 268 548 664 161 316 318 182 565 130 282 TABLE OF CASES. XVII Cary v. Marston, llfi Cascades R. R. Co. v. Sohns, 307 Case v. Dunmore, 634 v. Mobile, 706 v. Storey, 561 v. Wildridge, (i Casey v. Harned, 239, 259, 281, 289 ( lasher v. Holmes, 579 Cash man v. Henry, ITS Castalli v. Groom, 419, 426 Castle v. Burdett, 547 Castner v. Sliker, 761 v. Walrod, 279 Caswell v. Worth, 293 Cate v. Stale, 292, 314 Cates v. Knight, 214, 528 Cathcart v. Hardy, 552 v. Robinson, 509, 517, 519 Catlin v. Gnnter, 446 v. Hull, 45, 95 v. Smith, 200,719 Catling v. King, 483 Cattaraugus Co. v. Willey, 280 Catterlin v. Frankfort, 547 Caughey v. Pittsburgh, 215 Caverow v. Ins. Co., 100 Cearfoss v. State, 8, 12, 93 Centr. B'k v. Empire Stone Co., 692 v. Kendrick, 294, 623 Centr. R. R. Co. v. Russell, 637 v. Swint, 244 Cesena Sulph. Co. v. Nicholson, 124, 242 Chad wick v. Collins, 130 Chaffer's Aj.p., 29, 465, 475 Chafin v. B'k, 116 Chahoon v. State, 714 Chamberlain v. Chamberlain, 280, 281 v. Dempsey, 191 v. Evansville, 694 v. King, 404 v. Spargur, 761 v. West. Transp. Co., 175 Chamberlaine v. Chester R. Co., 668, 670, 673, Chambers v. (-'arson, 531 v. Green, 213 v. Manch., &c, R. Co., 495 v. State, Champion v. Plummer, Chance v. Adams, Chandler v. Lee, v. .Main, v. Northrop, Chapin v. Dake, v. Persse, &c, Chapman v. Chapman, v. Forsyth, v. Miller, v. Milvain, 436 483 73 59, 351 235 448, 513 358 Works, 175, 454, 487 571 120 108, 136, 202 276 Chapman v. State, 219, 220, 353, v. Robinson, ( lhappel v. Purday, Charles v. Blackwell, Charless v. Lamberson, 366, 486, Charlewood v. Bedford, Charlotta, The, Charlton v. Hay, ( harrington v. Meatheringham, Chartered Merc. B'k v. Nether- lands, &c, St. Nav. Co., Chartered Merc. B'k v. Wilson, Chase v. Dwi.ial, v. Sieatnb. Co., Chatterton v. Cave, Chelsea Vestry v. King, Waterworks v. Bowley, Cherry's Est., In re, Cherry Overs' rs v. Marion Over- s' rs, Cherokee Tobacco, The, Lodge v. White, Nat'n v. Georgia, 725, Chesapeake, &c , Uv. Co. v. Hoard, R. R.Co. v. Mil- ler, 718, Chestnut v. Shane, 501, Chew Heong v. U. S., 281, Cheezem v. State, Chicago v. Iron Works, &c.,Ry. Co. v.Allfree, v.Dunn, 100, v. Knox Coll., V. Pounds, v.Smith, Chick v. Smith, Chilcoat's A pp., Child v. Hearn, Childers v. Johnson, Childs v. Shower, v. State, Chilton v. L. & C, R. Co., Chinnery v. Evans, Chollar v. Min'gCo., Chorlton v. Lings, Chouteau v. Allen, Christopherson v. Lotinga, 18, Christ's Hosp'l v. Hawes, Christy, Exp., Church v. Crocker, v. Hubbard, v. Stadler, Churchill v. Bank, v. Crease, 288, 3S5, Churchman v. Martin, Cicero, &c, Drain. Co. v. Craig- head, Cigala's Settlem't, Be, 410 328 383 139 693, 700 183 185 668 681 245 563 332 116 330 461 571 23 616 243 378 751 298, 3U8 719 505 362 69 1 551 228 142 217 246 217 544 66 581 51 263 557 492 200 488 156 653 145, 437 155 120 62 243 256 543 6S1 168 707 242 XVI u T M'.l.K or I \-is. Cincinnati v. Evans, 229 v. First Presb. Ch'ch, 229 B ink v. Burkhardt, 5 15 I -11. v. Ohio, 497 v. Yeatman, 5 II Gas, &c., Co. v. Avon- dale, 116 Citizen's Gas Light Co. v. State, 395 Mutual Li., &c, Ass' n v. Webster, 492 Clark v. Sainsburg, 291, 292 CLagdon v. Green, 76 Clan Gordon, 288 Clap] i v. Burlington, 1 24 v. I [anson, 192 ( Hare v. State, 44 Clarence K. Co. v. G. N., &c., R. Co., 590 Clark's Suctfn, 344 Clark v. Bynum, 81 v. Denton, 658 v. Dotter, 356, 504 v. Gaskartb, 570 v. In*. < '".. 642 v. Janesville, 602, 704, 7 n6 v. Lord, 693 v. McCann, 279 v. Martin, 98 v. Middleton, 648 v. R. K. Co., 517 v. Robinson, 610 v.Snyder, ' 62S, 631 v. Utica, 96 v. Wallond, 513 Clarke v. Bradlaugh, 541 v. Brooktield, 591 v. Bury St. Edmunds, 124 v. Crowder, 410 V. Gant, 619 v. Grant, 266 v. liilibons, 279 v. McAnulty, 635 v. Powell, * 60 v. Roche, 337 v. Rochester, 256, 702 Clarion Bank v. Grnber, 707 Clawges v. Clawges, 215 Clawson v. Hutchinson, 371 Clay v. Ray, 647 Co. v. S.c'y, 281 Claydon v. Green, 78 Clays v. Sudgrave, 503 Clayton's Case, 544 Clayton v. Drake, 109 Cleaver v. Sheets, 160 Cleaves v. Jordan, 52 Clemenston v. Mason, 47 Cleveland v. State Bank, 579, 597 &c, R. R. Co. v. Erie, 496 v. Penn- sylvania, 235 Cleveland, Ac., R R.Co. v. Speer, 225 I ■ ! . i ... v. Metro- politan Fire < lom're, ■"• :; I Clifford v. Watts, 627 Clift v. Schwabe, ( llinton Bridge, ;;> 2 Clinton v. Phillips, 616 Clohessy v. Roedelheim, : '. ; l < ilothier v. Webster, clow v. Harper, 50 I clours v. Staffordshire Potteries, 195 Clyde Nav. Trustees v. Laird, Coal heavers' 1 lase, -- Coales v. Campbell, 757 Coats v. Hill, 275 v. Holbrook, 211 Coatsworth v. Barr, 104 Cobb v. M. W. R. Co., 481 ( lobham v. Dalton, 291 ( loburn v. Odell, 644 Cochran's list., Re, :;77 Cochran v. 1 >OUglaSS, 364, 365 v. Young, 23 ( lockerell v. Dickens, 241 Cocking v. Ward, -145 Codneld Grammar Sch., In re, 1 55 Coe v. Lawrence, 10, 165 v. Wise, 186 Collin v. Rich, 7, ('oilman v. Davaney, 616 1 .-ins v. Bennett, ( !oghill v. State, 321 Cohen v. Barrett, 74 Cohn v. Neeves, 180, 457 Colburn v. Swett, 661 Colchester v. Brooke, 674 v. Kewney, 101 226 Cole v. Bansemer, 191 v. Coulton, 317 v. Green, 626 v. Groves, ■i'u V. Hayes, 326 v. Miltnine, 194 v. People, 518 v. R. R. Co., 139 , 333 v. Savage, 19L v. White, 223 Coleman v. Birmingham, 155 v. Davidson Acad 'y, 62 v. Dobbins, 44 v. Hart, 474 v. Peshtigo Co., 231 v. Thurmond, 229 Coles v. N. W. B'k, 160 Collier v. Baptist Soc'y, 704 v. M. L. Com'rs, 598 v. State, 389 v. Worth, 114 ,464 Collins v. Blantern, 193 v. Carman, 7, 8 v. (} wynne, 656 TABLE OF CASES. XIX Collins v. Kose, 550 v. Smith, 678 Collinson v. Newcastle R. Co., 666 Col I urn v. Pettigrew, 615 Colonial B'k v. Willan, 214 Colt v. Ives, 617 Columb. Tnrnp. R'd v. Haywood, 547 Columbus Ins. Co. v. Walsh, 648 Colvill v. Wood, 69 Colvin v. Buckle, 13 Col well v. Mays Land'g, &c., Co., 246, 248 Combe v. Pitt, 544 Combs' Appeal, 28, 484 Comfort v. Leland, 411 Comins v. Turn. Falls Co., 318 Comly v. Hillegass, 645 Commercial Bank v. Buckner, 120 v. Chambers, 252, 259, 282, 679 v. Foster, 401 v. Nolan, 116 Commins v. Scott, 482 Commissioners v. Chase, 623 v. Gaines, 612 v. Potts, 259 v. State, 525 of Excise v. Burtis, 71 Commonwealth v. Alger, 29, 44 v. B. & A. R. R. Co., 592 v. Baldwin, 227 v.Balph, 212,215,718, 736 v. Bank, 31 v. Barber, 585 v. Beatty, 6S3 v. Bennett, 246 v. Betts, 134, 214 v. Betz, 16 v. Bowles, 481 v. Bryan, 107 v. Buckingham, 187 v. Butler, 247, 248, 744, 748, 749 v. Callen, 749 v. Cambridge, 44 v. Canal Co., 336, 497 v. Chambre, 543 v. Churchill, 12, 678 V.Clark, 422, 711,714, 721, 722, 741, 755 v. Cluley. 672 V. Coleman's Ad- ministrator, 242 V. Commiss'rs, 267 V. Conyngham, 44, 49, 591 V. Cooke, 342, 454, 455, 586 v. Cooley, *271, 274 Commonwealth v. Co. Commr's, 704 v. Cromley, 271 v.Davis, 170,471 v. Dean, 125 v. Downes, 734, 753 v. Duane, 44, 681, 682 v. Duffy. 877, 382 v. Erie By. Co., 302 v. 14 1 togs, 179 v. Fraim, 401 v. Gardner, .'J17 v. Garrigues, 230, 232, 612 v. Getchell, 377, 678 v. Gedikoh, 20 v. Giltinan, 113,481 v. Golding, 51 v. Green, 234 v. Griffin, . 56, 414 v. Haas, 585 v. Haines, 155 v. Hall, 387 v. Hartman, 752, 754 v. Hartnett, 513,517, 518 v. Hartranft, 723, 750 v. Harris, 196, 234, 412 v. Hauck, 526 v. Hoover, 698 v. Heffner, 196 v. Howe, 132, 463 v. Hutchinson, 227 v. Intox. Liquors, 557 v. Jackson, 433 v. Johnson, 227 v. Judges, 301 v. Kelliher, 270, 320, 321 v. Keniston, 453, 456 v. Kimball, 23,63,318, 681, 682 v. Knapp, 174 v. Laws, 25 v. Leech, 98, 679, 744 v. Leftwich, 682 v. Leib, T-J'2 v. Lentz, 329 v. Loring, 453, 466, 467 v. Lovett, 69S v. McCarter, 672 v. McDonough, 681 v. Marshall, 80, 82, 274, 395, 412, 427, 437, 6S1, 682 v. Martin, 453, 456 v. Mason, 274, 281 v. Maxwell, 547 v. Meredith, 135 v. Messenger, 534 XX TABLE OF CASES. Commonwealth v. Miller, 508 v. Mitchell, 334 v. Mohn, 699 v. Montrose, 374 v. Mott, 377, 678 v. Nancrede, 172 v. Nav. Co., Ml v. Norton, 286 v. O'Connell, 213 v. Pointer, 288 v. Pass. Ry. Co., 196 v. Pattison, 72:'>, 724 v. Patton, 735 v. Posey, 137 v. Potts, 45, 64 V. Quinter, L54 v. K. R. Co. (3 Cash.), 232 V. R. R. Co. (27 Pa. St.), 114,224, 225, 49d v. R. R. Co. (53 Pa.), 259 v. R. R. Co. (104 Pa.), 515 v. R. R. Co. (2 Pears.), 497 v. Ry. Co. (98 Pa.), 2S2 V. Rainey, 531 v. Reiter, 661 v. Robbins, 667, 675 v. Shade, 22 v. Shopp, 8, 29, 77, 152, 683 v. Slifer, 49, 74, 75 V.Smith, 212 v. Snyder, 100 v. Springfield, 706 v. Stand. Oil Co., 235, 456, 457, 479, 683, 688 v. Sylvester, 61, 472 v. We-iher, 191 v. Wells, 132,463,469 v. Welsh, 682 v. Woelper, 24") v. Worcester, 149 Condon v. Barr, 178 v. Walker, 644 Conger v. Barker, 531 Conklin v. Conway, 189 v. Marslialltown, 551 Conkling v. Underbill, 192 Conley v. Calhoun Co., 298, 308, 702 v. Sims, 648 Conn., &c, Ins. Co. v. Albert, 76 Conner v. Exp. Co., 281, 282 Connors v. iron Co., 275 Conoland v. Ley land, 373 Conover v. Hobart, 191 Conro v. Iron Co., 606 Conserv. Thames v. Hall, 298 Constanline v. Constant ine, 251 Constitution, The, 240 ( '.nit. [mpr. ' '<>. v. Phelps, 745 ( lontested El'n Dauphin Co., 2U0 ( lonverse v. Burrows, 143 v. United States, 60 Conwell v. Pumphrey, 191 Conyngham Sch. Dist. v. Cclum- bia, 229 Cook v. Com' is, 352 v. Fed. Life Ass'n, 721 v. Hamilton Co., 591 v. Loveland, 606 v. Moore, 5 17 v. Ward, 605 Cooke v. Lindsay, 196 I i ley v. Barcroft, 195 Cool id ge v. Williams, 336 ( toomber v. Perks, 7 1 ibs v. Emery, 629 Coon v. Rigden, 484 Cooper v. Galbraith, 222* v. Elabbuck, 15 v. Shaver, 50, 1 I i v. Simmons, 185 v. Or. S. & L. Ass'n, 729, 7 50 V. Wandsworth R'd, 603 v. Whitiingham, 662 v. Wolley, 347 Coosa River St. Co. v. Barclay, 389 Cope v. Doherty, 52, 234, 243, 244, 514 v. Rowlands, 649, 651 v. Thames, &c, Co., 614 Copeland, Exp , 62. 530 Copeman v. Gallant, 83, 86 Copland v. Davis, 82 v. Powell, 579 Corbet's Case, 438 Corbet v. Haigh, 337 Corbett v. Bradley, 608, 612 v. Nutt, 144 Cordell v. Stale, 693 Core v. James. 47, 140 Cork, &c, R. Co., Be, 642 v. Goode, 567 Cor ley v. Berry, 189 Corn Exch. v. Babcock, 175 Cornell v. Hay, 191 v. Moiilton, 547 Cornhill v. Hudson, 385, 536 Cornish v. Hocking, 387 Cornwall v. Todd, 479 M. Co. v. Bennett, 615 Cornwallis, lie Earl, 372 Cortis v. Kent Waterworks, 147, 269 Corton v. Ball, 104 Corwin v. Comptr. Gen., 752 v. R. R. Co., 295 TABLE OF CASES. XXI Costa Kica v. Erlanger, 387 Costigin v. Bond, 732 Costin v. Washington, 362, 344 Coitun v r . James, 562 Planter, The, 702 Cota v. Ross, 513, 515 Couch v. Steel. 662, 667, 669, 670, 672, 675 Coulbert v. Troke, 553 Cornice v. Persons Unknown, 97 County Auditors, Be Report of, 204, 207 County Seat of Linn Co., 67 Courtauld v. Legh, 540 Conrteen's Case, 119 Cover v. Black, 99 Coverdale v. Charlton, 164, 519 Covington v. Easl St. Louis, 298, 308 v. McNiekle, 45, 48, 82 &C, Co. v. Shepherd, 222 Drawbr. Co. v. Shepherd, 7 07 Cowley v. Byas, 276 Cowell v. Chambers, 524 Cowen, Exp., 203 Coxe v. Martin, 97 Cox's Trusts, Be, 572 Coxhead v. Mullis, 11 Coxton v. Dolan, 533, 583, 584 Coy v. Coy, 332 Cracknel 1 v. Thelford, 597 Craig v. Kline, 604, 713 v. People, 101 Crake v. Powell, 418 Cramer v. Hanaford, 178 v. Lepper, 191 Crandall v. Bryan, 99 Crane v. Powell, 482 v. Reeder, 28S, 289 Cra ps v . B ro w a, 71 8 Crawford v. Childress, 212 v. Spooner, 7 Co. v. Meadville, 149 v. Nash, 714 Crawford ville, &c, Co. v. Fletcher, 36 Crawley v. Phillips, 158 Creed v. Stevens, 192 Creekmore v. Chitwood, 644 Crepps v. Durden, 341 Crespigny v. Wittenoon, 82, 566 Cressey v. Parks, 551, 552 Crisp v. Bunbury, 215 Crocker v. Bellangee, 361, 362 v. Crane, 401 Crofts v. Haldane, 165 Cromelien v. Brink, 545, 547, 548, 549 Crone v. State, 45 Cronise v. Cronise, 714, 718, 727, 743 Crooke's Case, 224 Crosby v. Bennett, 216, 665 v. Brown, 480 v. Hawthorn, 453 Crosby v. Patch, Croskey v. Manuf'g Co., Crossvvell v. Crane, Crouch v. Hayes, Crow v. Ramsey, 558 541 531 2-; 237 Dog, Exp., 62,63,281,334 Crowell v. Van Bebber, 174, 178 Crowlev v. State, 248 Crowther's Case, 660 Croydon Guard's v. Reigate Guard's, J 20 Cruger v. Cruger, 129, 697 Cuckfield B'd,' Be, 224, 303, 310 Cull v. Austin, I Cullen v. Trimble, 218 Cullerton v. Mead, 142 Cullins v. Min'g Co., 131 Culver v. Wilbern, 191 Culverson v. Mellon, 17 Cumberland v. Copeland, 268, 295 v. Magruder, 269, 3<>5, 310 Co. v. Boyd, 35, 41 v. Trickett, 50 Ac, R. R. Co. v. Rhoadarmer, 172 Cuming v. Toms, 140 Cu mining v. Bed borough, 662 v. Fryer, 45S, 459 Cummings v. Akron Cement, &c, Co., _ 78 Cummins v. Wire, 191 Cumru Tp. v. Poor Dir's, 21, 298, 299 Cunard v. Hyde, 646 Cundell v. Dawson, 648 Cunningham's App., 396, 496 Cunningham v. Canney, 169 v. Cassidy, 635 Curlewis v. Mornington, 444, 500 Curran v. Arkansas, 509 v. Shattuck, 475 Currier, Be, 701 v. R. R. Co., 496, 597 Curry v. Edensor, 479 Curtis v. Embery, 528 v.Gill, 267 v.Martin, 112 Cusack v. While, 526 Cushing v. Dupuy, 230 v. Worrick, 77, 581 Cusic v. Douglas, 741, 742 Custer Co. v. Yellowstone Co., 212. 218 Custodes v. Jinks, 155 Cutler v. Howard, 427, 430 Cybele, The, 119 Czech v. Gen. St. Nav. Co., 347 D. H. & W. R. R. Co. v. Com'th, 224 xxn TABLE OF CASES. 362, 3(37, I). & L. Plank Road v. Allen, 1). & S. Can. Nav. Co. v. Sansom, 1 >ade v. Madison, Daggett v. State, 198, Daily v. Burke, v. Swope, 711,712,731, I >ale's < ase, 303, 513, Dale, Re, v. Irwin, 610, 1 t'Almaine v. Boosey, Dame's A pp., 11, Danelm, The, J) m forth v. Smith, Daniel v. Janes, ■ 162, ■ • Cleg», v. Com'th, 62, Dannebrog, The, Danville, &C., Co., V. State, K .li. Co. v. Com'th, D'Apremont v. Berry, D'Aquin's Succ'n, D'Arcy v. Tamar R. Co., Dargan v. Davies, Darmstaetter v. Moloney, 115, Darrenberger v. Haupt, Dartm. Coll. v. Woodward, 557, ! i.i-ii v. Van Kleeck, Davenport v. Barnes, v. R. Davey v. Turner, Davidson v. Burnand, v. Gill, v. Lanier, v. MeCandlish, v. New Orleans, Davie v. Brings, Davies v. Berwick, v. Griffiths, v. Harvey, Daviess v. Fairbairn, Davis' A pp., Case, Davis, Exp., 265, v. B'k, v. Clark, v. Curling, v. Dodds, v. Garland, v. .Marshall, v. Minor, v. R. R. Co., v. Ry. Co., v. Robertson, 509, v. Zimmerman, Davison v. Fanner, v.Gill, Davy v. Burlington, &c, R. R. < '• > , Davy v. Morgan, Davys v. Douglas, Daw v. Metrop. B'd, 269, 307, 604, 186, 323 269, 269 664 358 453 97 747 607 617 730 330 487 112 687 185 517 401 564 707 133 156 134 605 345 312 370 713 387 142 604 503 563 92 646 440 713 509 568 297 470 275 66 29 491 707 713 138 127 25 213 685 511 601 510 245 276 221 44 480 561 313 Dawes v. Painter, 454, v. Rodier, Dawson's App., Dawson, Exp , 371, 377, v. Fitzgerald, v. Midland R. Co., 125, v. Shirley, Day v. Brownrigg, v. Munson, v. Savadge, v. Savay, v. Simpson, 194, Deakin v. Deakin, Dean of York's Case, Matter of, Exp., v. Bennett, v. Green, v. Mel lard, v. Reid, Dearborn v. Brooklyne, 29, Dearden v. Townsend, De Armas v. Major, De Beau voir v. Welch, De Begnis v. Armistead, De Bode v. R., Decell v. Lewenthal, 650, Deck v. Deck, Deddrick v. Wood, Deere, Re, De Haven v. Bartholomew, Deitz v. Beard, 110, Del., &c, R. R. Co. v. Burson r , Del afield v. Colden, Delaplane v. Crenshaw, 38, 42, De Londo's Case, Delong v. R. R. Co., Deming v. State, Den v. Helmes, 706, v. Robinson, Denham v. Holeman, Denman v. McGuire, Denn v. Diamond, Dennis v. Thwaites, v. Tovell, Dennistown v. Potts, Dent v. Allcroft, v. Clayton, v. Hoibrook, v. State, Denlzel v. Waldie, DePauw v. New Albany, Depaz v. Riez, Derby v. Bury Comm'rs, De Rosaz, Re, Desban v. Pickett, Des Moines v. Gilchrist, Desplain v. Crow, Detroit v. Detroit, &c, Co., Develly v. Develly, 462 284 616 211 137 18 153 508 449 246 572 109 41 43 547 492 266 690 8 584 491 474 423 645 231 692 237 81 291 476 112 476 161 506, 508 565 764 634 707 685 106 391 478 404 165 191 201 432 382 481 ::sj 292 52 205 37 54 615 508 114 174 TABLE OF CASKS. XX1H Devonshire, The, (Duke) v. Barrow, Devoy v. New York, De Vries v. Conklin, Dewart v. Purdy, 112, 363, Dewey v. Campari, v. Cenir. Car., &c, Co., v. Goudenough, 174, Dewhurst v. Fielden, 68, DeWinton v. Brecon, DeWitt v. S;m Francisco, DeWolf v. Rabaud, 222, I >i ws v. Riley, Diana, The, Dibblee & Co's Case, Dirk's A pp., 143,212, Dickenson v. McCarny, Dickinson, Re., v. Dickinson, 282, v. N. E. R. Co., Diercks v. Kennedy, Diggle v. L. & B. R Co., Dillingham v. Brown, Dimes v. G. J. Can. Co., Dimmock v. Allenby, Dimsdale v. Saddler's Co., Dingley v. Moor, Direct "U. S. Cable Co. v. Anglo- Amer. Tel. Co., 33, Diss v. Aldrich, Dislr. of Col. v. Wash'n Market Co., 38 District T|> ., &c ,*v. Dubuque, 277, Ditcher v. Denison, Ditton's Case, Dix v. Van Wyck, Doane v. Clinton, v. Phillips, Dobell v. Hutchinson, Dobbins v. Bank, 389, Dobinson v. Hawks, Dobson v. Blacktnore, Dodds v. Shepherd, Dodge v. Essex, v. Gridley, Doe v. Avaline, 450, v. Bartle, v. Benyon, v. Bold, v. Brandling, v. Bridges, v. Carew, v. Harvey, v. Holt, v. Jesson, v. Moffatt, v. Naylor, •v. 01 ley, v. Owens, v. Page, v. Roe, 80, 517 659 263 175 366 18 289 454 55 1 290 21 509 538 29 556 476 608 283 106 107 614 22S 350 5:34 344 693 484 488 41 726 102 356 191 116 7 482 692 625 674 298 216 54 474 155 ow Ol 368 83 662 31 96 684 96 31 678 47 500 368 684 Doe v. Rugeley, v. Snaith, v. Watertou, 46, Doggett v. Cattarns, 127, 137, Doherty v. Allman, v. Madgett, Dolan v. Thomas, Dollar Sav. B'k v. U.S., Dolman v. Cook, Dolphin v. Layton, Dominick v. Michael, Donne v. Martyr, Donohoo v. State, Donohue v. Ladd, Dooling v. Moore, Doran, Exp , Dore v. Gray, Dorin v. Dorin, Dorris v Erwin, Dougherty v. Bethune, Douglas, Matter of, v. Douglas, 531, v. (Tausman, Douglass v. Branch B'k, v. Chosen Freeholders, v. Commonwealth, 198, v. Eyre, v. Pac. Mail, &c, Co., v. Pike Co., Dousman v. O'Malley, Dow v. Young, DoWell v. State, Downey v. Ferry, Downing v. Baldwin, v. Capel, v. Ringer, Downs v. Huntington, Dowse, The, Dozie-r v. Ellis, v. Williams, Drake v. Flewellen, v. State, Draper v. Emerson, 191, 509, v. Glenfield, Drayton's A pp. Died Scott v. Sanford, Drennan v. People, Dresser v. Jones, Drew v. Commonwealth, Drover v. Beyer, Druggists' Case, Drummond v. Drummond, 41 Druse v. Horter, Dryfus v. Bridges, 6, 556, 609, 612, Duck v. Addington, Duckham v. Smith, Dudgeon v. Pembroke, Dudley, Re, v. Mayhew, v. Reynolds, 7, Can. Co. v. Grazebrook, 659 478 147 578 204 168 287 506 191 102 531 121 468 407 616 678 519 106 169 523 612 532 597 707 7 334 412 116 1 548 559 271 325 143 404 645 690 220 13 343 707 557 517 155 242 222 5T7 102 320 102 346 86 21S 617 54 369 646 590 216 ;, 12 494 x x i v TABLE "l" CASES. v. (Vden, 1 >ugan v. Bridge Co., v. GittingS, Duignan v. Walker, Duke v. Nav. Co., v. Thompson, Dumfries, The, •",11 255, 495 54 553 445, 62 1 228 387 502, 504 544 341 t ;•_!;; 530 107 246 662 120 •27; i 615 302 597 122 634, 655 .).,( 5 1 5 200 707 67 S 356 305, 310 502 701 491 Dunbar v. Roxburgh, Duncan v. Bell, v. Commonwealth, v. Sc. X. E. R. Co., v. Shenk, v. Tindall, v. Walker, 1 buncombe v. Prindle, Dundalk R. Co. v. Tapster, Dundas v. Dutens, Dunham v. Sage, v. Wright, Bunlap v. Commonwealth, Dunn v. Birmingh. Canal Co Dunston v. Paierson, Dupre v. McCright, Duquesne Sav. B'k's Appeal, Duramus v. Harrison, Durant v. Witliers, I mrhara v. Daniels, Durr v. Commonwealth, Dutton v. Atkins, v. Aurora, Dyer v. Best, v. Covington, v. State, Dyson v L. & N. W. R. Co., E. E. C. R. Co. v. Marriage, 88 E. I. Co. v. Paul, 401, 632 Eakin v. Ranb, 719 Earl of Auckland, The, 493 Earle v. Rowcroft, 187 Earley's Appeal, 170,735, 757 Early's I 206 Earlv v. Homans, 545 East'v. Pell, 596 Angl. R. Co. v. E. C. R. Co., 627 ^ Archip. Co. v. R., 556 Gloucestershire R. Co. v. Bartholomew, 163, 357 London R. Co. v. White- church, 70, 407 Lond. Water Works Co. v. Mile End, 571 Eastman v. Chicago, 130 v. McAlpin, 74, 82 East Un. Tp. v. Ryan, 488 Eastwood v. Mel lor, 578 v. Miller, 470 Eaton v. Basker, 626 Ebbs v. Boulnois, Eby's Appeal, Eccles. Comm'rs v. N. E. Persons, Case of, Echols v. State, Eckert v. Renter, R. 403 75, 583 Co., 13 230 594 178 Eckloff v. Distr. of Col., 207, 259, 260 Eddington v. Borman, 299 Eddlestone v. Barnes, 323 Edgar v. < rreer, 259 tmonwealth, 661, 666 r v. ( !o. Comm'rs, 43 Edinb. R R. Co. v. Wanchope, 42 Tramways Co. v. Torbain, 33 Edmundson v. R. It. Co., 731, 732, 756. v. Wragg, Edrich's < !ase, Edson v. Hayden, Edward v. Darby, v. Trevellick, Edwards' Appeal, 364, 547, 551, 552 11 573 505 179 238 Edwards v. A her. Ins v. v. v. v. v. v. v. Co., 211 Dick, 163, 358 Edwards, 195, 370, 374, 447 Hall, Pope, R., Ross, Rusholme, Ege v. Commonwealth, Egerton v. 3d Munic'y, □gtou v. Lichfield, Egypt Str., Eitel v. Siatc, Elmendorf v. Taylor, Elam v. Rawson, Elder v. Bern is, v. Bradley Election Cases, Electro-M., &c, I !o Eliot v. llimrod, Elizabeth, The, v. Hill, Elkins v. Park hurst, Ella Clark, The, Ellerton, Exp., Elleson v. .Mobile, Ac, R. R. Co., Ellingham v. Mount, Elliot v. Richardson, Elliott v. Chapman, v. Lisbon, v. Lochnane, v. Majendie, v. Swartwout, v. Wood, Ellis, Exp., v. Batts, v. Kelly, v. Ins. Co., v. M'Cormick, 21 ' 1 80 514 334 79, 86 54,57 52 550 301 735 509 452 661 476 533, 628 v. Van Auken, 48 64, 486, 537 54 363 644 588 295 44 594 645 616 138 262, 292 462 112 639 344, 400 298 185 362 454 TABU-: OF i 'ASKS. X X V Ellis v. Milw. City R. Co., 325 v. Murray, 579, 581 v. Paige, 272, 537 v. White, 213 v. W hi i lock, 459 Ellsworth v. .Mitchell, 644 Elmondorff v. Cartnichael, 525 Elrod v. Gilliland, 275 Elston v. Braddick, 371 v. Rose, 66 Elion v. Geissert, 712, 719, 723, 726 Elwell v. Chamberlain, 192 v. Holton, 265, 398 v. Thompson, 263, 300 Ely (Dean of) v. Bliss, 282, 511 v. Cash, 282 Emanuel v. Constable, 80, 86 Emerick v. Harris, 736, 753 Emerson v. Commonwealth, 465, 494 v. Newfoundland, 603 Emily, The, 352 Emmert v. Hays, 99 Empire City B'k, Be, 619 Emporia v. Norton, 273, 695 Encking v. Simmons, 7, 24 Engel v. State, 100 Engelking v. Von Wamel, 5 101, 568 England v. Organ, &c., Co., 131 Engleman v. State, 543 English v. Ozburn, 54S v. Williamson, 547, 552 Englishman, The, 344 Ennis v. Crump, 532 Enniskillen Guardians v . Hillia Enos v. Buckley, 279 Ensign v. Barse, 713 Enterprise, The, 451 456, 702 Epps v. Epps, 257 Erichsen v. Last, 242 Ericsson v. Brown, 132 Erie v. Bootz, 281 282, 296 Co. v. Com'rs of Water W'ks, 24, 226 &c, R. R. Co. v. Casey, 80, 87 Ry. Co. v. Com'th, 497 Erwin v. Moore, 281, 401 Eshel.nan's App., 109, 440, 442, 447 Eskridge v. McGruder, 54 v. State, 248 Eslava v. Elmore, 446 Essley v. Sloan, 191 Esterly's App., 164, 174, 487 Etherington v. Wilson, 201 Evans' Case, 69 Evans v. Erie Co., 229 v. Jones, 25 v. Myers, 507 v. Rees, 297, 482 v. Ross, 515 v. Stevens, 96, 580 v. Summerlein, 615 Evans v. Phillippi, 712 v. Williams, 370. Evansville v. Bayard, 269 Evatt v. Hunt, Everard v. Kendall, 220 Everett v. Wells, 4, 23 Evergreens, Be The, 282 Eversfield v. Mid. S. R. Co., 495 Ewart v. Williams, 43 Ewell v. Daggs, 685 Ewer v. Coxe, 614 Ewing v. St. Louis, 217 Excels Man'g Co. v. Keyser, 389 Petr. Co. v. Emburv, 259, 271 Exch. B'k v. Ford, 99 Explorer, The, 244 Eyre v. Waller, 68 Eyston v. Studd, 36, 180 Ezekiel v. Dixon, 10, 36, 54 F. and M. B'k v. Smith, 247 Factors', &c, Ins. Co. v. New Har- bor Protect' n Co., 118 Fairchild v. Gwynne, 38 Falconer v. Robinson, 262 Fall v. Hazelrigg, 517 Fallon's App, 193,202 Fanny Carvill, The, 344 Farm, and Mech. B'k v. Kimmel, 191 Farley v. Bonham, 41, 42 v. Brvant, 85 v. DeWatres, 268 Farman v. Brooks, 446 Farmer v. Fletcher, 508 v. People, 692 Farmers' B'k v. Hale, 255, 354, 401 Farnum v. Canal Corp., 234 Farr v. Brackett, 271 Farrar v. Barton, 644 Farrell v. Tomliuson, 13 Foundry v. Dart, 7, 146 Fauntleroy v. Hannibal, 706 Fa vers v. Glass, 4, 101 F.iw v. Roberdeau, 106 Feagin v. Comptroller, 68 Feather v. R., 506, 556 Feem-ter v. Ringo, 369, 707 Felkner v. Tighe, 195 Fell v. Burchett, 35 Fellowes v. Clay, 83,85 Fellows v. Denniston, 243 Felt v. Felt, 2S8 Fenelon's Pet'n, 683 Fennell v. Bay City, 713, 715, 716 v. Ridler, 471 Fenns v. Sayre, 191, 358 Fenwick v. East Lond.R.Co., 104, 495 v. Schmaltz. XXVI TABLE OF CASES. Ferguson, In re, Fergusson, Exp., 138, Fergusson v. Norman, Fermoy'a ( Ld.) Claim to Vote, Fidelity, 's App., Co. v. Scott, Fidler v. Elershey, Fieid v. Dickenson, v. < ioldsby, v. People, v. U. S., Fielding v. Rhyl, Figu v. Si k, Sharp'g Co. v. Parsona - v Fuller, 238, 239, 688, Findley v. Pittsburgh, Fink v. O'Neil, 230, Finney v. Ackerman, v. Somerville, Firebrace v. Firebrace, Firmstone v. Mack, 213, 034, First Mass Turnp. v. Fisher, \ u. B k's App., Presb. Cli'cli, Re, Fisher v. Bright, v. ( lonnard, 111, 581, v. Deering, v. Far I v. Hervey, v. Horicon, &c, Co., v. Howard, V. Lord, v. Trovin, Fishmongers' Co. v. Dimsdale, Fiskfi v. Briggs, Fitch r. Comm'rs, Fitze v. S Fitzgerald v. Champneys, 299, Re, Fitzpatrick v. Gibhart, v. Kelly, 47, Flaherty v. Thomas, Flanders v. Merrimack, Flash v. ( !onn, Fleming v. Burgin, v. - Calthrop, 218, Hudson, Fletcher v, v v v Peck, 376, 382, 454, Sondes, Flint, &c., Co. v. Woodhull, Flintham v. Forsythe, Flinl River, &c., (Jo. v. Foster, Flory v. Wilson, Flower v. Lord Leyton, v. Lloyd, Floyd v. Tinner, Floyer v. Edwards, Flynn v. Abbott, Fogg v. Holcomb, Foley v. Bourg, 511 652 504 132 20 1 13 106 ; II- 7" " 167 491 100 102 689 334 232 363 136 234 13 17u 24 6 582 517 363 390 116 125 647 733 478 385 214 .'.I-,; 727 7 536 318 64 509 104 161 453 456 727 581 9 161 737 616 345 488 217 193 75 384 351 Foley v. Comm'rs, v. Fletcher, v. Speir, Kolmcr's App., Folsom v. (lark, Foot v. Truro, Forbes v. Eccles. Com., v. Fo it, v. Lee * Jons. l>'d, v. Marsh, v. Smith, Ford, Re, v. Btirch, V. Drew, v. Ford, v. Hart, v. Kettle, v. Pye, Forqueran v. Donnally, Forrest v. ! [art, Forsdike v. Stone, sr \ , Forster, v. Taylor, Forsyth v. Mai bury, v. Wheeling-, 453, 296 . 171 657 256 371 623 157 106 599 192 402 506 62 122 531, 536 122 14, 350 1 22 62, 63, 2^2 189 543 395 648 363 229 Fosdick v. Perrysburgh, 44, 306, 310, 407, 693 Foster's ( Foster v. Collner, v. Com'ih, v. Blount, v. G. W. R. v. Medfield, v. Neilson, v. Oxf., &c, v. Pritchard, Fotherby v. Metr. R. Fotike v. Fleming, Foulger v. Stead man, Foulke v. R. R. Co., Fowler v. Kendall, v. Lindsey, v. Padgett, v. Pirkins, 267, 280 109 413, 415, 661, Co., R. Co., Co., v. Scully, V. State, v. Tuttle, Fox's App., Fox, In v. New Orleans, V. Sloo, v. Wallis, Foxon v. Gascoigne, KraiUy v. Sieinmetz, Francis v. 1 Jodsworth, Franconia, The, Frai k v. Siegel, Frankf., &c, Ky. Co. v phia, 669 574 154 682 243 653 257 668 261 186 362 120 214 412 2S2, 420, 422, 427, 432 556, 557, 643, 652 80 5s 2 101, 118. 604, 605. 713 116, 232 PI 142 142 616 18 140 102 55, 540 169 iladel- 490 Turnp. Co. v. Com'ih, 541 TABLE OF CASES. XXVU Frankf., &c.,Turnp. Co. v. R. R. Co. 597 Frankland, Me, 97 596 Franklin v. B'k of Engl., 445 v. Franklin, 142 v. Holden, 551 Co. v. Slate, 757 Glass Co. v. Wliite, 615 Franks Oil Co. v. McCleary, 664 Fraser v. Hill, 646 Frazer v. Clifford, 202 Frecking v. Rolland, 178, 592 Frederick v. Goshorn, 303, 310, 311 Fredericks v. Canal Co., 333 v. Howie, 572 Free Grammar Sch., In re, 155 Free Press Ass'n v. Nichols, 608, 620 Free v. Bnrgoyne, 74 Freeman, Be, 115 v. Appleyard, 562 v. Brittin, 192 v. Moyes, 388 v. Read, 207, 547, 635 v. Tranch, 25 Freemantle v. L. &N. W. R Co., 597 Freese v. Tripp, 517 Freestone, Exp., 561 Freetliy v. Freethy, 33 Freke v. Carbery, 241 Fremington Sch., Re, 604 French v. Cowan, 501 v. Teschemaker, 246, 247 Frend v. Dennet, 615, 626 Fricke v. Poole, 453 Friedebom v. Com'th, 341 Frin k v. Pond, 513 Fritz v. Hobson, 303 Frohock v. Pattee, 459 Frost v. Fay, 334 Fry's Elect''n Case, 123, 719, 724, 730 Fry v. Bidwell, 546 v. Booth, 624 Frye v. R. R. Co., 10, Fryeburg Canal v. Frye, 216 Ft. Smith v. McKibbin, 22!) Fnentes v. Montes, 160 Fulghum v. Roberts, 297 Fuller v. Hutch ings, 358 v. Redman, 26, 678 Fullerton v. Bank, 598 v. McCurdy, 191 v. Spring, 694 Fnlton B'k v. Beach, 446 Furey v. Gravesend, 400 433 Furlong v. State, 228 231 Furman v. New York, 88 v. Nickol, 307 v. Nickols, 281 Furnivall v. Coombes, 254 Fusilier, The, 101 119 G. Gage v. Bank, 99 v. Currier, 298, 308 v.Smith, 518 Gaines v. Hot Spring Co., 229 Gale v. Laurie, 485, 536 v. Mead, 677 v. Myers, 99 Galena v. Amy, 429, 431 Gallagher v. Neal. 451 Gal legos v. Pino, 51 Gallini v. Laborie, 645 Galloway v. London, 497 v. Maries, 578 Gallt v. Finch, 549 Galusha v. Cobleigh, 106 Gambart v. Ball, 148, 464 Garbracht v. Com'tb, 241 Garby v. Harris, 102 Gardiner v. Collins, 509 Gardner v. Collector, 43 v. Lucas, 369, 387 v. Sharp, 222 v. Whhford, 268, 309 Garland, Matter of, 376, 382 v. Scott, 476 Garnett v. Bradley, 267, 268, 299 Garrett v. Beaumont, 363 v. R. R. Co., 357 v. Wiggins, 363 Garrigus v. Com'rs, 74, 491, 541 Garvey v. Hartford, 717 Gas Co. v. Wheeling, 48 Gashwiller v. Willis, 60.6 Gaskell v. King, 657 Gaslight Co. v. Turner, 647 Gaston v. Merriam, 273, 291, 363, 365, 531, 534, 536 Gates v. M'Daniel, 593 v. Osborne, 683 v. Salmon, 29, 45 Gatty v. Fry, 337 Gaudet v. Brown, 30, 220 Gauntlet, The, 454 Gearhart v. Dixon, 661 Gearns v. Baker, 598 Geddes v. Brown, 2, 185 Geddis v. Bann Com., 597, 598 Gee v. Thompson, 252 Geere v. Mare, 6 47 Geisen v. Heiderich, 262, 279 Generous, The, 628 Genkin^er v. Commonwealth, 681 Gen'l St. Nav. Co. v. Brit., &c, Co., 535 George v. B'd of Ed'n, 6, 401 v. Skeates, 259 Georgia Pen'y Co. v. Nelms, 60 xxvm TABLE OF CASES. rgia R. R. Co. v. Kirkpatrick, •27-2 Go rsen v. ( 'ommon wealth, 734 i r. E. It. Co. v. Wan! con Gohen v. R. R. Co., 29 1 nania v. Slate, 117 ( roillotel v. New York, 375 German Un. B. & L. Ass'n v. t loldsmid v. Hamilton, 62, 512 Sendmayer, 625 t loldson v. Buck, 305 ( rei ly v. Stoneham, 363 Cold Sir.. Be, 635 Getcliell v. Allen, 542 Gonder v. Estabrook, 106, 517 :u'r.S, 491 1 v . Webb, 548 \ . Beaufort, 212 tit;:; ( loodall v. People, 764 ( ribbs v. < iuilil, 13 lell v. Jackson, 474 543 t . , idenow v. Buttrick, 271 ( ribbon v. Freel. 552 ( roodno v. Oshkosh, 265, 266, 679 Gibbons v. Brittenum, 51, 252 Goodrich v. Milwaukee, 281 v. Chambers, v. Russel, 08 v. Ogden, 714 Goodsell v. Boynton, 70 L » Kblett v. 1 [obson, 197 Goodwin, ccc, Co. v. Da rling 1 381 Gibson v. Belcher, 411 ( roodyear v. Rumbaugh, 378 v. Chateau, 227, 231 ' ri rdon v. Building Ass' ", 615 v. Holland, 482 v. Howden, 646 v. Jenny, 174 333 v. Jennings, 569 v. I'reston, 292 v. Montgomery, 708 v. State, 452 v. State, 97 Giddings v. Coxe, •271 v. Wansey, 616 Gilbert v. Gaugar, 194 Gore v. Brazier, 7,8, 337 448 v. Moose, 194 Gorely, Exp., 64 536 Gildart v. Gladstone, 494 Gorham v. Bish. of Exeter, 38, 503, t riles v. Giles, 112 363 504 v. Grover, 544 v. Linckett, 267, 271 311 Gilkey v. Cook, 351 Gorman v. Hammond, 317 318 Gill v. State, 281 Gorris v. Scott, 675 v. Wells, 392 jrorton v. ( ihampneys, 458 Gilleland v. Schuyler, 238, 690 691 Goss v. Davis, 635 Gillespie v. Smith, 548 635 ( rossler v. < rood rich, 200 Gillette v. Hartford, 498 Goswiler's Est., 551 552 v. Shark, 281 Gottman v. Shoemaker, 631 Gillian v. .Moore, 58 Gough v. Davies, 87 Gillin v. Armstrong, 200 Gould v. Langdon, 71 Gilmer v. Lime Pt., 47o v. Sub Distr., 503 Gilmore v. Shuter, 368 v. Wise, 435 5 1 5 Gilroy v. Commonwealth, 592 Governor v. Howard, 688 689 i Kltner v. * lorham, 183 Cover's Case, 668 Gird v. State, 109 Grace v. Bishop, 120 Girard, &c, Co. v. Pbilad'a, 96 v. Church, 328 Girdlestone v. Allen, 420 G ramus v. Commonwealth, 661 Gitcliell v. Kreidler, 126 Graham's App., 501 Given v. Rogers, 194 Graham, Exp.. 685 v. Simpson, 167 v. Commonwealth, 123 Glaholm v. Barker, 6S0 v. Greenville, 7:v.i Glaze v. R. It. Co., 22S v. Ingleby, 634 (1.17 Glazier v. Merringer, 200 v. 1 g, 615 Gleaves v. Marriner, 023 v. O'Fallon, 215 ( Hidden v. Simpler, 615 ,641 v. K R. Co., 43<3 • Moss >p v. Heston, 073 v. Ry. Co., 686 Glover v. Wilson, 227 228 229 v. Van Wyck, 174 Gloversville B'k v. Peace, 192 t rrant v. Ellis, 283 ,511 Gluck v. I 245 v. Hamilton, 222 Glyde v. Keister, 597 v. Hickox, 331 , 500 Godcharle8 v. Wigenian, 507 v. Kemp, 388 Goddard, Be, 658 v. McLester, 645 v. Boston, 281 Co. v. Sels, 259 v. Gloninger, 505 Graver v. Fehr, 134 TABLK OF CASES. XX1S Graves v. Ash ford. v. Graves, 148, v Tjpfo' v. ajc 00 , V. State, Gray v. Brown, v. Cookson, 314, V. Larrimore, v. Obear, v. Piillen, v. K., Great Charte v. Kennington, Centr. Gas Co. v. Clarke, p]ast. Ry. Co. v. Goldsrxiid, North, &c, Co. v. Edgehill, N. R. Co. v. Ivett, W. R. Co. v. Bailie, W. R. Co. v. Bisliop, W. R. Co. v. R., W. R. Co. v. R. Com., W. Ry. Co. v. Swindon, &c, Ry. Co., 336, 582, Greeley v. Jacksonville, 259, Greely v. Thompson, Greene, Exp., Green v. Cheek, v. Coin'th, v. Kemp, v. Miller, v. New York, v.R., v. Tyler, v. U. S., v. Wood, Greencastle Tp. v. Black, 714, 737, Greenheld v. Morrison, Green how v. Parker, Greenway v. Hurd, Greenwood, Exp., v. Greenwood, v. Hammersley, Greer v. State, 58, 266, Gregg Tp. v. Jamison, Gregory's Case, Gregson v. Potter, Greig v. Bendeno, Grenier v. Klein, Grenada Co. v. Brogden, Grenfell v. Inland Rev. Com., Grey v. Bennett, v. Mobile Trade Co., v. Pearson, Griffin's Case, Griffin v. Carter, v. Forrest, v. Sanbornton, v. State, Griffith v. Taylor, 404, Griffiths, Exp , v. Sears, 192, 194, Grill v. The Gen. Iron Screw Col- lier Co., 61, 48, 54, 191, 276, 313, 224, 31. 464 293 37 256 191 359 349 678 599 588 152 311 632 216 638 187 461 422 489 5S3 262 505 697 45 295 634 4 592 472 191 232 437 738 244 470 403 408 432 657 320 108 298 614 80 517 246 241 459 686 4 51 89 544 674 681 543 200 463 189 Grim v. Soli. Distr., . 381, 382, 394 Grimes, Exp., 136 Grimmett v. State, 740 Grindlay v. Barker, 606 Griswold v. Atl. Dock Co., 1 1 1 v. Gallop, 703 Grob v. Cushman, 1 1 Grocers' Co. v. Donne, 598 Gross v. Fowler, 4, 543 v. Funk, 192 Grosvenor v. Ry. Co., 333 Guard v. Rowan, 363 Gue v.Kline, 411 Guerin v. Moore, 380 Gulfaxe, The, 244 Gunnestad v. Price, 30, 220 Guiiter v. Leckey, 174, 451 Guthrie v. Fisk, 596 Gutierrez, Exp., 383 Guyman v. Burlingame, 194 Gwinner v. R. R. Co., 277 Gwyn v. Hardwicke, 502 Gwynn v. McCauley, 23 Gwynne v. Burnell, 7, 11, 443, 627 Gye v. Felton, 360 Gyger's A pp., 104 Est., 77, 106, 111, 581, 582 H. Habergham v. Vincent, Hack v. Lond. Prov. B : Hacking v. Lee, Hackley v. Sprague, Hadden v. Collector, Hadfield's Case, Had ley v. Perks, Hagenbuck v. Reed, Hager v. Cleveland, Hagerman v. B. and S. Hagerstown v. Sehner, Hahn v. Salmon, v. U. S., Haigh v. Kaye, v. Sheffield, Hailes v. State, Hakes v. Peck, Halbert v. McCulloch, v. Skyles, Haldane v. Beauclerk, Halderman's App., Halderman v. Young, Hale v. Burton, v. Henderson, v. Lawrence, Halev v. Petty, Hall," Exp., v. Adams, v. Brown, v. Ernest, Ass'n, 636 ld'g Soc'y, 161 491 192 8, 74, 75 56 527, 565 29 357 492 386 SO, 459 501, 505, 517 445 470 704 515 99 704 528 75, 17 2 157, 394, 539 477 645 509 488 101 179 707 192 223, 478 4 XXX TABLE OF CASES. Hall v.Knox, 410 v. Maule, 227 v. Mullin, 645 v.Nixon, 491,658 v. Pritchett, L02 v. Si ate, 451 v. Sail. B. R- Co., 628 v. Superv'rs, 304 v. Wright, 627 ffallett v. Novion, 642 llallisw.il v. Bridgewater, 254 Halsey v. Hales, 105 Halton v. Cove, - s Ham v. Boston B'd of Police, 64, 2 6 v. Sawyer, v. State, v. Steamboat, Eamilton v. Buxton, v. Dallas, v. The R. B. Hamilton, II unlet v. Taylor, Hamlyn v. Nesbit, Hammersmith Rent Charge, Be, Ry. Co. v. Brand, 507 259 216 252 242 700 821 605 88, 597 77 to:; 189 Hammock v. Loan Co., Hammond v. lnl Hampden v. Walsh, Hampton v. Commonwealth, 658, 683, 685 v. Erenzeller, 260,545 Hanchett v. Weber, 589 Hancock v. Lablache, 27, 432 Co. v. B'k, 216,671 Jlandley v. Cunningham, 547, 548 Handy v. Hopkins, 593 v. K. R. Co., 704 Haney v. State, 436 Haney's Trusts, Be, 245 Hankius v. People, 451, 452, 511, 557 Hannah v. Whyman, 92 Hannibal, &c, R. R. Co. v. Shack- leit, 346,498 Hannon v. Madden, 174 Bappending v. Dutch Church, 509 Harbeck v. New York, 263 Harbert's Case, 152 Harden v. Hesketh, 283 Hardin v. Taylor, 227 Harding v. People, 249, 367 v. Vandewater, 606 Hardy v. Bern, 276 v. Hunt, 189 v. Kyle, 550 Hard viii hi v. Whitaker, 339 Harford's Trust*, 493 Hargreaves v. Diddams, 185 Harington v. Rochester, 252 Harker v. Han. & St. Jos. Ry. Co., 217 1 [arlan v. Sigler, 390 Harlock v. Ashberry, 200 Harlock v. Jackson, 227 Harned v. Gould, 284 Harold v. State, 271 Harpending v. Haight, 42 1 larper's Appeal, 566 Harper v. B'k, 160 v. Carr, 604 v. Taswell, 439 v. Young, 358, 642 Harrell v. 1 larrefl, 51 Harriet, The, 54,466 Harrington v. Harrington, 702, 703 v. Ramsey, 415 v. Smith, 23 Harris' Settled Est., 374 Harris v. Franconia, 240 v. (Jest, 616 v. Haines, 348 v. Jenns, 277, 574 v. Lester, 542 v. Townshend, 690 v. White, 697 Harrisburg v. Sheck, 281,303,305, 310 Harrison's Case, 555 Harrison, Exp., 628 v. Carter, 563 v. Conrtright, 722 v. L. & B. R. Co., 406 v. Leach, 473 v. Sager, 517 v. Smith, 473 v. Stickney, 346 v. Walker, 54, 678 Harrod v. Worship, 472 Hart's Appeal, 476 Hart v. Herwig, 241 v. Kennedy, 583, 584 v. Plum, 619 v. R. R. Co., 704 v. State, 381 Hartf. Bridge I lo. v. Ferrv Co., 29, 496 &c, R. R. Co. v. Kennedy, 6(11 Hartley's App .1, 384 Hartley v. Hart lev, 271 v. Hooker, 217 Hart man's Appeal, 487 Hartman v. Bechtel, 594 v. Munch, 126 Hartnall v. Ryde Com'rs, 186 Hartnett v. State, 103 Hartung v. People, 376, 681 Harvey v. Tyler, 362 v. Virginia, 263 II iscltine v. Hewitt, 157, 539 Haskell v. Jones, 519 Hasluck v. IVdley, 369 Hassenplug's Appeal, 142, 114 Hastings, Be, 291 v. Aiken, 678 v. Lane, 3*i3 Hatch v. Douglas, 194 TABLE OF CASES. XXXI Hatfield, Road in, 683 Hathaway v. Johnson, 458 Hattersley v. Barr, 491 Hawes v. Paveley, 213 Hawkins v. Carroll Co., 712, 717, 718 v. Gathercole, 36, 283 Hayes v. Hanson, 54 Hay man v. Flewker, 86 v. Pond, 120 Haynes v. Jenks, 281 Hay ward v. Gilford, 482 Haywood v. Gunn, 279 Head v. Ins. Co., 557, 615 Heald v. State, 681 Healy v. Dettra, 429 Heane v. Carton, 182 Heard v. Heard, 701 Hearn v. Ervin, 174 v. State, 436 Heaston v. R. R. Co., 703 Heaton v. Horner, 405 Hebbert v. Purchas, 40, 503 Hebert, Succ'n of, 45 Hebnrn v. Warner, 170 Hed worth v. Jackson, 41 Heebner v. Chave, 131 Heel is v. Brown, 56 Heeter v. Glasgow, 155 Heine v. Appleton, 156 Heiskell v. Baltimore, 173 Helps v. Glenister, 611 Hemstead v. Phoenix Gas Co., 41 Henchall v. Schmidlz, 390 Henderson v. Bellew, 191 v. Bise, 463 v. Brown, 404 v. Maxwell, 614 v. Royal Brit. B'k, 624 v. Sherborne, 317, 456, 471 v. State, 364 Hendrick's App., 728 Hendrickson v. Fries, 158 Hendrix v. Reiman, 54 Henley, Re, 227 Henniker v. R. R. Co., 216 Henrette v. Booth, 69 Henry v. Carson, 550 v. Morgan, 160 v. Newcastle Trinity House, 1 5 v. Stuart, 234 v. Thomas, 19 v. Tilson, 62,351 Henshaw v. Foster, 711, 714 Hentz v. Jewell, 194 Hepburn v. Griswold, 248, 428 Herbert's Case, 29S Herbert v. Easton, 384 v. Sayer, 65 Hering v. Chambers, 508 Hermance, Re, 572 Hermann v. Seneschal, 404 I In-old v. State, 510 Herron v. Carson, 270, 271 Herschfield v. Clarke, 145 Hersha v. Brenneman, 438, 440, 1 17 Hershey v. Latham, 279 Hers Inzer v. Florence, 370, 373 Hersom's Case, 213, 21S, 521, 527 Heseltine v. Siggers, 562 Hesketh v. Atherton, 605 Hess v. Pegg, 747, 748 Hettrick v. Hettrick, 133 Hewer v. Cox, 123 Hewitt v. Price, 163 Heydon's Case, 35, 135, 166 Heywood v. Shreeve, 178 Hezekiah, The, 138 Hibbert v. Purchas, 697 Hickernell v. Bank, 490 Hickory v. Ellery, 701 Tree Road, Re, 251, 275, 686, 687 Hicks, Exp., 551 v. Jamison, 9, 22 Hickson v. Darlow, 367, 369 Hider v. Donell, 139 Hiester v. Fortner, 99 Higgs v. Schroeder, 24 Higley v. Gilmer, 548 Hildreth v. Gwindon, 616 v. Heath, 234 Hilke v. Eisenbeis, 5^5 Hill, Exp., 96 v. Bowden, 635 v. Boy land, 623, 755 v. Gaw, 592 v. Goodman, 378 v. Hall, 293 v. Lond. & Co. Assur. Co., 430 v. Smith, 699 v. State, 700, 701 v.Williams, 342,343,435,541 v. Wright, 235 Hilliard v. Lenard, 383 Hillman, Exp., 102 Hills v. Chicago, 712, 714, 715, 718, 720, 759 v. Shepherd, 188 Hind v. Arthur, 24 Hinde v. Chorlton, 163 Hinds v. Barton, 597 Mine's App., 133 Hines v. R. R. Co., 74, 151, 432, 453, 455, 456 Hinsdale v. Larned, 216 Hinton v. Dibben, 18, 74 Hipkins v. Birmingham Gas Co., 184, 495 Hirschburg v. People, 682 Hirst v. Molesbury, 570 Hitchcock v. Way, 383, 692 Hixon v. George, 119 XXX11 TABLE OF CASES. Hoard v. Wilcox, 664 inson v. Adkins, 615 Hobbs v. Henning, 647 Hotaling v. Cronise, 174, 177 v. K. R. 1 . 393, 517 Hough v. Windus, 539 Eoboken B. A. v. Martin, 624 House v. McKenn y, 189 Hobson v. Neal, 393, 684 v. State, •J 7 5 1 1 kaday v. Wilson, 281 Houseman v. < Jommonwealth, 711, 721, :inson v. Wyatt, 692 725, 726, 727 Hodgson v. Bank'g House, 551 Houston v. Moore, 22:5, L06 v. Carlisle, 225 &c, Ry. Co. v. Travis v. Jex, 571 C »., 229 v. Roth, 546 r v. Pa. < 2:;4 v. Temple, 647, 651 Howard Ass'n's App., 7, 67, 251, 352, Hodsden v. Harridge, 444 5 1 3 ] [odson v. Sharpe, 189 Howard Co , Div'n of, 44 703 704 Hoffman v. Delibanty, 531 v. Boddington, 612 v. Locke, 387 v. Dill, 141 v. Strohecker, 159 v. State, 681 Hogan v. Guigon, 271 Howe v. Peckham, 173 ! [oguet v. Wallace, 447, 448 v. Starkweather, 309 Hull. ,in In. v. St. Leonard' 5, 667 v. Svnge, 657 Holbrook v. Holbrook, 44, 62, 115 v. Welch, 245, 509, 510 v. Nichol, 397 Howell v. Coupland, 627 Holgate v. Slight, 641 v. Lond. Dock Co., 419 Holl v. Deshler, 44, v. State, 743, 744 Holland, Exp., 596 v. Stewart, 557, 647 653, 656 v. Makepeace, 62 Howes, Ee, 701 V. Osgood, 621 v. Inland Riv. B'd, 561 v. State, 136 Howey v. Miller, 174, 178 Holliday v. St. Leonard, 186 Hoyland v. Brenmer, 161 Hollingworth v. Palmer, 33, 399 I loyle v. Hickman, 469 Hoi lis v. Marshall, 329 1 [oyt v. Thompson, 509 Hollman v. Bennett, 174 Hubbard v. State, 682 Hoi man's App., 565 v. Wood, 134 Hoi man v. Johnson, 647 Huber v. Reilly, 628 Holme v. Guy, 39 Huckle v. Wilson, 215 Holmes v. Clarke, 672 Hudler v. Golden, 142 v. Service, 26 Hudson v. McRae, 185 Holt v. Green, 650 655 v. Tooth, 41 Homan v. Liswell, 547 Hudston v. Midi. R. Co., 527 Home Ins. ( !o. v. Tax. Distr J 262 Huff v. Alsup, 89 Homer v. Com'th, 698 Huffman v. State, 453 467 v. Fish, 13 1 i ugg v. Camden, 619 Homoeop. Life Ins. Co. v. Marshall , 155 Huggins v. Bambridge, 223 Hood's Est., 242 Hug lies' Case, 31 632 Hood v. Dighton Bridge, 336 Hughes, Exp., 568 Hooker v. De Palos, 647 v. Buckland, 403 v. Hooker, 363 v. Chatham, 200 Hooper v. lid wards, 360 v. Chester R. Co., 86 v. Sheimer, 509 v. Farrar, 531 ,532 Hopkins v. Crowe, 403 v. Lumley, 393 v. Jones, 363 , 371 v. Morris, 445 ,530 v. Fogler, 100 Huidekoper v. Burrus, 254 v. Long, 23 v. Douglass, 495 Hopper, Re, 606 Huling v. Drexell, 634 Hopt v. Hopt, 181 Hull v. Hull, 27 Hopton v. Thirlwall, 183 v. R. R. Co., 216 Horn v. [on, 530 B'k, Exp., 628 v. R. R. Co., 703 , 704 Dock Co. v. Browne, 471, 478, Horner v. State, 452 456 494 Horsfall v. Davy, 666 v. La March, 494 Horton v. School Comm'rs, 8 . 281 Humble v. Mitchell, 69 , 562 Hume v. Gossett, 281 Hutnfrey v. Gery 291 Humphrey v. Kingman, 200 Humphreys v. Green, 445 v. Magee, 189 Hungerford Market Co. v. City St. Boat Co., 633 Hunt v. Gr. N. K. Co., 283 v. Hibbs, 620 v. Holden, 543 v. Jennings, 683 v. R. R. Co., 344, 400 v. State, 754 v. Wall, 23, 446 v. Wimbledon L. B'd, 626 Hunter v. Gibbons, 13 v. Kockolds, 73,291 v. Potts, 241 v. Reilly, 140 Huntington v. Nicoll, 628 Huntingtower v. Gardiner, 460 Huntress, The, 714 Hurford v. Omaha, 618 Hursh v. Hursh, 549 Hurst v. Hawn, 259 Hussey's Case, 156 Huston v. Stringham, 191 Hutchin v. Niblo, 29 Hutchins, Exp., 373 v. Player, 298, 301 v. Stilwell, _ 189 Hutchinson v. Gillespie, 663 v. Greenwood, 48 2 Hutton v. Scarborough Hotel, 492 Huxham v. Wbeeler, 3u3 Hyatt v. Taylor, 7, 8 Hyde v. Johnson, 65, 141, 350, 536 v. White, 743 Park v. Oak Wood Cem'y Ass'n, 281, 298 Ihmsen v. Nav. Co., 152, 254, 256, 363, 365 lies v. West H. Union, 337, 478 111., &c, Canal v. Chicago, 271, 683 L. & L. Co. v. Bonner, 375 W. R. R. Co. v. Gray, 616 Imper. Gas Co. v. London Gas Co., 13 India, The, 278, 697 Indiana, &c, Ry. Co. v. Attica, 490 Indianapolis v. Imberry, 391 Ac, R. R. Co. v. Blackraan, 148 &c, R. R. Co. v. Kinney, 496 Indian Chief, The, 119 Industry, The, 323,471 Ingalls v. Cole, 68 Ingate v. Au3tr. Lloyd's Co., 555 ? CASES. xxxm Ingersoll v. Randall, 644 v. State, 746 Ingraham v. Regan, 518 v. Speed, 400 Ings v. London, &c, R. Co., 385 I nu is v. Templeton, 202, 111 5 I on a, The, 486 Iowa, &c, Co. v. Webster Co J 246 Irish Peat Co. v. Phillips, 615 Iron Man. Co. v. Ilaight, 752 Ironsides, The, Irresistible, The, 681 689 Irwin v. Williar, 1 9 1 Isham v. Iron Co., 54 288 Isherwood v. Oldknow, 506 Iveson v. Moore, 673 Iverson v. State, 282 Ivey v. Nicks, 358 v. Phii'er 189 J. Jackman v. Garland, 366 Jackson v. Beaumont, 637 v. Bo wen, 192 v. Bradt, 170 v. Burnham, 65 v. Cat 1 in, 167 v.Collins, 130,162, 360, 400 v. Gilchrist, 80 V. Ingraham, 474 v. Purdue, 456 v. Spittall, 245 v. Varick, 446 v. Warren, 142 v. Waters, 474 v. Wool ley, 372 Co. v. State, •-'27 Jacob v. U. S., 438, 443 Jacobs v. Brett, 211, 213, 215 v. Featherstone, 17 v. Miller, 733 v. Walton, 189 Jacoby v. Gogell, 153 v. Shafer, 54, 57 James v. Com'tb, 699 v. Dubois, 29, 80, 678, 685 v. Patten, 11 v. R. Co., 221, 630 v. Rowland, 396 Jamison v. Burton, 183. 518 v. Jamison, 154 Janes v. Buzzard, 677 Janesville v. Markoe, 306 Jaques v. Weeks, 159 v. Withy, 692 Jarman, Exp , 424, 52s Jassov v. Delins, ;-r, Jefferis v. R. R Co., 5.17 Jefferson v. Litchfield, 244 XX XIV TABLE OF CASES. Jefferson v. Whipple, 227, 229 Jones v. Hutchinson, 433 Jefi'ersonville v. Weems, v. Johnson, 346 ry v. Mar-hall, 616 v. Join s, 23, 2 1 Jeffreys v. Boosey, 4, 74, 243, 268 v. Mersey Docks, 206, 514, 520 v. Kvans, 567 v. Ogle, 368 Jeffries v. Alexander, 193, 197 v. Sevier, 358 Jenkins v. Ewin, 747, 750, 751 v. Smart,, 17 Jenning's Case, 565 v. Smith, 648 Jennings v. Hammond, 646 v. State, 621, 681, 689 Jersey City v. Hudson, 336 v. Surprise, 5 1 v. R. R. Co., 259, 495 V. Talhain, 223 &c, Co. v. Consumers' v. Taylor, 186 Gas Co, 9, 495, 671. 672 v. Thompson, 102 Co. v. Davison, 33, 335 v. Vict. Dock Co 482, 184 Jesson v. Wright, 350 v. Water Com'rs of Detroit, 96 Jesus College Case, ] 55 Jordan v. Trumbo, 146 Jewell v. Stead, 503 v. Wisner, 370, 373 V. Weed, 9 Jory v. Orchard, 139 Jewison v. Dyson, 500 Josselyn v. Stone, 227 Jocelyn v. Barrett, 43* Journeay v. Gibson, 384 395, 396, 397 Johannes, Tlie, 212 v. State, 615 John's A'lni'r v. Pardee, 171 Joyce v. Booth, 638 Johns v. State, 320 Julius v. Oxford (Bp.), 421 Johnson's A pp., 99, 193 Justice v. R. R. Co., 180, 217 ise, 248, 249 Justices v. House, 621 Johnson, Exp., 14, .Vis v. Bush, 278 v. By id, •J.V.i K. v. Colam, 218 v. Credit Lyonnais, 160 Earner v. Clatsop Co , 122 v. Gibbs, 441 Kamerick v. Castleman, 266, 397. v. Harris, 103 Kane v. Com'th, 543 v. Hudson, 651 v. People, 149, 167 v. Meeker, 680 v. R. R Co., 695 v. Merchandize » 7(11 Kansas Pac. Ry. Co. v. Wyandotte v. R. R.Co. (23 111.) ,595,743 1 .., 55, 252 v. R. R. Co. (49 N. Y.), 7 Kate Heron, The, 6 v. State, 617 Kay v. Goodwin, 681 v. Tale, 419, 427 Kearns v. Cordwainer's Co., 86. 563 v. Tompkins, 404 Kearney v. Vaughan, 362 v. Upham, 74, 139 Keeling's Road, 54, 57 v. U.S., 150 Keely v. O'Connor, 127 Johnston's Est., 259, 271, 277 Keeran v. * ri iffitb, 159 Johnston v. Bank, Keighley's Case, 21 1.3 v. Hogg, 563 Keith v. Quinney, 36, 39, 400 v. White, 106 Keller v. Com'th, 311, 437 Johnstone v. Huddleston J 87 v. Nutz, 160 Jollie v. Jacques, 614 v. State, 681. 682 Jolly v. Hancock, CDS Kellogg v. Carrico, 551 Jones, Exp., 102, 472, 596 v. Decatur Co., 229 v. Bird, 598 v. < >shkosh, 238 v. Borden, 228 v. Page, 427, 428, 6 1 2 v. Brown, 251 Kelsev v. Kendall, 398 v. Carmarthen, 596 Kelly v. Bartley, 189 v. Collins, 144 v. Pittsburgh, 594 v. Davis, 390 v. R. R Co., 373 v. Dexter, 134, 173, 251, CQS Tp. v. Union Tp. 156, 292, 331, v. Estis, 453 407 v. Green, 117 Kendall v. Robertson, 192 v. Harrison, 418, 423 v. U. S., 115 v. Hughes, 404 v. Vanderlip, 191 TABLE OF CASKS. XXXV Kenion v. Hill, Kennedy v. Cunningham, v. Gibson, v. Gies, 718, v. Kennedy, v. Palmer, v. People, v. Sacramento, v. Townley, Kensington v. Keith, Kent v. Rand, v. Somerville, v. Walton, Kentucky v. Ohio, Kenyon v. Hart, Kepner v. Commonwealth, Kerlin v. Bull, Kerlinger v. Barnes, Kerr v. Haverstick, Kerrigan v. Force, Kerrison v. Cole, Kessler v. Smith, Keynsham v. Baker, Key port St. Co. v. Trans. Co. Kibbe v. Ditto, Kibble, Exp., Kilgore v. Commonwealth, Kim bray v. Draper, Kimbro v. Colgate, King's Appeal, King v. Cook, v. Cornell, v. Course, v. George, v. Greenway, v. Low, v. McCann, v. Martin, v. Moore, v. O'Brien, v. Ry. Co., v. Thompson, Kingley v. Sch. Dir's, Kingsbury v. Kirwan, v. Sperry, Kingsford v. G. \V. R. Co., Kingsland v. Palmer, Kinney v. Mallory, K inning's Case, Kip v. Hirsch, Kirk v. Armstrong, v. Dean, v. Todd, Kirkpatrick v. Adams, v. Gibson, v. Tattersall, Kirkstall Brewery, Re, Kirlpalrick v. Byrne, Kirtland v. Hotchkiss, Kitcheu v. Bartsch, 501 593 432 728, 733 400, 517 701 712 427, 429 227 255 615 S2 192 508 162 703 152, 335 281, 363 517 705 657 693 124 , 38, 42 279 378 273, 299, 304, 308 387, 389 691 133 226 271 395, 396 567 138 201 616 245 701 245 333 573 588 194 391 18, 145 259, 282 259 605 246 616 82, 503 13, 350 1£4 517 66 540 7,23 235 500 Kitchen v. Shaw, r,ns v. Smith, 698 Kite & Lane's Case, 218 Kittanning Ins. Co. v. Scott, 20 Kittow v. Liskeard, 137 Kline v. Evershed, 403 v. Kline, 106 Klinginsmith v. Nole, 325 Klopp v. Live St. Ins. Co., 137 Knabb v. Kaufman, 764 Knapp v. Brooklyn, 115 v. Duclo, 542 Kneass v. B'k, 667 Kneedler v. Norristown, 192 Knight, Re, 284 v. Bean, 616 v. Farnaby, 448 v. Ocean Co., 515 v. R. R. Co., 244 v. Thayer, 169 Knoup v. B'k, 687 Knox v. Baldwin, 687 v. Lee, 428 v. Waldborough, 244 Co. v. McComb, 305, 309 Knubley v. Wilson, 4.">9 Koch's Est., 391, 392 Kocher v. Christian, 202 Kohl v. U. S., 222 Kollenberger v. People, 54. 282 Koltenbrock v. Cracraft, 701 Koontz v. Howsare, 58 Korah v. Ottawa, 259, 276 Kossuth Co. v. Wallace, 390 Kountze v. Omaha, 42 Kramer v. Goodlander, 180 v. Rebman, 175 Kronheim v. Johnson, 482 Kugler's Appeal, 696 Kuntz v. Davidson Co., 233 Kupfert v. Build'g Ass'n, 396 Kntztown, Re Alley in, 269 Kyle v. Jeffreys, 26S v. Montgomery, 131 Kynaston v. Mackinder, 543 Kwok Ah Sing v. Atty.-Gen 128 Lacey v. Moore, Lackawanna Co. v. Stevens, &c, Co. v. Little Wolf, Ladd v. Kimball, v. Wiggin, Lade v. Trill, Lafone v. Smith, Lafourche Parish v. Terrebonne Parish, La Grange Co. v. Cutler, 54, 282, 290 29 149 622 326 192 632 195 37 XXXVI TABLE OF CASES. Lair v. Killmer, 451, Laidler v. Young, Lake v. Butler, 552, v. Caddo Parish, 36, 37 v. K. It. Co., 108, Lamb's App , Lamb v. N. L R. Co., v. Scholtler, v. Walker, Lambert v. Taylor, Lambertson v. Hogan, 395, Lamborn v. Dickinson, Lammer, Be, Lamville, &c, B'k v. Bingham, Lancashire v. Shelford, Re, Road in, Lancaster v. Greaves, Lance's A pp., Lane's App., 486, Lane v. Bennett, v. Cotton, v. Harris, 565, v. Kennedy, v. Kelson, ' 381, 382, 389, v. Schomp, v. Wheeler, Lanfear v. Blossman, Lang v. Kerr, v. Scott, Langdon v. Potter, Langham Kink Co., Re, Langton v. Hughes, 641, Lansdale v. Cox, Lansing v. Wiswall, Larchin v. N. W. B'k, Larkin v. Saffarans, Larpent v. Bibby, Larzelere v. Haubert, La Salle v. Blanch ard, LaSelle v. Whitfield, Lash v. Von Neida, La. Si. B'k v. Xav. Co., Latham v. Hyde, v La lone, Latless v. Patten, Lathrop v. Dunlop, v. Ins. Coni'rs, Laude v. Ry. Co., Laugh lin v. Com'th, 688, Lauve's Succ'n, Lavalle v. People, Law v. Hodson, Lawrence v. Belger, v G. N. R. Co., v. King, 64, v. Wilcox, R. R. Co. v. Mahoning Co., Lawson v. Gibson, Lazear v. B'k, 455 80 553 484 170 495 683 13 227 509 ■is.; 191 227 139 542 568 599 665 27 147 703 229 395 437 616 507 88 216 7,8 572 647 104 673 123 391 371 171 363 515 206 658 649 88 700 246 80 694 692 508 708 648 541 598 536 637 389 282 191 Lea v. Feamster, Leach v. Jay, v. N. 8. R. Co., Lead Smelt. Co. v. Richardson, Leake v. Linton, Learoyd, Exp , Leaser v. Owen Lodg' 1 . Leath v. Vine, hers v. B'k, Leavenworth Co. v. Miller, Leavitt v. Blatchford, Le Couteulx v. Buffalo, I Hie v. Xav. Co., B'k, v. Barkhampsted, v. Buckheit, v. Bude, &c, R. R. Co., 191 105 600 55 1 134 329 370 185 691 747 93 590 313 741 96, 468 391 203, 449 42 i — v. Cook, 375 v. Forman, 152 v. Kirhy, 127 v. Lacey, 183 v. Lanahan, 373 v. Simpson, 181 v. Stiger, 191 Lees v. Newton, 102 v. Summergill, Leese v. Clark, 42 Leete v. Hart, 404 Lefever v. Witmer, 367, 370 v. Pardoe, Leggate v. Clark, Leggatt v. Gt. N. R. Co., LegOUX v. Want", and v. Sidney Coll., Lehigh Bridge Co. v. Coal, &c, Co., Lehigh 257, 615 439 446 704 438 258 100 750 Co. v. Meyer, v. Shock, Coal Co.'s App., Iron Co. v. Lower Ma- cungie, 758 Lehigh Water Co.'s App., 485, 729 Lehman v. McBride, 262 v. Robinson, Leicester v. Burgess, (Earl) v. Heydon, Leigh v. Kent, 500, 502, 697 Leighton v. Walker, Leinbach v. Templin, Leith Com'rs v. Poor Insp'rs, Le Louis, Lenian v. Housley, Letnane v. Stanley, Leonard v. Com'th, v. Fuller, Leoni v. Taylor, Leroux v. Brown, Le Roy v. Chabolla, Les Bois v. Bramell, Lester v. Foxcroft, 240, 534 304 524 698 318 178 226 243 3S0 66, 483 132,711,716 405 10, 11 239 54 396 445 TABLE OF CASES. XXX VII Lester v. Garland, 546 v. Torrens, 337, 345 Le Sueur v. Le Sueur, 234 Levasser v. Washburn, 227 Levering v. R. R. Co., 71, 435 v. S hockey, 363 Leversee v. Reynolds, 2, 9 Levi v. Sanderson, 680 Levy v. State, 705 v. Yates, 645 Lewis, Exp., 105 Be, 330 v. Arnold, 126 v. B'k of Ky., 707 v. Barnett, 346, 356 v. Oarr, 471 v. Foster, 681, 682 v. G. W. E. Co., 37 v. Hennen, 630 v. Ho II ah an, 759 v. Labauve, 635 v. Perkins, 178 v. Sherman Co. Com'rs, 129 v. State, 173 v. Stout, 273 v. Welch, 642 Lexington Ave., Be, 713 Lichfield v. Simpson, 662 Lichteustein v. State, 281 Life Ass'n, Be, 227 v. Assessors, 756 Liffen v. Pitcher, 548 Lightfoot v. Tenant, 647 Lightner v. Mooney, 160 Lillenstine v. State, 481 Limbert's App., 562 Limestone Co. v. Rather, 621 Lincoln v. Hapgood, 730 v. Wright, 445 B. & S. Ass'n v. Graham, 396 College Case, 44 Lindley v. Davis, 517 Lindsay v. Leigh, 453 Lindsey v. Cundy, 511 v. Miller, 227 v. Rutherford, 650 Lindsley v. Williams, 436 Lining v. Bentley, 593 Link v. Assoc'n, 191 Linn v. Scott, 395 Co., County seat of, 514 Linton's App., 57 Linton v. Blakeney, 690 v. Sharpsburg Bridge, 108 Lion Ins. Ass'n v. Tucker, 95 Lippincott v. Leeds, 592 Lisbon v. Clarke, 694 Lismore v. Beadle, 637 Little v. Gould, 156 v. Poole, 64S Little Miami, &c, R. R. Dayton, Littledale's ( !ase, Liverpool Borough B'k v. Livingood v. Moyer, Livingston Co., v. 225 190 Turner, 92, 530, 612 335 v. Wootan, 189 Livingstone v. Van Ingen, 671 Llandaff .Market Co. v. Lyndon. 304 Lloyd, Exp., 519 v. Scott, 192 V. Taylor, 503 Lobb v. Stanley, 66 Lock v. Miller, 174 Locke v. New Orleans, 378 Lockhart v. Tin ley, 370 Logan v. Earl Courtown, 11 v. Logan, 390 v. Stale, 542, 700 Logwood v. Huntsville, 477 Loker v. Brookline, 280 Lol ley's Case, 234 London v. Wood, 246, 449 Cotton Co., Be, 47 Grand Jnnct. R. Co. v. Freeman, 624 London Jt. St. B'k v. London, 523, 556 Waterworks Co. v. Bailev, 161 & Br. R. Co. v.Watson, 663, 665 & S. E. R. Co. v. Flower, 599 Co. v. Limehouse 307 &c, R B'd, Long v. Culp, v. Grey, Longey v. Leach, Longlois v. Longlois, Looker v. Halcomb, Loomis v. Easton, Looney v. Hughes, Loper v. St. Louis, Lorant v. Scadding, Lord, Be, v. Kingsdown, v. Parker, v. Stedman, Louden v. Blythe, Loughridge v. Huntington, Louisiana v. Taylor, Louisville v. Commonwealth, v. Sav. B'k, &c, R. R. Co. v. Com monwealth, Love v. Love, Lovering v. Dawson, Low v. Marysville, v. Routledge, Lowe v. Fox, Lowell v. B. & L. Corp'n, Lower Chatham, In re, Lowther v. Bentinck, 560 53S 168 264, 265 218 191 609 706 623 388 488 174 702 154 545 281 58 758 116 763 605 143 119, 614 279 601 9 577 XXXVI11 TABLE OF CASES. Lowther v. Radnor, I, in .is v. Harper, v. McBlair, v. State, Co. v. Ry. Co., Lucraft v. Pridham, Ludington v. U. S., Ill, 397, Ludlow v. Johnston, Luke v. State, 298, Luling v. Racine, Lumberman's B'k v. Bearce, Lumpkin v. Muncv, Lunt v. L. & N. W. R. Co., Lusk v. Garrett, Lux v. Baggin, 5, Lynn, E I v ill v. Guadaloupe Co., Lybbe v. Hart, Lycoming Ins. Co. v. Woodworth, Lyddy v. Long Island City, 251, Lyde v. Barnard, 409, Lyme Regis v. Ilendley, Lyn v. Wyn, Lynch v. Kerns, Lynde v. Noble, Lyner v. State, Lynn v. B. A., Lyon v. Fishmongers' Co., 497, v. Fisk, Lyons v. Miller, 568 194 81 168 265 309 521 282 300 706 116 149 601 635 104 705 616 282 563 259 434 674 298 631 477 693 492 664 272 204 M. RIcAboy's App., McAden v. Jenkins, McAfee v. R. R. Co., 152, McAlister v. Jerman, v. Rochester (Bp.) McAllister v. Hoffman, McArthur v. Allen, v. Franklin, McBride's App., McCahan v. Hirst, McCalmont v. Rankin, Mc( lardle, Exp., Mc< arti-r v. Orph. Asyl., McCarthy v. R. R. Co., v. White, UcClinch v. Stargis, ■[<■< lloskey v. McConnell. McCluskey v. Cromwell, McConky v. Alameda Co., M. ' lonvill v. Jersey City, McCool v. Smith, 5, 6, McCormack v. R. R. Co., McCormick v. Alexander, v. Nichols, v. R. R. Co., 107 69, 494 281, 473, 495 191 632 189 526 693 104 411 530 557, 683 54, 280 234 476 756 325 7 413 31 105, 275, 280, 281 216 142 463 216, 245 McCuen v. State, 688 Mc( nil. mi v. McCrearv, 477 McCulloch's App., 110 v. State, 235, 756 McCullock v. State, 42 McCullough v. Mitchell, 192 v. Moss, 606 McCutcheon's App., 20 McDermott's App., 763 McDonald v. Hovey, 517 McDonegal v. Dougherty, 173 McDonel v. State, 81 McDonoiiiih v. Campbell, 281 McDonotiRh's El'n, Re, 609, 610, 611 McDougal v. Paterson, 4, 122, 418, 423, 424 McEwen v. Bucklev's Lessee, 384, 398 McFarlan v. State B'k, 298 McFarland v. Stone, 27, 44S M. Fate's App., 7 1, 285 McGaughey v. Brown, 23, 446 McGavish "v. State, 288 McGavock v. Pollack, 547 McGeehan v. Burke, 265, 363 McGivern v. Flemming, 484 McGlade's App., 475 McGlothlin v. Pollard, 370 McGregor v. Deal, &c, R. Co., 627 McGuire v. Van Pelt, 191 McGwigon v. R. R. Co., 246 Mcintosh v. Kilbourne, 363 Mclntyre v. Ingraham, 36, 100, 574, 585 Mclver v. Began, 13 McKean v. Delancy, 501 MeKee v. McKee, 513 McKeehan v. Com'th, 227 Mclvenna v. Edmundstone, 306 McKenzie v. Gihson, 216 v. State, 515 McKibben v. Lester, 266, 366, 398 McKibbin v. State, 184 McKinney v. Nav. Co., 216, 217 v. Reader, 634 McKoin v. Cooley, 212 McKune v. Wells, 618 McLain v. New York, 705, 708 McLane v. Leicht, 713 McLaughlin v. Hoover, 54, 292 v. Spengler, 279 v. State, 616 McLaurin v. Wilson, 14 McLean v. Nicoll, 482 McMahon v. R. R. Co., 54 McMaster v. Lomax, 41 v. State, 362, 367 McMechen v. Mayor, 685 MrMerby v. Morrison, 509 McMichael v. Skilton, 212, 215, 364, 6 1 2 McMicken v. Com'th, 500, 533, 535, 536 McMiilen v. Anderson, 604, 713 McMillen v. Guest, McNamara v. R. R. Co McNdinee v. U. R. McNeill, Cont. El'n of, Me.Nichol v. U. S., McPhail v. Gerry, 687 391, 531 227 219, 249, 726. 7 18 &c, Agency, 395 43, 77 Mrl'ln srson v. Leonard, McPike v. MeP.ke, McQuilkin v. Doe, McRae v. Holcomb, v. Wessell, McRaven v. Forbes, Me Reynolds v. Small house, Waslibume, 264, McRobert v McRoberts v. Winant. McVey v. McVey, v. Ry. Co., Mc William v. Adams, Mabee v. Crozier, Mabry v. Baxter, Mac, The, Macbeth v. Ashley, Mackay, Exp., Macnawhoc Plant'n v. Thompson, 683 Macungie Siv.B'k v. Hottenstein, 191 / oo Kil 259 7-12 30 + 446 525 556 619 308 108 54 638 392 138 201 195 Madden v. Fieldin ft , Maddox v. Graham, Madison Co. v. Burford, Ins. Co. v. Forsyth, &c, PL R'd Co. v. Rey nolds, Magdalen Coll. Case, Hosp'l v. Knotts, Magee v. Com'th, Magnet, The, Magruder v. Carroll, v. State, Mail lard v. Lawrence, Main Str., Re, Makin v. Watkinson, M aleverer v. Redshaw, Mai ins v. Freeman, Mallan v. May, Mallery v. Berry, M-dlett v. Simpson, Mallory v. Hiles, Ma Hoy v. Com'th, Maloney v. Bruce, Maltby v. R. R. Co., Manchester v. Lyons, Mandere v. Bousignore, Manhattan Ins. Inst'n, Re, Man is v. State, Mankel v. U. S., Manley v. St. Helen's Co., 607 259 44 645 411 Manly v. State, Manlove v. White, Mann v. AcAtee, v. Burt, Mann's A pp., 192, 230 359 620 344 45 300 101 312 599 656 359 4 138 591 701 299 486 235, 241 278 707 505 352 436 600 712, 714,719, 724 679, 680 376 131 370 P CASES. XXX IX Manning v. Kolin, 549 v. Phelps, 283 Mansell v. R., 504, 514 Manuel v. Manuel, 54 Maple Lake v. Wright Co., 4 5, 48, 285 Mardre v. Felton, 246 Margate Pier Co. v. Hannam , 610,623 Marqueze v. Caldwell, 517 Marianna Flora, The 242 Marine Mans. Co., He, 624 Mark v. State, 756 .Market Harborough v. Kattering, 86 Markham v. Stanford, 632 Marks v. Benjamin, 470 Marlar v. State, 218 Marple v. Myers, 186 Marsden v. Meadows, 195 v. Savile Foundry, 15 Marsh v. Higgins, 371', 384 v. Nelson, 168, 349, 487 Marshal v. R. R. Co., 222 Marshall v. Bown, 161 v. Exeter (Bp.), 500 v. Martin, 297 v. Nicholls, 215 v. Pitman, 206 v. Ulleswater Co., 674 v. Vultee, 142 v. Witte, 140 Marshall's Lessee v. Ford, 488 Marson v. Lund, 418 v. Ry. Co., 333 Marston v. Tryon, 456, 457 Martin, Exp., 593 v. Bldg. Ass'n, 193, 615 v. Gleason, 77 v. Hemming, 41, 43 v. Hunter's Lessee, 720 v. Robinson, 27, 448 v. State. 224, 230, 363 Martindale v. Martindale, 694 Martz, Re Cont. El'n of, 313 Mason v. Aird, 401 v. Boom Co., 255 v. Fearson, 427 v. Finch, 44, 363 v. Police Jury, 490 v. White, 274 Massey v. Burton, 198 v. Sladen, 543 Massy v. Johnson, 550 Masters, Re, 80 v. Child, 19S Mather v. Brokaw, 178 v. Brown, 614 v. Scott, 197 Matheson v. Hearin, 508 Mathews v. Shores, 505 Mathieson v. Harrod, 614 Matthew v. Zane, 701 Matthews, Exp., 515 xl TABLE OF CAsr.s. Matthews v. Caldwell, 336 v. Com'th, 90, 434 Matthewson v. Phoenix, &c, Foundry, 678 Mattison v. Bart, -I Mattox v. I [ightshue, 615 Maurice v. Marsden, 663 Mans v. Logansport, &c., It. R. Co., 35 Maxton v. Gheen, 194 Maxwell v. Collins, 115, 166 v. Evans, 120 v. Rives, -157 v. State, 27 v. Wessels, 616 May, Exp., 326 v. Grant, 8 v. G. W. R. Co., 471 Maybin v. Coulon, ,; ' : > Mayer v. Harding, 628 v. Prud'liotnme, 616 Mayhew v. Wardley, 33S, 469 Maynard v. B'k, 589 Mayor's Ct., Exp., 255 Mayor v. R. R. Co., 496 Mays v. King, 616 Maysville, &c, R. R. Co. v. Iler- rick, 111, 441 Maysville Tump. Co. v. How, 71, 497 Mead v. Bagnall, 260, 261 Means' App., 6(14 Mech., &c., B'k's App., 258 Ass'n v. Wilcox, 199 Sav. B'k v. Sallade, 119 Meckel's App., 419 Medbnry v. Watson, 62 Med ford v. Learned, '.>*>'■> Melizet's App., 380 Melody v. Reab, 174, 438, 443 Memphis v. Adams, 590 v. Laski, 117, 119 v. U. S., 701 Memmert v. McKeen, 109 Mendon v. Worcester, 44, 62 Meng v. Winkleman, 551 Mercer v. Watson, 384 Co., &c, Ins. Co. v. Stran- ahan, 491 Mercers v. Bowker, 449 Merchants' B'k v. Bliss, 457 v. Cook, 97 Merch. Exch. Nat. B'k v. Comm. Wareh. Co., 191 Merch. Ins. Co. v. Ritchie, Os.'l Merchant Taylors v. Truscott, 308 Meredith v. Chancey, 545 Merrill v. Gorharn, 282 Merrimac Min'g Co. v. Levy, 509, 668 Mersey Docks v. Lucas, 268, 309 Co. v.Cameron, 225, 226 Merwin v. Ballard, 363, 392 Meshke v. Van Doren, 705 Messersmith v. B'k, 664 Metrop. Asyl. Distr. v. Hill, 598 B'k v. Hit/., 370 B'd v. Steed, 435 v. Metr. By. Co., 598 of Health v. Schma- des, 261, 490, 702 Mette v. Mette, 234 Meyer v. McCabe, 245 v. West. Car Co., 75 Mew, Re, 40 Mewster v. Spaulding, 222 Mich., &c, R. R. Co. v. Slack, 235 Micklewaite, Re, 478 Midland R. Co. v. Ambergate R. Co., 511 v. Pye, 9, 362, 374 Middleton v. Chichester, 356 v. Crofts, 320 v. Middleton, 21 v. R. R. Co., 694 Mignault v. Malo, 504 Migotti v. Colville, 547 Miles v. Bough, 141 v. State, 319 .Mil ford v. Orono, 417 Milne v. Huber, 680, 692 Mill v. Hawker, 538 Millard v. It. R. Co., 174 Miller's Case, 6S1 Miller v. Chance, 496 v. Childress, 8, 475 v. Com'th, 116 v. Edwards, 263 v. Ford, 446 v. Harbert, 202 v. Kirkpatrick, 556 v. Marigny, 509 v. Miller, 556 v. Moore, 378 v. Ruble, 615 v. Salomons, 7, 8, 350, 399, 443 v. Shotwell, 628 v. State, 183, 228, 755, 756 v. Wentworth, 615 Millerstown v. Frederick, 739 Mills v. B'ld'g Ass'n, 193 v. Scott, 334, 588 v. Wilkins, 73 Milton v. Faversham, 464 v. Haden, 644 Milwee v. Milwee, 195 Minet v. Leman, 152 Minis v. U. S., 254 Minor v. L. & N. W. R. Co., 123, 564 v. Mech. B'k, 400, 427 Mirehouse v. Rennell, 8 Mirtin v. Attwood, 680 Miscli v. Mayhew, 547 Mitchell v. Brown, 317, 320, 322 v. Cowgill, 404 TABLE OF CASES. xli Mitchell v. Doggett, 685 v. Duncan, 54, 294, 315, 319, 430 v. McCullough, 192 v. Mims, 186 v. Mitchell, 143 v. Oakley, 446 v. Smith, 642, 644 v. Tibbets, 234 Mobbs v. Vantlenbrande, 482 Mobile v. Eslava, 114 &c, R. R. Co. v. Malone, 51 v. State, 307 Sav. B'k v. Patty, 433 Moers v. Reading, 386, 712, 724, 728, 729, 739, 743, 750 Moffatt v. Montgomery, 628 Mohan v. Butler, 335 Mollwo v. Ct. of Wards, 522 Molton v. Camroux, 638 Monck v. Hilton, 95 Mongeon v. People, 239, 275, 317, 321 Moninger v. Ritner, 380 Monkleigh, Exp., 605 Monks v. Jackson, 140, 141 Monmouth v. Leeds, 428 Monongahela Nav. Co. v. Coons, 247, 567 Monroe v. Luzerne Co., 348 Montague v. Smith, 528 v. State, 704, 712 Montclair v. Ramsdale, 29 Montgomery v. Plank Road Co., 707 v. State, 681 Montoursville Overs'rs v. Fairfield Overs'rs, ' 615 Montreal v. Stevens, 489 Montrose Peerage, 500 Montville v. Houghton, 521 Moody v. Fleming, 228 v. State, 44 v. Stephenson, 436 Moon v. Church, 602 v. Durden, 369 Moore v. Cornell, 177 v. Creamer, 328 v. Fields, 594 v. Hammond, 491 v. Houston, 543, 693 v. Mausert, 265, 266, 366, 39S v. Moss, 259 v. Settle, 539 v. Smith, 230 v. Transp. Co., 129 v. Trippe, 189 v. Vance, 259 Moores v. Bank, 509 Moran v. Comm'rs, 495 Morant v. Taylor, 74 Morav. Sem'y v. Atwood, 334 Morden v. Porter, 181 Morehead v. B'k, 466 Morgan v. Bolles, l(j9 v. Brown, 338 v. Craw-shay, 503, 555 v. Curtenius, 509 v. Edwards, 616, 628, 629, 638 v. Hamlet, 23 v. Metrop. R. Co., 495 v. Palmer, 404 v. Parry, 620, 621 v. Perry, 363 v. Thorne, 681, 684 Morish v. Harris, 571, 575 Morisse v. Brit. B'k, 264, 430 Morlot v. Lawrence, 259 Mnrrall v. Sutton, 96, 251 Morrell v. Fickle, 262 Morris v. Balderston, 474 v. Del., &c, Canal, 282 v. Lindsley, 178 v. Mellin, 513, 529 v. People, 185, 188 v. Ry. Co., 244 v. Wilson, 482 &c, Co. v. State, 114, 539 Morrison v. Bachert, 711, 719, 735, 741 v. Barksdale, 259, 501 v. Dorsey, 357 v. Gen'l St. Nav. Co., 309 v. Grover, 161 v. McNeil, 33 v. Rice, 380 v. Thistle, 592 v. Underwood, 635 Receiver, &c, v. Dorsey, 664 Morritt v. N. E. R. Co., 18 Morrow v. Brady, 124 Mortimer v. Pritchard, 163 Morton v. Copeland, 139 v. Palmer, 125 v. Valentine, 389 Mosby v. Ins. Co., 265 Mosdel v. Middleton, 656 Moseley v. Tift, 490 Moser v. White, 396 Mott v. Pa. R. R. Co., 763 Motteram v. E. C. R. Co., 437 Mouflet v. Cole, 553 Mounsey v. Iinray, 41, 564 Mount v. Kesterson, 615 v. Taylor, 680 Mountain City, &c, Ass'n v. Kearns, 20 Mountcashel v. O'Neil, 140 Mountjoy v. Wood, 227 Mouys v. Leake, 656 Movers v. Bunker, 534 Moyce v. Newington, 159 Moyle v. Jenkins, 45 Mover v. Gross, 41, 61, 284 v. Kirby, 216 xlii TABLE OF CASES. Mover v. Pa. Slate Co., 486 Mt. Holly Paper Co.'s App., 54, 7 1 Much Waltham v. Peram, \'.<^ Muir v. I lore, 292 v. Ke.-iv, 561 Muirhead, Exp., 102 Muggridge, Re, ' 20 Mulford v. Clewell, 518 Mulkern v. Lord, 161 Mulkey v. State, 682 Mullen v. Erie, 125, 497 v. People, 292, 317 Mulligan v. Cavanagh, Mil Hi ii v. McCreary, Mulliner v. Midi. Ry. Co., Mullins v. Collins, Mullock v. Souder, Mulvey v. State, Mundy v. Rutland, Munic. Build. Soc'y v. Kent, Municipality No. 2 v. Morgan, Monro v. Butt, Munshower v. Patton, Murphy, Re, v. Chase, Murray v. 1 laker, v. Charming Betsy, v. E. i. Co., v. Gibson, v. Kcvi's, v. R. R. Co., v. Thorniley, Muser v. Miller, Musgrave v. Brady, Musgrove v. R- R. Co. Musselman's Est., Myer v. West. Car Co., Myers v. Reed, v. Veitch, My rick v. Hasey, N. 174 598 186 368 481 31 8 88 349 227 283, 515 477 106 24o 531 362 29, 30, 413, 528 348 56 169 476 681, 682 147 65 733 529 515 N. Lond. R. R. Co. v. Metr. B'd, 497 N. Y. Fire Dep't v. Buhler, 198 N. Y. Prot. Episc. Publ. Sch., Matter of, 662 N. Y., &c, R. R. Co. v. Kip, 475 v. Super'rs, 280, 282, 298 v. Van Horn, 246 Nash v. Mitchell, 592 v. White's B'k, 687 Nat. B'k v. Williams, 551 Nat. Merc. B'k, Exp., 28, 465 Nat. Mut. Aid Soc'y v. Lupoid, 633 Naught v. O'Neil, 6*5 Nave v. Nave, 427 Naylor v. Field, 281,378,596 Naz. Lit., &C., Inst. v. Common- wealth, 59, 259" Nazer v. Wade, 25 Nazro v. Merc, &c., Co., 76 Nga Hoong v. B., 119,240 Neal v. Crew, 551 v. Moultrie, 488 Ne lie's App., 16 I Neale v. Ft/., 545 Neath & B. K. Co., Re, 424 Need ham v. Thresher, 2, 2 Neeld's Road, 54, 56, 349 Neenan v. Smith, 325 Nell's App., 363 Nellis v. Muwson, 761 Nelson v. Denison, 648 v. La Porte, 591 Neshitt v. Lushington, Nethersoll v. Indig. Blind, 602 Nettles v. Slate, 461 Nettleson v. Burrell, 21 Nevin's App., 1:> : '> Nevling v. Commonwealth, 181 Newberry B'k v. R. R. Co., 707 New Brighton R. R. Co.'s App., 71 Newhurgh, &c, Turnp. Co. v. Miller, 427 Newbury B'k v. Sinclair, 191 Newby v. Colt's Arms Co., 124 Newcastle Corp'n, 117 v. Atty.-Gen., 500 v. Morris, 520 &c, R. R. Co. v. Mc- Chesney, 172 Newell v. People, 7, 714 v. Wheeler, 174 New Engl., &c, Co. v. Montgom- ery Co., 346 New Engl. Hosp'l v. Boston, 125 New Haven v. Whitney, 277 Newington v. Cottingham, 660 New Lond., &c, R. R. Co. v. R. R. Co., 215, 259, 269 Newman, Exp., 42 v. Hardwicke, 5 16 New Orleans v. Poutz, 508 v. St. Pomes, 142 &c., R. P. Co. v. Hemphill, 400 Newport, The, 187 Bridge, Re, 419 Trustees Exp., 588 New Portland v. New Vineyard, 706 Newsom v. Greenwood, 6S6 Newton v. Boodle, 24 v. Cowie, 613 v. Ellis, 138,403,569 v. Young, 346 Man'g Co. v. White, 181 New York, Re Mayor, &c , of, 134 v. Lord, 126, 137, 144 TABLE OF CASES. xliii New York v. Sands, 591, 592 v. Squire, 735 &c, R. R. Co. v. R. R. Co., 225, 558 Niboyet v. Niboyet, 234 Nicholl v. Allen, 422, 599 Nicholas v. Phelps, 331 Nichols v. Bertram, 307 v. Balliday, 352, 353 v. Marsland, 627 v. Squire, v. Wells, v. Wills, Nicholson v. Ellis, v. Fields, 453, 456, 471 v. Hood, v. Mobile, &c, R. R. Co., 65, 77, 89 Nicolls v. McDonald, 384 Niemever v. Wright, 557, 648, 650, 655 Commonwealth, 318 45 81 330 478 139 227 191 Nimmo v Nisbett v. Walker, Nitrophosph. Co. v. Katherine Dock Co., Nix v. Bell, Nixon v. Phillips, v. Piffet, Noble v. Durell, v. Gadban, v. State, v. The St. Anthony, Noel v. Ewing, v. Kinney, Noe v. People, Noll v. Slate, Nolly v. Buck, Norih. Centr. R. R. Co. v. Com'th, Ry. Co.'s App., Norcum v. Lum, Norcutt v. Dodd, 120 Norris v. Barnes, v. Carriugton, v. Crocker, 271, 31S, 681, 682 v. State, North v. Phillips, Bridge w. B'k v. Copeland, Canal Str. Road, Pa. R. R. Co. v. Davis, R. R. Co. v. R. R. Co., S. R. Co. v. Dale, Sir., Whitehall Tp., Be, Northrop v. Cooper, North w. Fert. Co. v. Hvde Park, Norton v. L. & N. W. R. Co., v. Mackie, v. Simmes, Norwegian Str., Be, 427, 616, 618 Noseworthy v. Buckland, 614 Nourse v. Pope, 644 674 641 9,292 292 507 371 55 235 370 647 136 186 7 101 733 446 148 53 628 194 373 683 126 225 600 683 545 548 116 492 2 15 656 Novellu v. Sudlow, Nowell v. Worcester, Nudd v. Barnett, Nugent v. Smith, v. State, Nunally v. White, Nunes v. AVellisch, Nunn v. Fabian, Nusser v. Com'th, Nutter v. Accrington L. B'd, 668 626 194 627 747 522 695 445 311, 320 511 R. Co. v. Wheeler, Coal Co., Lim., v. 358, 352, 513, v. Sulli- O. & M. R Oak Ridge Rogers, Oakland v. Carpentier, Tp. v. Martin, Oakley v. Aspinwall, Oaks v. Rogers, v. Turquand, Oates v. Nat'l B'k, O'Brien v. State, O'Byrnes v. State. Occident B. & L. Ass'n van, O'Connor, Matter of, v. Towns, Odell, Exp., Odiorne v. Quimby, Offutt v. Dangler, O'Flaherty v. McDowell, Ogden v. Benas, v. Saunders, v. Strong, v. Witherspoon, Ogilvy v. Foljambe, O'Hanlon v. Myers, O'Hare v. B'k, Ohio v. Covington, v. Stunt, &c, R. R. Co., v. Kasson, Ohrby v. Ryde Com'rs, Olcott v. Robinson, v. Tioga R. R. Co., Oldfield v. D..dd, Oleson v. R. R. Co., 115, Olive Cem'y Co. v. Philad'a, 134, Oliver's App., Oliver v. N. E. R. Co., v. Wash'n Mills, O'Loghlin, Be, Omaha, &c, R. R. Co. v. Menk, O'Maley v. Reese, O'Neal v. Robinson, 51, v. Rupp, O'Neil v. Cleveland, Ong v. Sumner, Opinion of Justices (7 Mass.), 5, 95, (122 Mass.), 34, 8,44 190, 357, 475, 222 117 42 661 738 139 359 401 213 515 492 443 548 195 550 178 276 189 714 74 259 66 699 654 351 476 191 186 545 117 415 239 556 24 600 756 327 217 189 252 635 191 279 335 729 xliv TABLE OF CASES. Opinion of Justices (130 Mass.), (41 N. II.. 15 N.H.),752,' .; Pick.), (22 Pick.), 29, Oppenheimer v. Morrell, Oram v. Brearey, 213, < >rme's < !ase, < (rcutt's App., Orcutt v. Berrett, Ordway v. Centr. Nat. B'k, < >'Rear v. Kiger, ( Oregon Bulletin, &c, Co., Re., O'Reilly v. Bard, v. Thompson, Ornamental Wood Work Co. v. Brown, Osborne v. Everitt, 281, Osgood v. Breed, ( )'Shanassy v. Joachim, ( teter v. Rabeneau, ( )swald v. Berwick, Otoe Co. v. Baldwin, Ottawa v. La Salle, 150, Ouachita Co. v. Tufto, Overall v. Bezeau, Overfield v. Button, Overseers v. Kline, v. Smith, 211, 212, 213, Owens v. Woosman, ■ 294, Oxford v. Wildgoose, P., A. & M. Pass. Ry. Co.'s App., 54 P., F. W. & C. Ry. Co. v. Gille- land, 598, 601 Pa. Co. v. Dunlap, 520 &e., Co., v. Stoughton, 149, 215 Coal Co. v. Costello, 131 R. R. Co.'s App, 224, 225 495 741 126 7-11 10, 103 42, 75 539 Page v. Pierce, 328, 543 247 Paget v. Foley, 291 753 Paine v. Spratley, 490 501 1 'a inter v. Liverpool Gas Co. » 604 352 Palairet's App, 713 487 v. Snyder, 475 215 Palliser v. Gurney, 17S 56 Pallisler v. Gravesend, 497, 659 242 Palmer's < 'ase, 54 141 Palmer, Re, 350 456 v. Conly, 338, 339 645 v. 1 licks, 166 116 v. Lacock, 594 4 sr, v. Metrop. R. Co, 635 445 v. Mining Co., 664 v. Thatcher, 11 8 v. York Bank, 457 285 Palms v. Shawano Co., 246 436 155 Pana v. Bowler, 264 loo Pangborn v. Westlake, 517 652 175 Pancoast v. Addison, 106 658 v. Ruflin, 142 394 Pancras v. Batterbury, 663 298 Paramore v. Taylor, 152 229 Parbury, Exp., 357 130 Pardo v. Bingham. 385 531 Parent v. Callarand, 202 5S8 Paris v. Hiram, 543 215 v. Mason, 217 321 Parker, Re, 645 55 v. G. W. R, 494 v. Hubbard, 281 v. Taswell, 530 Parkes v. Prescott, 187 Park Iron Gate Co. v. Coates J 635, Co. v. Canal Com'rs, v. Duncan, v. Eby, v. Lippincott, v. Pittsburgh, v. Riblet, &c, R. R. Co. v. Leuffer, 130, 131 Pacific, The, 96 v. Seifert, 22, 452, 507 & Atl. Tel. Co. v. Com- monwealth, 688, 693 Packard v. Richardson, 500, 501, 504, 505 Packer v. Noble, 1*>9 v. R. R. Co, 252, 495 Padstow, &c, Ass'n, Re, 538, 646 Page, Re, 203 v. Allen, 557, 714, 738, 751 v. Bennett, 378 636, 638 Parkins v. Preist, 464 Parkinson v. State, 4, 29, 45, 101, 106, 109, 453, 466, 701 Parks v. State, 227 v. Watts, 213 Parlement Beige, The, 240 Parmelee v. Rogers, 189 Parmilee v. McNutt, 227 Parrott v. Stevens, 259 Parry v. Croydon Gas Co., 311, 322, 478 Parsons v. Bethnal Green, v. Chamberlain, v. Payne, v. St. Matthews, v. Winslow, Partington, Exp., v. Atty.-Gen. Parton v. Williams, Partridge v. Naylor, v. Williams, Patten v. Rhymer, Patent Bread Co, Re, Patteson v. Banks, Patterson v. Lane, 674 543 363 186 149 257 478 403 339, 341, 669 192 337, S45 624 82 664 TABLE OF CASES. xlv Patterson v. Patterson, v. Tatum, v. Winn, Paull v. Lewis, Paxton v. Popham, Payne, Exp., v. Connor, v. Treadwell, Peacock v. P., Pearce v. Atvvood, v. Bank, Pearcy v. Henley, Pearson v. Bradley, v.Hull, v. Kingston, v. Lovejoy, v. Yewdall, Pease v. Bridge, v. Chaytor, v. Norwood, v. Peck, v. Whitney, Peate v. Dicken, Peerless, Be, Peet v. Nadle, Peggy, The, Peirce v. U. S., Peik v. Ey. Co., Pelham v. Messenger, v. Pickersgill, Pellew v. Wonford, Pender v. Lushington, Pendleton v. Barton, Penn v. Bornman, 190 Pennington v. Coxe, Pennock v. Dialogue, Pennoyer v. Neff, Penny v. S. E. R. Co., Pensacola v. Witrich, People v. Admire, v. Albertson, v. Allen, v. Assessors (Brookly v. Barr, v. Batchelor, v. Beveridge, v. Blodgett, v. B'd of Educ'n, v. Bogart, v. Borges, r. Briggs, v. Brooklyn, v. Brooks, v. Burns, v. Burt, v. Butler, v. Csesar, v. Callen, v. Carr, v. Chautauqua Co., V. Chapin, 102 273 54 507 647 215, 300 275 706 551, 638 7,54 307, 375 202 546 462 575 143 604, 713 615 550 551 504, 507 259, 311 568 152 252 382 506 509 473 663 546 201 474 , 357, 360 44 517 604, 713 214 616 351 508 619 n), 678 281, 282 606 428 727 247 185 631 9 134, 427 188 29, 30 269 542 234 724 271 727 593 People v. v. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. Church, Clark, Columbia Co., Cook, Cotteral, Can. Comm'rs, Crayeroft, Dana, 21, 88, 95, 400, 677, 678, 740, Durick, Davis, Denning, Elmore, Fancher, Fay, Fitzsimmons, Fleming, Gilbert, Gill, Green, Greer, Grippen, Hatch, Hayden, Herkimer, Hill, Hobson, Hoffman, Hopt, Hulse, Ins. Co., Jackson, Jaehne, Johnson, Kelly, King, Kobb, Lake Co., La Salle, Lawrence, Livingstone, 379, 393, 623, 681, 263, 29, 338, 259, 44, 262, 311, Lytle, Mahaney, May, McCreery, McLeod, Miner, Molyneux, Montg'y Superv'rs, Moore, Mortimer, Murray, New York, 259, Norton, N. Y., &c, R. R. Co., N. Y. Tax, &c, Com'rs, Onondaga, Plank Road Co., Police B'd, Potter. 726, 19 701 362 618 137 335 216 166, 523 275 705 :.:;i 445 716 755 621 141 227 689 743 35 259 752 9 703 411 682 436 703 458 33 59 520 702 263 411 339 619 743 595 394, 692 270 520 117 617 233 520 89 679 396 392 621 543 185 570 541 435 713 681 728 :lvi TABLE OF CASES. People v. R. R. Co. (28 CaU, 281 v. R. R. Co. (35Cal.), 247 v. I teed, 488 v. Richards, 569 v. Shephard, 42 v. Sheriff; 547,549 v. Shoonmaker, 7, 37, 7 1. L22 v. Sloan, 688 v. Soto, 171 v. Spicer, 382 v. Squire, 715 v. St. Lawrence Co., 280, 282 v. Starne, 43, 756 v. State, 525 v. State Auditors, 369 Superv'rs (11 Abb.Pr.), 427 Superv'rs (63 Barb.), 367, 381, 389 Superv'rs : 1-1 Midi I, 167 Superv'rs (51 N. Y.), 427 Superv'rs, Erie, 11 i Si 1 1 u rv'is, Essex, 362 Superv'rs, Livingston, 417 Superv'rs, Montgomery, 265, 266, 398 Superv'rs, Otsi 417 Sweetser, 397, 398,412, 414 v. V. v. v. V. V. V. V. V. V. V. V. V. V. V. Taylor, Til) bets, Tindale, Tiphaine, Tisdale, v. Tyler, v. Utica Ins. Co., 387, 108 389 31G 263 681 680 78,86, 116, 400, 442 211, 212, 662 280, 297 181 713, 715 v. Vahderbilt, v. Van Nort, v. Walker, v. Wallace, v. Wayne Circ. Judge, 266, 366 v. Wesl Chester, 306, 712 Western, 54, 400 Willard, 621 Williams, 100,487,596 Wintermute, 678 Worthington, 100 Wright, 704, 725, 743, 751 v. v. V. V. V. v. v. Youngs, 16S Peoples' Fi re Ins. Co.v. Hartshorne, 363 294 494 703, 707 '189 189 2i <2 56, 174 453 82 556 557 602 Peppin v. ( looper, Perchard v. Heywood, Perdu a ris v. Bridge Co., Perkins v. Eaton, V. Hyde, v. Morse, v. Perkins, v. Severn, v. Sewell, V. Tbornburgh, Perrine v. Canal Co., Perring v. Trail, Perry v. Mitchell, 593 " v. R R. Co., 707 v. Skinner, 350, 375, 406 v. Wilson, 336 Co. v. Jefferson Co., 351 Peru, &c., R. R. Co. v. Bradshaw, 259 Peshall v. Layton, 345 Peters v. ( londron, 25 v. Cowie, 156 v. Massey, 371 v. Sheehan, 638 Peterson v. Walsh, 235 Peto v. West Ham., 554 Petrel Guano Co. v. Jarnette, 645, 692 Petlamberdass v. Thacokorseydass, 369 1 Vt tit v. Fretz, 99, 168 Peyton v. Mosely, 260 Pharmaceut. Soc'y v. London Sup- ply Ass' n, 110,555 Phelps v. Hawley, 427 v. Wood, 516, 590 Philadelphia v. Com'th, 756 v. Davis, 301. 451, 466, 474, 512, 522, 540 v. Devine, 141 V. Edwards, 332 v. Pass. Ry. Co., 200, 349, 351, 353, 407 v. Scott, 604, 713 v.Wright, 216,455 & Erie R. R. Co. v. Catawissa R. R. Co., 101,107,500, 510 597 Philbrook v. U. S., 54 Phillipi v. Bowen, 461 Phillips v. Clark, 347 v. Com'th, 661 v. Hopwood, 678 v. Hunter, 241 v. Saunders, 156 v. Pope, 476 Charity, Re, 604 Philpott v. St. George's Hosp'l, 193, 196, 201 Philpotts v. Philpotts, 161, 359 Philps v. Winchcomb, 139 Phipps V. Kelly, 212 Phipson v. Harvett, 275, 313 Phoenix, &c, Co. v. Hazen, 577 Bess'r Co., Exp., 371,392 Pickard v. Marriage, 195 Pickering v. Cease, 194 v. Ilfracombe R. Co., 656 v. James, 601, 668 v. Marsh, Pickett v. B'k, v. Boyd, Pickup v. Wharton, Pierce's App , 191, 446 390 388 20, 98 TABLE OF CASES. XlVIl Pierce's Case, Pierce v. Bryant, v. Com'th, v. Cushing, v. Hopper, v. Kimball, Pierpoint v. Harrisville, Pierpont v. Crouch, Pierson v. Baud, Piggott v. Rush, Pike v. Hoare, v. Jenkins, v. Ni.cholas, Co. v. Rowland, 721, 756, 16, 453, 491, 606, 720, 272, 388, 219, Pilkington v. Cooke, Pillow v. Gaines, Pim v. Nicholson, Pinckard v. State, Pingree v. Snell, Pinhorn v. Sonster, Pinkerton v. Easton, Pinkham v. Dorothy, Pioneer, The, Pitman v. Flint. v. Maddox, Pitt v. Shew, Pitte v. Shipley, Pittsburgh v. Coursin, v. Grier, v. Kalchthaler, v. R. R. Co., v. Walter, &c, R. R. Co. v. Com- monwealth, 101, 199, &c, R. R. Co. v. Meth- ven, Ac, R. R. Co. v. S. W. Pa. Ry. Co., Planche" v. Braham, Planters', &c, B'k v. Andrews, B'k v. State, Plasterers' Co. v. Parish Clerks' Co. Piatt v. Lock, v. Sheriffs of London, Plowman v. Williams, 544, Plumb v. Sawyer, Plummer v. Plummer, v. People, Plumstead B'd v. Spackman, Pochin v. Duncombe, Poe v. State, Poertner v. Russel, Poland, Re, Pollard, Re, Pond v. Maddox, v. Negus, Pontchartrain Co. v. Lafayette, Poock v. Laf. B. A., Pool v. State, Poor v. Considine, 451 486 758 551 218 705 217 276 703 444 8 466 430 719, 745 288 29 756 682 537 393 18 475 650 353 519 439 517 620 600 23 225 616 217 458 336 330 116 292 , 8 443 460 545 363 505 74 343 502 262, 320, 537 517 120 603 433 619 114 411 149 12, 19, 92, 434 Poor Dir's v. R. R. Co., 678 t. School Dir's, 226, 478 Distr. v. Poor Distr., 142 Pope v. Tearle, 536 Porter v. Hildebrand, 153 Porterfield v. Clark, 509 Portland B'k v. Maine B'k, 548 Portsmouth Livery Co. v. Watson, 706, 707 Portwardens v. Cartwright, Post v. Dart, Postmaster-Gen., Exp., v. Early, Potter v. Duffield, v. Nat. B'k, Potts v. Staeger, Pound v. Plnmst. B'd, Poulsum v. Thirst, Poulters' Co. v. Phillips, Powdrell v. Jones, Powell v. Boraston, v. Waters, Powers, In re, v. Barney, t. Shepard, v. Southgate, v. Wright, Powlter's Case, Pratt v. Amer. Bell Tel. Co., v. Boston Street Comm'rs, v. R. R. Co., v. Short, v. Stage Co., Preece v. Pulley, Prentice v. London, Prentiss v. Barton, Pretty v. Solly, Price's App., Price v. Hopkin, v. White, v. Whitman, Prices of Wine, Prince v. U. S., 474 191 224, 230 525, 527 483 742 328 511 138 344 46 571 192 8 259, 481 54, 264 141 381, 481 73 517 65, 515 282 650, 654 616 493 161 222 560 21 702 705 752 519 362, 374 George Co. v. Laurel, 271, 273, 589 Pringle v. Carter, 220 Prior v. People, 550 Pritchard v. Arbouin, 197 v. Spencer, 363 Pritchett v. Mitchell, 191 Prell v. McDonald, 706 Proctor v. Manwaring, 284, 456, 470 v. R. R. Co., 127 Prot. Epis. Sch., Re, 370 Protector, The, 486 Protection Life Ins. Co. v. Palmer, 549 Provid. Co. v. Chase, 616 Pruden v. Grant Co., 216 Pryor v. Ryburn, 23 Publ. Sch. Trustees v. Trenton, 275 xlviii TABLE OF CASES. Pne v. Hetzel), Pugh v. Duke of Leeds, l'ulaski Co. v. Downer, Purcell v. Goshorn, v. X. Y. L. Ins. Co., Purdv v. People, v. Smith, Puryear v. Puryear, Putnam v. Johnson, v. Longley, v. State, Q 411 548 271 384 273, 556 188 512 541 730 7, 19 227 362, 367 105 165 168 725 370 378 497 582 144 Quackenbush v. Danks, Quartz Hill Co., Be, Queenan v. Palmer, Quick v. Miller, v. White Water Twp., 252, Quigley v. Gorham, 4, 101, Qui Iter v. Mapleson, Quinton v. Bristol, Quinn v. Electr. L. Co., v. Fid. Ben. Ass'n, 135, 142, R. E. (Rex or Regina) v. Abbott, 215, 313 v. Abp. of Armagh, 230 v. Abp. of York, 227 v. Adamson, 417, 425, 430, 431 v. Ad lard, 121 v. Aiken, 636 v. Aldborough, 606 v. All Saints, 493 v. Allday, 596 v. Allen, 226, 540, 628 v. Ampthill, 629 v. Anderson, 240 v. Annandale, 198 v. Arkwright, 618 v. Arinvtage, 16, 630 v. Ashburton, 24 v. Astley, 198 v. Aston, 543, 630 v. Athos, 83, 86 v. Atkins, 661 v. Audley, 206 v. Bacon, 470 v. Badger 162 v. Bailey, 700 v. Baines, 218, 266 v. Banbury, 6 v. Barbara, 10 v. Barlow, 416, 424, 431 v. Barnett, 14 v. Barrett, 636 v. Bartlett, 593 v. Bateman, 79, 86 K Beadle, 226 Beecham, 470 Bellamy, 13 Belton, 489,630 Berenger, 524 Berkeley, 226 i Jcks, ' 543 Berry, 636 Bertrand, 636, 637 Beverley Gas Co., 1 16 Bewdley, 504 Bing, 86 Birmingham, 105, 198 Bishop, 184 Biswell, 467 Bjomsen, 240 Bleasdale, 339 Bloxham, 637 Blues, 489 Bond, 616 Boteler, 431 Boultbee, 226 Boulton, _ 470 Brackenridge, 327 Bradford, 468 Bradlaugh, 104 Bradshaw, 326 Brice, 468 Bridgewater, 155, 200 Bridgnorth, 200 Bridgnorth Guards, 120 Brighton, 105 Brist. Dock Co., 585, 673 Brooks, 102 Brown, 461, 561 Buchanan, 665 Buck, 662 Bucks, 17, 277 Burdett, 186 Burnaby, 181, 182 Burslem B'd, 218 Butler, 155 Cambridge, 214, 416, 430, 431, 603, 606 Cambridgeshire JJ., 510 Canterbury (Abp.), 501, 502, 604 Carew, 139 Carlile, 315 Carnarvon, 616, 636 Carpenter, 346 Carr, 240 Castro, 4 Cator, 317 Champneys, 298 Chantrell, 16, 508, 602 Chapman, 207 Charles, 122 ( lharlesworth, 561 Charrette, 471 Cheltenham, 152, 214 ( Jheshire Lines Com., 603 TABLE OF CASES. xlix R. v. Chichester (Bp.), 329, 421 R. v. Faversham, 658 v. Chorlton Union, 618 v. Fawcett, 417, 425 v. Christchurch, 377 v. Fell, 216 v. Clarke, 338, 339, 340 v. Finnis, 326, 431 v. Clear, 662 v. Fletcher, Ii3f! v. Cleworth, 568 v. Forbes, 184 v. Clifton, 493 v. Forncett St. Mary, 53 v. Coaks, 155 v. Forrest, 606 V. Cohen, 183 v. Fretwell, 469 v. Collingwood, 136 v. Frost, 527 v. Consistory Court, 480 v. Fylingdales, 152 v. Cooke, 554 v. Ganz, 233 v. Corfe Mullen, 623 v. Gardner, L16 v. Cornforth, 105, 467 v. Gibbons, 184 v. Cottle, 464 v. Giles, 544 v. Cotton, 218 v. Gillyard, 214 v. Cousins, 492 v. Glamorganshire, 207 v. Cox, 439 v. Glover, 469 v. Crawshaw, 665 v. Gould, 665 v. Cridland, 181 v. Graves, 329 v. Croke, 327, 494 v. Gravesend, 641, 642 v. Crowan, 393 v. Green, 658 v. Crump, 544 v. Greene, 523 v. Cumberland, 226, 425 v. Greenland, 294 v. Cumberworth, 494 v. Gregory, 666 v. Cunningham, 555 v. Grim wade, 468 v. Cntbush, 492, 504 v. Gt. Bolton, 534, 536 v. Damarell, 18 v. Gt. Farringdon, 148 v. Darlington School, 492, 604 v. Gt. Marlow, 606 v. Davis, 18, 28, 316, 453, 465, 500, v. Gt, Salkeld, 19S 661, 665 v. Gutch, 186, is; v. Dean, 339, 341 v. Gwenop. 79, 86 v. De Mattos, 240 v. H. & S. R. Co., 663 v. Denlon, 681 v. Hadaeld, 468 v. Derby, 416 v. Haines, 467 v. Derbyshire, 14, 214 v.Hale, 181 v. Depardo, 240 v. Halifax, 198 v. Devon, 328 v. Hall, 94 v. Dickenson, 571 v. Hall Dock Co., 484 v. Dixon, 183, 186 v. Halloway, 333 v. Dorsetshire, 328 v. Hammond, 123 v. Doubleday, 575 v. Hamstall Redware, 606 v. Dove, 264 v. Hanson, 286 v. Dowling, 408, 442 v. Hants, 104, 329 v. Downes, 286 v. Harden, 268 v. D'Oyley, 157 v. Hardy, 468 v. Dunne, 102 v. Harrald, 156 v. Dursley, 346 v. Harris, 565 v. E. C. R. Co., 327 v. Harrowgate, 225 v. Eastbourne, 244 v. Harvey, 180, 454 v. Edmundson, 576 v. Hastings, 417, 423 v. Edwards, 102, 333 v. Haughton, 523, 525 v. Ely, 600 v. Havering-atte-Bower, 417 v. Epsom, 91 v. Helton, 105 v. Essex, 329, 503 v. Hennah, 461 v. Everdon, 410 v. Herford, 500 v. Everett, 282, 283 v. Hermann, 467 v. Eye, 423, 427 v. Hertford College, 41 v. Eyre, 581 v. Hey wood, 588 v. Farewell, 226 V. Hicklin, 187 v. Farrow, 468 v. Higgins, 18- TABU': OK «' \-l-X E. v. Higginaon, 326 R. v. Luffe, 136 v. 1 1 illman, v. Lundie, 658 v. 1 tipswell, 361, 642 v. Mc< 'aim, 226 v. Hodges, :,7o v. Mabe, 10, 15 v. Hodnett, 6,8, 105 453, 466, 467 V. .Mackenzie, 699 V. II Ogg, 507 V. Maidenhead, 346 v. 1 [olbrook, 187 V. Mainwaring, 13 v. Horton, 184 V. Mallinson, :,.,! v. 1 [oseason, 320 V. Manchester, 86, 101, 225 v. 1 tow, 155, 157 V. Manch. Waterworks Co 57 1 v. Unbe, 338 V. Manktelow, 467 v. Hughes, 198, 604, 638 V. Margram, 14 v. Hull, 596 v. Marriot, 662 v. llulme, 405, 530 V. Martin, 338, 461 v. Huntingdonshire, H, 139 V. Mashiter, 121, v. 1 [yde, 214 V. Masterton, 12S v. Ingall, 612, 618, 620 V. Mattersey, L98 v. Ingham, 529 V. Matthews, 339 v. [ngram, 619 V. Maude, 105, 467 v. Ipstone, 103 V. Maulden, 346 v. Ipswich Union, V. Mawgan, 681 v. James, 226 V. Mayor of London, 308 v. Jay, 225 V. Mellingham, 14 v. Jenkins, 603 V. Merionetshire, 695 v. Jepson, 468 V. Merioneth, 207 v. Jesse Smith, 53 V. Metr. Com. Sewers, 218 v. Johnson, 53, 304, r,:\<; V. Metrop. Distr. Ii. Co., 29 v. Jones, 453, 468, 561 V. Middlesex, 139, 329 v. Jordan, 468 V. Middlesex JJ., 259, 269 v. Kent, 139, 600 V. Midland K. Co., 554, 572 v. Kerrison, 600 V. Mildenhall, 122 v. Kershaw, 511 V. Mill, 350, 375 v. Keyn, 240, 241, 521 V. Mi 11 edge, 154 v. Kilvington, '200 V. Millis, 4 v. King, 339, 469 V. Mills, 606 v. Kingston, 326 V. Milverton, 77 v. Kippo, 467 V. Moah, 64 v. Knapp, 277 V. Monck, 343 v. Larnbe, 344 V. Moore, 180 v. Lancashire, 616 V. Morgan, 693 v. Lancashire JJ., 417, 431 V. Morris, 345, 684 v. Land Tax Com., 343 V. Mortlake, 412 v. Lawrence, 467 V. Moseley, 213 v. Leeds, 385 V. Mount, 237 v. Leicestershire, 628 V. Murrow, :,t\~> v. Lesley, 240 V. Mursley, 201 v. Leverson, 44, 503 V. M ycock, 184 v. Lewes, 696 V. Myott, L98 v. Lewis, 240, 540 V. N. Collingham, 536 v. Lichfield, 563 V. N. (Jurry, 12L v. Lindsay, 600 V. Neath, 7)72 v. Linford, 326 V. Newark, 258 v. Little Coggleshall, 201 V. Newman, 461 v. Llangian, 267, 536 V. Nicholson, 121 v. Lloyd, 4iis V. Norfolk, ' 416, 423 424, 489 t. Lofthouse, 620 V. Xorthleach, 276, 27 s v. London JJ., 681 V. Norwich, 626 v. Long, 635 V. O'Connor, 570 v. Loom, 554 V. Oldham, 78, 526 v. Lopes, 240 V. Olifier, 184 v. Loxdale, 54, 493 V. Owen, 96 TABLE OF CASES. li R. v. Owens, 154 R. v. Sleep, 183 v. Oxford, • 69, 123 v. Smith, 18, 147, 148, 462, 513, v. Oxford (Bp.) 421, 422, 426 541, 604, 636, 689, 696 v. Oxfordshire, 616 v. Somersetshire, 214 v. Oxley, 658 v. Southampton, 292 v. Papworth, 103 v. Speed, 182 v. Paty, 581 v. Spratley, 577 v. Pawlett, 489 v. Spurrell, 124 v. Payne, 575 v. St. Albans, 214 v. Pearce, 511 v. St. George's, Han. Sq., 292 v. Pease, 4, 597 v. St. George's Union, 69 v. Pembridge, 39, 103, 482 v. St. Giles, 105 v. Percy, 87 v. St. Gregory, 359 v. Phillips, 350, 415 v. St. James, Westm'r, 218, 304 v. Pickford, 15, 628 v. St. Martin's, 225 v. Pierce, 83 v. St. Mary, 157, 377 v. Pilkington, 136 v. St. Matthew, 155 v. Pinder, 92, 614 v. St. Nicholas, 359 v. Plowright, 213 v. St, Peter's, 14 v. Ponsonby, 226 v. St. Sepulchre's, 198, 369 v. Poor Law Comm'rs, 8, 299, 540, v. Staffordshire, 8, 14, 17 357, 489 541 v. Siainforth, 453 v. Porter, 166 v. Stepney, 696 v. Portsea, 377 v. Stephens, 140 183, 186 v. Poynder, 124 v. Stevens, 565 v. Pratt, 469, 534 v. Stewart, 225, 226 v. Preston, 103 v. Stimpson, 182 v. Price, 547 v. Statfold, 606 v. Prince, 184 v. Stock, 695 v. Pugh, 304 v. Stoke Bliss, 658 v. Purdey, 104 v. Stoke Damerel, 10, 14 v. Read, 346 v. Stone, 461, 636 v. Richards, 661 v. Storr, 661 v. Robins, 184, 467 v. Strachan, 406 ■v. Robinson, 315, 658, 671 v. Stratford, 122 v. Rochester, 620 v. Stretfield, 346 v. Rose, 179, 492 v. Strngnell, 564 v. Rnndle, 166 v. Surrey, 489 v. Russell, 92 , 266, 467, 673 v. Sussex, 17, 328 v. S. Wales R. Co., 214, 602 v. Sutton, 524, 525 v. S. Weald, 423, 528 v. Swann, 681 v. Saddlers' Co., 120 v. Sykes, 206, 601 v. Saffron, 553 v. Sylvester, 207 v. Sainsbury, 152 660, 661 v. Tart, 140 v. Salisbury, 301 v. Tatlock, 471 t. Salop, 548 v. Taunton, St. James, 254 v. Saltren, 507 v. Thackwell, 328 v. Sattler, 240 v. Thornhill, 637 v. Scaife, 502 v. Threlkeld, 258 v. Scott, 500, 589 v. Thurston, 700 v. Seberg, 240 v. Tillingham, 198 v. Sedgley, 555 v. Timmins, 467 v. Senior, 277 v. Tinkler, 182 v. Sevenoaks, 328 v. Tithe Com'rs, 416, 417 v. Shee, 226 v. Tewkesbury 154 v. Shepherd, 225 v. Todmorden, 622 v. Shiles, 350, 415 v. Toke, 453 v. Shrewsbury, 14, 575 v. Tolley, 13 v. Silvester, 568 v. Tonbridge Overseers, 7, 68, 337 v. Skeen, 7,34 , 343, 346 v. Tone, 529 v. Slator, 26, 529 v. Toole, 329 lii TABLE OF CASES. E. v. Totnes, v. Totnes Union, v. Tra fiord, v. Trew, v. Trustees, v. Tucker, v. Turvey, v. Un. of Cambr., v. Usli worth, v. Yandeleer, v. Varlo, v. Verelst, v. Vine, v. Wagstaff, v. Walford, v. Wallis, v. Walsall, v. Walter, v. Warwick, v. Warwickshire, v. Wash brook, v. Watson, v. Watts, v. Wavell, v. Wells, v. Weobley, v. West Riding, 30, 328, v. Weymouth, v. Whiteley, v. Widdop, v. Wigan, v. AVis?" * • " '681 v. Wilcock, v. Wilkes, v. Wilson, v. Williams, 73, v. Wilmett, v. Wimbledon Loc. B'd, v. Windsor, v. Win wick, v. Wood, 113, v. Woodland, v. Woodrow, v. Worcestershire, 8, v. Workshop B'd, v. Wright, 74, 223, v. Wycombe, v. Wymondham, v. York, v. York & M. R. Co., v. Yorkshire, v. Youle, v. Younger, v. Zulueta, R. R. Co. v. Hecht, v. Lacey, v. McClure, v. Whitton, R. R. Co's v. Gaines, Rachel (Sch'r) v. U. S., 606 603 328 183 53 561 446 603 69 596 500 610 383 468 251 40, 500 207 183, 186 137, 480 325 618 8 328 206 697 200 489, 546, 681 154 277 636 346 315 74, 435 203 468 438, 468 183 155 538 606 214, 492 198 183 218, 267 617 231, 662 495 136 116 495 328, 636 314, 321 439 38, 237 432 244 713 222 509 681 Radnorshire B'd v. Evans, 570 Raeburn v. Andrews, 589 Railroad v. Harris, 222 Raleigh, &c, R. R, Co. v. Reid, till, 494, 496 Ralston's App., 763 Ralston v. Crittenden, 427, 429 v. Oursler, 756 Ramsey v. Gould, 474, 568, 573 v. Toy, 451 Randall v. Pry or, 593 v. Randall, 597 Randolph v. Bayne, 77 v. Milman, 472 v. State, 460, 577 Rankin v. Tenbrook, 486 Ransom v. Hays, 191 Rashleigh, Exp., 385, 399 Rath bone v. Bradford, 701 Rathbun v. Acker, 495 Raudebaugh v. Shelley, 212, 292, 294 Raudenbusch's Pet'n, 7C>3 Rawley v. Rawley, 74, 102, 104 Rawson v. State, 29, 451 Ray, Exp., 51, 252 v. R. R. Co., 217 v. The Henry Harbeck, 349 Read v. Edwards, 53 | v. Ingham, 484, 569 v. Smith, 644 v. Story, 266, 519 765 Overs' rs v. Cumru Over- seers, 641 Readshaw v. Balders, 657 Ready v. Fitzgerald, 101 v. Huebner, 191 Reardon v. Searcy, 391 Rebeckah. The, ' 495 Receiver, Pol. Distr., v. Bell, 312 Receivers v. Sav. B'k, 143 of People's B'k v. Pat- erson Sav. B'k, Redfern, Re, Redgate v. Haynes, Redpath v. Allen, Red Rock v. Henry, Reed's App. Reading v. Savage, Reed v. Beall, v. Clark, v. Crocker, v. Davis, v. Eastman, v. Northfield, v. Wiggins, Reeder v. Holcomb, Reeves v. White, Regent U. S. Stores, Be, Re h fuss v. Gross, Reiche v. Smythe, Reichly v. Maclay, 66 432 468 641 281, 286 288, 354 381 435 641 179, 453, 457 191 457 371 123 215 635 418 344 189 TABLE OF CASES. liii Reiff v. Com'th, R ii'ord v. Knight, Reigelsberger v. Stapp, Reimer's App., Rein v. Lane, Reis v. Graff, Reiser v. Sav. Fund Ass'n, Reish v. Com'th, Remington v. Stevens, Remmington v. State, Removal Cases, Renick v. Boyd, Renner v. Bennett, Renwick v. Morris, Republic v. Hamilton, 341 54, 56 547 347 95, 479 396, 397 11 197 102 10, 456 220 570 256 216, 666 497 Restall v. L. & S. W. R. Co., 684 Reuss v. Bos, 153 Reynolds v. Baldwin, 45 v. Hall, 369 v. Holland, 8, 400, 436 v. McKinney, 189 v. Robinson, 169 Rheeling's App., 487 Rheiu B'ld'g Ass'n v. Lea, 281, 301 Rhoads' App., 195 Rhoads v. B'ld'g Ass'n, 271 Rhode Island v. Massachusetts, 227 Rhodes v. Smethurst, 350 Ricard v. Williams, 27, 448 Rice v. R. R. Co., 5, 6, 44, 108, 173, 495, 497, 685 v. Ruddiman, 693, 702 Rich v. Flanders, 376 v. Keyser, 534, 535 Richards v. Dagget, 343 v. Fox, 545 v. McBride, 14 v. Patterson, 282 v. Rote, 394 Richardson, Be, 693, 701 v. Cook, 363, 384, 389 v. Enswiler, 474 v. R. R. Co., 244 v. Richardson, 102, 106 Richens v. Wiggins, 291 Richie v. Smith, 646 Richmond v. N. L. R. Co., 497 Richter v. Hughes, 493 Rickett v. Met. R. Co., 534 Riddick v. Governor, 401 v. Walsh, 438 Riddle's App., 477 Rider v. Kidder, 120 v. Maul, 486 v. Wood, . 185 Ridgway v. Warton, 482 Ridler v. Punter, 359 Ridsdale v. Clifton, 40, 96 Rigg v. Wilton, 517, 518 Riggs v. Brewer, 59, 60, 269, 281, 282, 287 Riggs v. Pfister, 60, 287 Riley v. Gregg, 192 v. Read, 122 Ripley v. Gifford, 271 v. Waterworth, 445 Rippon's Ex'rs v. Townsend's Ex'rs, 99 Risher v. Thomas, 593 Rishton v. Whatmore, 482 Rising v. Patterson, 199, 405 Ritchie v. Franklin Co., 4^7 River Wear Com. v. Adamson, 33 Rivers v. Adams, 588 Road v. R. Co., 597 Roane v. Lines, 144 Robb v. Wash'n Co., 227 Robbins v. R. R. Co., 67.517 v. State, 281.300 Roberts v. Egerton, 47, 53fr v. Fahs, 282 v. Goff, 446 v. Orchard, 403 v. Phillips, 483 v. Pillow, 476 v. Pippen, 297 v. Price, 491 v. Wetherall, 542 v. Williams, 123 v. Yarboro, 257 Robertson, Exp., 637 v. Robertson, 328 Robinson v. Briggs, 125 v. Collingwood, 188 v. Eagle, 733 v. Emerson, 284, 317 v. Green, 657 v. Varnell, 103 Robson, Be, 197 Roby v. West, 644, 692 Rochdale Canal Co. v. King, 211, 215 Rochester v. Barnes, 259 v. Pettinger, 130 B'k v. McLeod Co., 192 Rochfort v. Atherly, 329 Rockwell v. Clark, 422 Roddam v. Morley, 476 Rodebaugh v. Sanks, 115, 619, 621, 699 Roderick v. Aston L. B'd, 598 Rodgers v. Gibson, 99 Rodrigues v. Melluish, 12 Roffignac Str., 475 Rogers' Case, 708 Rogers v. Goodwin, 7, 501 v. Rathbun, 446 v. Smith, 333 v. Vass, 257, 258, 693 v. Watrous, 271, 2S1 Roles v. Rosewell, 276 Rolland v. Commonwealth, 412 Rolle v. Whyte, 60, 527 liv TABLE OF CASES. Rolls v. St. George, Soutbw., 164, 519 Romney Marsh v. Trinity House, G74 Ronkendorff v. Taylor, 545 Rood v. Ry. Co., 681 Rooke's Case, 203 Roosevelt v. Godard, 246 v. Maxwell, 112, 113 Rose's Est., 617 Rose v. Governor, 233 v. Groves, 674 v. Hinley, 234 v. Miller, 674 Rosenplaenter v. Rossele, 7 Rosenthal v. Wehe, 392 Ross v. Doe, 144 v. Green, 235 v. Price, 666 v. Reddick, 703, 706 Rosseter v. Cahlmann, 235 Rossiter v. Miller, 483 Rothes v. Kirkaldy, 343 Round v. Bell, 291 Rounds v. Way mart, 300 Roundtree, Exp., 747 Roup's Case, 735 Routledge v. Low, 243, 244 Routsong v. Wolf, 384 Rowell v. R. R. Co., 392 Rowning v. Goodchild, 668 Royal Brit. B'k v. Turquand, 627 Royal Mail Co. v. Braham, 555 Ruckmaboye v. Lullooboy, 402 Rue v. Alter, 174, 486 Ruggles v. Illinois, 36 v. Keeler, 106 v. Wash'n Co., 45, 95 Rumsey v. Berry, 194 v. N. E. R.' Co., 632 Rupp v. Swineford, 105 Russell, Exp., 203, 224 v. Cage, 491 v. Prat, 438 v. University, 475 v. Wheeler, 143, 213 Rustmogee v. R. R. Co., 227 Ruthbun v. Acker, 98, 139 Rutherford v. Greene, 111, 3G8 v. Maynes, 488, 490 Rutland v. Mendon, 272, 534 Ryall v. Rolle, 86 v. Rowles, 86, 120 Ryan v. Hoffman, 363 v. State, 252 v. Vanlandingham, 619 Ryder v. Wilson's Ex'rs, 375 Ryegate v. Wardsboro, 45, 334, 353, 401 Sadler v. Leigh, Saffron Hill, Exp., Sage v. McLaughlin, Sailor v. Hertzog, Sale v. Lambert, Salem Tp., Road in 544 126 638 160 483 616 S. Sacramento v. Bird, 269 Tump., &c, Co., v. Hayes, 216, 663, 669 Salkeld v. Johnson, 41, 42, 73, 84, 85, 86 Salmon v. Burgess, 701 Salomons v. Miller, 526 Salter's Co. v. Jay, 82, 308 Saltoun v. Advoc.-Gen., 113 Sampeyreac v. U. S., 389 Sams v. King, 252 Samuel Strong, The, 509 Samuels v. Com'th, 332 San Francisco v. Hazen, 29, 44 &c, R. R. Co., v. State Board of Equal'n, 726 San Theodoro v. San Theodoro, 234 San Pedro, The, 255 Sanders v. Com'th, 322, 688, 702 v. Johnson, 359 v. State, 689 Sandiman v. Breach, 568 Sandys, Exp., 604 Santa Clara Co. v. R. R. Co., 730 Santos v. Illidge, 38, 237 Satterlee v. Matthewson, 381, 382 Saunders v. Carroll, 363 v. S. E. R. Co., 125, 491 Sav. B'k v. U. S., 254 Saving Fund v. Yard, 117 Sav. Inst'n v. Makin, 254, 256 Sawyer, Exp., 713 v. State, 344 Sayre v. Wisner, 367 Scadding v. Eyles, 388 Scaife v. Stovall, 173, 487 Scales v. Pickering, 494 Scaltock v. Harston, 599 Scanlan v. Childs, 505 Scarborough v. Rural Anth'y, 538 Schall v. Bowman, 758 Scheftels v. Tabert, 272, 694 Schenley's App., 542, 562 Schepp v. Reading, 152, 493, 550 Schlaudecker v. Marshall, 115, 209, 3 1 2 Schmidt, Exp., 713 v. Armstrong, 542 Schober v. S. F. & L. Ass'n, 750 Schoff v. Impr't Co., 126 School B'd v. Islington, 126 Dir's v. B'k, 101 v. Carlisle B'k, 117 Distr. No. 5 v. Sch'l Dir's Distr. No. 10, 411 Distr. v. Whitehead, 269 TABLE OF CASES. Iv Scholt v. Harvey, 127 Schreider v. Hosier, 518 Schrifer v. Wood, 4, 101, 106 Schutt v. Evans, 191 Schuyler Co. v. Mercer Co., 174, 226 335, 427 Schuylkill, &c, Co. v. Decker, 632, 6H3 Nav. Co. v. Loose, 142 Schwenke v. R. R. Co., 281, 298, 695 Sehwieke's App., -418 Scotch Widows' Fund v. Craig, 662 Scott v. Avery, 211 v. Berkely, 523 v. Com'th, 681 v. Guthrie, 38 v. Legg, 136 v. Pacquet, 454 v. Royal Wax Co., 555 v. Searles, 54 v. Ux bridge, &c, R. Co., 431 Scotten v. State, 634, 636 Scowden's App., 735, 738 Scranton Sch. Distr. App., 713, 734, 764 Scrimshire v. Scrimshire, 236 Seale v. Mitchell, 508 Seaman v. Carter, 363 Searcy v. Tillman, 213 Sears v. Willson, 616 Second Manh. B. A. v. Hayes, 615 N. Y. B. Ass'n v. Gallier, 492 Seely v. Ohio, 206 Seidel's Load, 618 Seidenbender v. Charles, 82, 86, 644 Seiders' App., 131, 132 Seifried v. Com'th, 283, 299 Seiple v. Elizabeth, 427, 429 Selkrig v. Davies, 241 Selleck v. Selleck, 179 v. Com. Council, 594 Selman v. Wolf, 336 Selmes v. Judge, 404 Seneca Co. v. Allen, 247 Severance v. C, S. Supply Ass'n, 390 Sewall v. Jones, 474 Seward v. The Vera Cruz, 298 Sewell v. Taylor, 561 Seylar v. Carson, 361 Seymour v. Hubert, 332 v. Judd, 616, 630, 635 Shackleford v. Ward, 189 Shackell v. Rosier, 656 Shaffer v. Kintzer, 461 Shaftesbury v. Russell, 211 Shaftoe's Charity, Be, 329 Shain v. Searcy, 189 Shallow v. Salem, 395 Sharp, Exp., 24 v. Blankenship, 381 v. New York, 143 v. Speier, 475 Sharpless v. Philad'a, 738, 752, 754 Shaw v. Macon, 218 v. Morley, 578 v. R. R. Co., 1 74 v. State, 707 Shawnee v. Carter, 21?, 491 Shay's App., 371 Shear v. Columbia, 287 Shears v. Jacobs, 590 Sheetz v. Han best, 169 Sheil, Exp., 472, 473 Shelby v. Guy, 106 Sheldpn v. R. R. Co., 597 v. Wright, 545 Shell v's Case, 544 Shelton v. Tiffin, 222 Shepard v. Comm'rs, 671 Shepardson v. R. R. Co., 263 Shepherd v. Bradford, 226 v. Hall, 201 v. Hills, 663 v. Hodsman, 301 v. Peck, 382 v. People, 362, 376 Sheppard v. Gosnold, 500 Sherborn v. Wells, 528 Sheridan v. Salem, 508 Sherman Co. v. Simons, 706 v. Story, 43 Sherwin v. Bugbee, 501 Sherwood v. Ray, 102 Shiels v. Rait, ' 564 v. G. N. R. Co., 124 Shillito v. Thompson, 492, 575 Shipman v. Henbest, 215, 693 Shipperdson's Trusts, 493 Short's Est., 242 Short v. Hubbard, 458 v. McCarthy, 13 Shortrede v. Cheek, 37, 482 Shrew v. Jones, 115 Shrewsbury v. Beasley, 87, 88 v. Boylston, 41 1 Earl of, v. Scott, 42, 74, 278, 522, 524 Shriedley v. State, 77 Shrimpton v. Sidm., &c, R. Co., 431 Shriver v. State, 133 Shufileton v. Hill, 378 Shumaker v. Johnson, 615 Shuttleworth, Be, 614 v. Cocker, 328 v. Le Fleming, 46, 563 Sibley v. Smith, 35, 174, 475 Sickles v. Sharp, 459 Siemens v. Sellers, 400 Sifred v. Com'th, 318, 319 Sika v. R. R. Co., 695 Sill v. Worswick, 241 Si Hence, Exp., 543 Silver v. Ladd, 136 lvi TABLE OF CASES. Simmons v. Crook, v. Jacobs, v. Powder Works, Simon v. Moss, Simonds v. Barton, v. Powers, 48, Simonson, Exp., v. Durfee, Simonton, Exp., Simpson v. Blues, 30, v. Keady, v. S. Staffordsh. Water- works, v. Unwin, Simpkin v. Birmingham, Simpkins, Exp., Simplot v. Ry. Co., Sims v. Bean, v. Dough, v. Thomas, 120, 148, Singer v. Hasson, Manuf. Co v. Rook, v. W right, Sinnott v. Whitechapel, Sipe v. Finarty, Siter v. Sheets, Skelton v. Bliss, Skinner v. Usher, 528, Slack v. Jacob, 246, 248, Slayton v. Hidings, Sleeper v. Dougherty, v. Goodwin, 21, Slocum v. Fincher, v. Slocum, 356, Smalley v. Doughty, Smead v. Williams, Smedbury v. Simpson, Smets v. Weathersbee, Smith, Exp. (3 Q. B. D.), (40 Cal.), v. Adams, v. Allen, v. Arapahoe Dist. Ct., v. Aud.-Gen., v. Bank, v. Banker, v. Barnham, v. Bell, _ v. Birmingham, v. Brown, 55, 185, 220, v. Drew, v. Ferris, v. Fox, v. G. W. R. Co., v. Gilder, 381, v. Godfrey, v. Hard, v. Helmer, 37, v. Hickman, V. Hiester, V. Hoyt, 679, 206, 259, 46, 681, 105 703 352 304 764 400 427 551 430 220 681 495 402 15 551 229 451 251 291 391 155 730 327 194 645 642 561 744 608 140 492 391 635 192 228 192 701 601 288 147 541 683 363 191 689 570 353 225 540 667 126 13 343 382 647 620 134 281 631 680 Smith v. Hudson, v. Huggett, v. Jones, v. Keats, v. Kirby, v. Lindo, v. Lockwood v. Look, v. McGinty, v. Mawhood, v. Morlatt, V. Packard, v. People, v. Philadelphia, v. R., v. Randall, v. R. R. Co., v. Robertson, v. Rues, v. Saxton, Smilh, Spooner, State, Stevens, Stewart, Tilley, Walton, Waterbury, Whit more, Wilcox, v. Blytlie, 483 641 619 226 485 60, 463, 500, 649 216, 676 597 172 651 142, 174, 459, 478 379 54, 58, 65, 149, 220, 285, 297, 335 v. v. V. V. V. V. V. V. V. V. Smithett Smithie v. Garth Smyth v. Darley, Snyder v. Warren, Snoddy v. Cage, Snell v. Bridge water, &c, Co., 97, 213, 281 Sneed v. Com'th, 7 Society, &c, v. New Haven, 117 for Prop., «fec., v. Wheeler, 367 Solarte v. Melville, 193 Solomon v. Co-op. Co., 101 v. Dreschler, 644 96 603 49, 400 217 510 25 360, 361 51, 700 474 9, 510, 318, 567 142 698 503 471 717 211 162, 181 523 248 606 543 517 Somerset v. Dighton, 115, 343, 363 Somersetl, In re Duke of, Somerville v. Wmbish, Soon Hing v. Crowley, Souter v. The Sea Witch, South Carolina v. Gaillard, v. Stoll, of Ireland Collierv v. War- die, Ottawa v. Perkins, Platte Land Co. v. Buffalo 169 704 42 349 683 307 590 520 604, 713 Southam, He, 547 Southampton Dock Co. v. Richards, 624 Southw. R. R. Co. v. Cohen, 25, 465 Southwark B'k v. Com'th, 43, 259, 261 Sower v. Philadelphia, 703 TABLE OF CASES. IVll Spackman's Case, 572 State v. Adams, 510 Spalding v. Preston, 644 v. Addington, 682 Spangler's App., 216 v. Alexander, 265 Sparrow v. Kohn, 509 v. Allen, 604, 7 1 3 Speck v. Gurnee, 178 v. Allaire, 681 Speckert v. Louisville, 681, 682 v. Anderson, 213 Speidel's App , 634 v. Andrews, 265 Spencer v. Geissman, 164 v. Andriana, 509 v. Metrop. B'd, 52,69 v. Arledge, 227 v. State, 259, 262 v. Arlin, 103 Spengler v. Snapp, 191 v. Aseher, 241 Spering v. Laughlin, 178 v. Atwood, 363, 367 Spicer v. Bacon, 614 v. Auditor, 363 v. Barnard, 162 v. Babcock, 2£ 1, 54, 282 Spikes v. Burgess, 138 v. Bacon, 186 Spinning v. Build., &c, Ass'n , 395 v. Bailey, 703 Sprague v. Birdsall, 453, 495 v. Baker (9 Rich.), 609 Spring v. Collector, 257 v. Baker (38 "Wis.), 610 v. Russell, 216 v. Baldwin, 694 &c.,Works v. San Francisco, 69-5 v. Bancroft, 230 Str., Re, 269, 637 v. Banks (The), 682, 700, 701 Springfield v. Edwards, 714, 719 v. Barrow, 276 v. E. R. Co., 225 v. B'd of Pub. W'ks, 352 Sprowl v. Lawrence, 145, 400 v. Beasley, 410 Spyve v. Topham, 432 v. Bergen, 708 Squires' Case, 77 v. Berry, 281, 294 St. Bartholomew's v. Wood, 635 v. Bishop, 59, 281, 282, 287 Charles Co. v. Powell, 229 v. Blair, 142, 352 Cross v. Howard, 113 v. Blake, 259, 282 Johnsbury v. Thompson, 764 v. Blakeman, 363 Leonard's v. Franklin, 116, 555 v. Bond, 702 Losky v. Green, 514 v. Boogher, 274 Louis v. Laughlin, 490, 573 v. Boon, 31 v. Goebel, 456, 457 v. Boyle, 692 v. Ins. Co., 281 v. Bradford, 364 Co. v Sparks, 619 v. Brandt, 412 Gas L. Co. v. St. Louis, 234 v. Brewer, 515, 688 &c, R. R. Co. v. Ch irk, 9, 22 v. Brewster, 36 Ry. Co. Williams, v. Brookover, 683 Mary v. Radcliffe, 122 v. Brooks, 12, 108 Martin v. New Orleans, 289 v. Bryson, 181 Peter's Ch. v. Scott, 45 v. Buchanan Co. Ct., 145 Sepulchre's, Exp., 11,23 v. Camden, 712 Werburgh v. Hutchinson 15 v. Canterbury, 510 Stable v. Dixon, 218 v. Carney, 617 Stacey v. Lintell, 136 v. Cazeau, 75 Stafford v. B'k, 616 v. Chambers, 704, 705 v. C. & B. Co., 616 v. Chambersburg, 542 v. Creditors, 272, 537 v. Chase, 493, 503 Stainton v. Woolrych, 598 v. Clark, 54, 58, 351 , 537, 560 Stairs v. Peaslee, 101 v. Clevenger, 32S Stallard v. Marks, 195 v. Click, 619, 701 Stambaugh v. Smith, 109 v. Cobaugh, 235 Stamp, Exp., 180 v. Com'rs (26 Ohio St.) 671 Standing v. Alford, 693 v. Com'rs of R. R. Tax' a, 71, 560 Stanford v. Peirce, 333 v. Co. Com'rs, 517 Staniels v. Raymond, 400 v. Co. Ct., 273 Stanley v. Dodd, 186, 470 v. Cole, 615, 681 v. Nelson, 644 v. Conklin, 582 v. Wharton, 666 v. Conkling, 269, 680 Siate v. Acuff, 410 v. Connell, . 365 lvni State v. Connor, v. Cook, v. ( hi win, v. Covington, v. Crawford, v. ( Irosa, v. Crosset, v. Cunningham, V. Curran, V. Currier, V. Curry, V. Dale, V. Davis, V. Dean, V. Delesdenier, V. I )ickinson, V. Dillon, V. Doherty, V. Dolan, V. Donehey, V. Douglass, V. Draper, V- Duggan, V. Duval Co., V. Ellis, V. Esk ridge, V. Ferguson, V. Fertilizer Co., V. Kiske, V. Eitzgerald, V. Fleming, V. Fletcher, V. Forney, V. ( rardner, V. Garland, V. Garth waite, V. Gasconade, V. Gillick, V. Glenn, V. Goeize, V. Grady, V. ( lumber, V. Harris, V Hatfield, V Hays, V Heidorn, V Henry, V Hill, V 1 1 i 1 mantel, V Qolman, V IL.lt Co. Ct., V Horsey, V Hudson, V Ingersol, V Intox. Liquors, V . Jaeger, V Jarrett, V Jersey City, V Johnson, V Jones, V Joiner, TABLE ( 3F CASES. 558 State v. Judge, 36, 272, 551 501 v. Judges C. P., 705 216 V. Kelly, 288 756 V. King, 135, 400 692 v. Kinne, 224, 481 681 v. Lacrosse, 263 181 v. Lee, 433 273 v. Liedke, 8, 435 233 v. Littlefield, 212, 364 600 v. Lloyd, 681 4-.") v. Loftin, 216 477 v. Long, 681, 682 115 v. Lovell, 453 595 v. McAllister, 707 703 v. McCul lough, 477, 559, 707 59 v. McGarry, 573 511,717,730 v. McKay, 163 7':; v. McKenney, 236 713 v. McLean, 619, 621 595 v. Mace, 714, 719 2S8, 631 v. Macon Co. Ct., 292, 509, 517 281 v. Main, 450, 541 400 v. Mann, 108 764 v. Manning, 145, 392, 448 37 v. Marlow, 612 526 v. Mariindale, 147 363 v. Matlock, 733 116, 118 v. Mayberry, 456 491 v. Mayor of Patterson, 14, 95 298, 744 v. Merriman, 756 227 v. Milburn, 223 661, 681 v. Miller, 264, 317, 521, 526 434 v. Mills, 298, 303, 308, 497 180 v. Miskimons, 259 224 v. Mister, 282 54 v. Moore, 376 377, 382, 390 549 v. Morristown, 560 617 v. Morrow, 273,281, 556 755 v. Myers, 412, 115 288 v. Newark, 363 321 v. Newton, 451 694 v. Nichols, 38, 41, :;77 271, 609, 620 v. Norton, 174, 176, 274, 315 183 v. Noyes, 595 42, 543 v. O'Connor, 681 252, 260, 702 v. Orange, 437 468 v. Oskins, 238 363 v. Paddock, 130 609 v. Parker, 661 574, 577 v. Partlow, 31 429, 430 v. Pa-ssmore, 681 317 V. Patterson, 7 -.5 713, 735 v. Peary, 311 265, 681 v. Pernberton, 574 712 V. Peters, 455 281, 557 v. Phelps, 98 703 v. Pitts, 017 269 v. Pinckney, 227 755 v. Pierce, ;;i7 616 v. Pollard, 273 227 v. Pool, 413 TABLE OF CASES. lix State v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. Popp, 89, 90 Powers, 454, 455, 466 Poydras, 4<)0 1'ratte, 227, 228 Preston, 162 Prohasco, 183 R. R. Co. (23 Ind.), 117 R. R. Co. (35 N. J. L.), 224 R. R. Co. (36 N. J. L.), 126 R. R. Co. (2 Sueed.), 401 Rack ley, 58 Ranson, 266 Recorder, 375 Richmond, 634 Robey, 517 Rogers, 271, 755 Rollins, 678 Rusk, 130 Ryno, 734 S. & S. Orph. Home, 511, 513 Sclia Her, Sell. Distr., Scudder, Severance, Shaw, Sherman, Showers, Slaughter, Smith (38 Conn.), Smith (7 la.), Smith (46" la.), Smith (67. Me.), Smith (83 N. C), Smith (8S. C), Smith (Tenn.), Smith (Tex. Soc'y Est. Usef. M., Solomon, Spencer, Springfield Tp., St. Joseph Co., St. Louis Co., Stein, Stephenson, Stevenson, Stewart, Stinson, Stoekley, Stoll, Stoller, Storey Co., Studt, Stumpf, Sturgess, Sweetser, Swope, Tavlor, Teieph. Co., Thompson, Tichenor, Townsh. Committee, 688 227 363 501 54 706 559 679 392 2S9 533 617 279 298, 300 4 320 588 451, 577 717,730 54 227 127 363, 364 74 298, 301 54 352 515 259 461, 574 293 271 610 302 420 515 172, 723, 751 441 508 541 State v. Trenton, v. Troutman, v. Ttirnp. Co., v. Vernon Co. Ct., v. Waholtz, v. Washoe Co., v. Weigel, v. Welsh, v. Whetstone, v. Whitworth, v. Wilbor, Williams, Williamson, v. v. V. V. V. v. V. V. V. v. 124, 289, 290, 560 279 19, 434 297 363 7 45 74 174, 451 318 316 252, 576, 577 276 Wilson, 274, 315, 728, 741, 750 Wish, Woodside, Woodson, Wright, Wyi, Yard, Yearby, v. Youmans, B'k v. Brown, 694 281 742 698 119 734 130 259, 343, 379 228 B'd of Ass'rs v. R. R. Co., 588 Line, &c, R. R. Co.'s App., 743, 744, 745 Tax on For. Held Bonds, 235 299 Treas. v. Weeks, 227 Stead v. Carey, 42, 381 Steamb. Co. v. Collector, 266 Steamsh. Co. v. Jolirle, 681, 694 Stebbins v. Anthony, 547 v. Pueblo Co., 148 Stechert v. East Saginaw, 756 Steed v. McRae, 179 Steel v. Henley, 649 v. State, 451 Steele v. Bates, 516 v. Brannan, 187 v. Midland R. Co., 42 Steen v. Finley, 373 Steiu v. Indianp., &c., Ass'n, 191 Steiner v. Coxe, 501 Steines v. Franklin Co., 428 Steinman, Exp., 713 Stemson v. Heath, 663 Stephen v. Muir, 191 Stephens v. Robinson, 649 v. Sharp, 189 Co. v. R. R. Co., 708 Stephenson v. Doe, 106 684 ,706 Sterling's App., 730 Stettin, The, 535 Steuart v. Meyer, 549 Stevens v. Evans, 663 v. Gourley, 607 , 641 v. Jeacock, 340 , 669 V. Ross, 204 v. Watson, 315 Stevenson v. Morris, 100 v. Oliver, 681 Ix table of cases. Steward v. Greaves, Stewart v. Bramhall, v. Com'th, v. Crosby, v. Foster, v. Freeman, v. .lones, v. Keerule, v. Law ton, v. Palmer, v. Slater, v. Slate, v. Stringer, Stiel v. Sunderland, Stier v. Oskaloosa, Stiles v. Murphy, Stilz v. Indianapolis, Stingel v. Nevel, Stinson v. Pond, v. R. R. Co., Stirman v. State, Stoats v. R. R. Co., Stocker v. Warner, Stockeit v. Bird, Stockt. & D. R. Co. v. 271, Barrett Stockton v. Coleman, Stockwell v. Brewer, v. McHenry, v. U. S., Stoever's App., Stoever v. Iruuiell, Stokes' Trusts, Stokes v. Grissell, Stone v. Dean, v. Eisinan, v. New York, v. Stone, v. Yeovil, Stoneman v. R. R. Co., Stoops v. Blackford, V. Post, Storey, Exp., v. Brennan, Storie v. Winchester, Stormfeltz v. Turnp. Co., 224, Story v. Solomon, Stoughton v. Baker, Stow v. Wyse, Stowell v. Fouch, Stracey v. Nelson, Stradling v. Morgan, if. Sch. Distr. v. Ufford, Straus v. Qom'th, Strauss v. Heiss, Streat v. Rothschild, Street v. Coin'th, v. Comm'rs, Streeter v. People, Streubel v. K. R. Co., Stribbling v. B'k, 276 191 736 722 245 99 310 325, 326 500 604 619 363 174, 349 474 392 364 520 557 L68 281, 680 295 375 45,48 , 478, 494 191 125 363, 373 314 546 683 493 553 628 616 127, 137 202, 574 409 245 615 25 218 189 361 225, 495 194 223, 227 606 78 586 36, 115 143 228 260 218 282, 292 283 518 686 116 ther v. Hutchinson, 442 Strode v. Stafford Justices, 44 ag v. Wheaton, 99 Strvker v. Cassidy, 13] Stuart v. Laird, ' 220,502,503.743 v. Leigh, 505 v. Palmer, 713 StiK labaker v. Marquardt, 191 Stump v. llornback, 712, 757 Sturgeon v. State, 615 Sturges v. Crowninshield, 99, 718 Sturgis v. Darrell, 447, 514 Sturgiss v. Hull, 363, 382 Sturla v. Freccia, 52 1 Sturtevant v. Norris, 370 Suche & Co., Re, 372 Sudbury Meadows v. Middlesex < anal, Suffolk B'k v. Worcester B'k, Sugar v. Sackett, Sullivan's App., Sullivan v. Adams, v. Barry, v. La Crosse, &c, Co., v. People, Sully v. Atty. -Gen., Summer v. Childs, Sunderland v. Sussex, Supervis's v. Heenan, v. U. S., Surtees v. Ellison. 216 457 496 569 263 202 173, 174 259, 275, 679 242 448 369 756 424,427,429, 4:il 681 Sussex Peerage, The, Sutphin v. Crozer, Sutton's Case, Sutton v. Clarke, v. Fletcher, v. Sutton, Swan v. Blair, Swann v. Buck, v. Lindsey, Swanson v. Swanson, Swartwout v. Air Line Co., Swartz's App., Swayne v. Lyon, Swea ringer, Re, v. U. S., Swepton v. Barton, Swift's App., Swift v. Adkins, v. Jewsbury, v. Luce, v. Newport, v. Swift, v. Tyson, Swigert, Re, Swing v. Woodruff, Swinney v. R. R. Co., Swords v. Owen, Syracuse City B'k v. Davis, Syred v. Carruthers, 6, 234, 236, 471 189 102 598 163 76,86 650 269, 526, 703, 755 227 106 262 361 164, 517, 518 227 624 333, 336 191 141 25 238 236 167 568 597 259 647 394 629 TABLE OF CASES. lxi T. Third Nat. B ; k v. Seneca Fa lis, 708 Thirty-Fourth Str. R. R. Co. , Be, 751 Tafoya v. Garcia, 272, 537 Thistle v. Coal Co., 174 , 177 Taggart v. Commonwealth, 749 Thistleton v. Frewer, 380 Talbot v. Shrewsbury, 291 Thoday, Exp., 329 v. Simpson, 446 Thorn v. Doub, 191 Tallamon v. Cardenas, 679 Thomas v. Adams, 220 Tallman v. Jones, 178 v. Afflick, 547 Tarrant v. Baker, 403 v. Brady, 655 Tassell v. Ovenden, 337 v. Brown, 483 Tate v. Stool tzfoos, 384 v. Collins, 261 v. \Velling8, 193 v. Desanges, 544 Tattle v. Grimwood, 678 v. Mahan, 70 Tatum v. Tamaroa, 313 v. Owens, 751 Tayloe v. Thomson, 2 v. Shoemaker, 631 Taylor, Be, 148, 204 v. Stephenson, 465 v. Caldwell, 627 v. Taylor, 623 755 v. Crowland Gas Co., 123, 649 Thomasson v. State, 23 v. Goodwin, 464 B'k v. Stimpson, 192 v. Greene, 168 Thompson's Appeal, 418 v. Humphreys, 125 Thompson v. Bulson, 44 v. Kelly, 104 v. Carroll, 427 v. Mitchell, 362, 363, 368 v. Ewing, 200 v. Newman, 74, 162 v. Farrer, 46 v. Oldham, 70, 288 v. Gibson, 328 v. Oram, 561 v. Harvey, 626 v. Palmer, 44, 45 v. Hill, # 601 v. Parry, 524 v. Lovrein, 615 v. Phillips, 636 v. Milwaukee, 713 v. Porter, 604, 713 v. Smith, 486 v,. Rushing, 685 v. State, 400 v. State, 681, 701 Thomson v. Adv.-Gen., 242 v. St. Mary Abhott, 122 Thorburn v. Barnes, 603 v. Taylor, 42, 489, 558, 559, Thorne v. Moslier, 549 623, 718, 719, 720, 738 Thornton v. Boyd, 543 v. Thompson, 517 Thorpe v. Adams, 298 v. U. S., 459, 480 v. Browne, 123 v. Wei bey, 541 v. Schooling, 259 271 Tawny's Case, 346 Thurston v. Fisher, 106 Teague's Case, 539 v. Prentiss, 216 Teather, Exp., 604 v. State, 332 406 Tempest v. Kilner, 562 Thynne v. St. Maur, 169 Temple v. Hays, 701 Tidey v. Mollett, 530 Templeton v. Home, 685 Tiemeyer v. Turnquist, 178 Tennant v. Bell, 543 Tierney v. Dodge, 259 v. Rawlings, 630 Tilford v. Ramsey, 523 Tenney v. Foote, 192 Tilton v. Swift, 382 Tertian, Be, 128 Tims v. State, 263 Terrell, Be, 203 Times Pub. Co. v. Ladomus, 691 Terrill v. Auchaner, 634 Timlow v. R R. Co., 707 Territory v. Young, 126 Tinker v. Van Dyke, 362 Terry v. B'k, 707 Tioga Co. v. South Creek Tp J 177 v. Milwaukee, 706 Tipper v. Nichols, 598 Teter v. Clayton, 678 T.istlell v. Coombe, 569 Tetlow, Be, 231 Titcomb v. Ins. Co., 288 Tewkesbury v. Twyning » 198 Titusville's Appeal, 457, 479 Thames Haven Co. v. Pose, 190 Tivnan, .Re, 128 &c, Ins. Co. v. Hamilton, 570 Tobacco Pipe Makers v. Woodroffe, 56 Thayer v. Dudley, 62 Tobin v. Hartshorn, 379 Theberge v. Landry, 230 v. R, 1S6 Theriat v. Hart, 531 Todd v. Clapp, 395 Ixii TABLE OF CASES. 108 632, 633 478 544, 700 543 33, 36, 400 446 67 489 491 23, 45 363 29,74 619 330 690 274 162, 658 383 Tolland v. Willington, Tombs v. R. R Co., TomkinB v. Ashby, Tomlinson v. Bullock, Toms v. Wilson, Toouele v. Hall, I ike v. Newman, Toower, In re, v. London, Torquay v. Bridle, Torrance v. McDougald, T »rrey v. Corliss, Torreyson v. Exam'rs, Torry v. Milbury, Tottenham B'd v. Rowell, Toutill v. Douglas, Towle v. Marrett, v. Smith, Tow! or v. Cliatterton, Townsend v. Brown, v. Deacon, v. Little, Sav. B'k v. Eppin Trabant v. Rumraell, Trask v. Green, Treas'r of Vt. v. Clark, Treat v. Strickland, Tied wen v. Hoi man, Triebel v. Deysher, Trimmer v. Heagy, Triplett v. Grabam, Trist v. Cabenas, Tritt v. Crotzer, Troiitinan v. May, True v. Triplett, Truebart v. Babcock, Trueman v. Lambert, Tuberville v. Stamp, Tucker v. Tbe Sacramento, Turnbull v. Farnsworth, v. Forman, Turner, Exp., Be, v. Browne, v. Evans, v. Morgan, v. O'Bannon, v. Reynell, v. State, Turney v. Wilton, Turn p. Co. v. Brown, v. Com'tb, Turtle v. Hartwell, Tuscaloosa Bridge Co. v. Jemison, 143 Tuton v. State, 681, 6S2 Tuttle v. Griflin, 508, 629 v. State, 198 Tuxbury's App., 513, 515 Twenty-eijiht Cases, 480 Twenty-eightb Str., Re, 211, 215 Twitcbell v. Tbe Missouri, 235 255 402 288 r, 138 517 520 256 691 211 207 615 169 392 197, 658 227 192 228 82 186 349 642 373 287 179 638 37 410 220 641 320, 407, 467 397, 695 216 387 135 Two Ellens, The, 588 Two Hundred Cliests of Tea, 112 Twycross v. Grant, 135, 191, 439 Tyerman v. Smith, 635 Tvler v. Tvler, 517 Tyman v. Walker, 7, 23, 93 Tvson v. Postlethwaite, 277 v. Thomas, 648, 697 U. S. v. v. V. V. V. V, V V V V V V V V V V V V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. v. V. V. V. V. Adams, Amedy, Atbens Armory, Babbit, Bags of Coffee, Ballard, Bank, Barr, Barrels of Spirits, Bassett, Beaty, Bevans, Block, Bowen, Briggs, Buzzo, Cases Cloth, Casbiel, Cheeseman, Cigars, 185 116 109, 466, 475, 480 258, 583 542 150 505 259, 271, 688 480 35,44 183 234 222 65 75 481 480, 678 345, 543, 713 271, 273, 558 523 Claflin, 314, 320, 321, 520, 525 Clayton, Clement, Collier, Conner, Coombs, Cottingbam, Davis, Dickson, Diekelman, Dist. Spirits, 101, 451 113 54,60 186 23, 543, 568 244 175, 227 257, 505 233 451 Eigbty-four Boxes Sugar, 453 Erie Ry., 235 Febrenback, 89 Finlay, 681, 682 Fisher, 74, 75, 151, 152, 240 Forty-three Gallons of Whiskey, Fox, Freeman, Furlong, Gadsby, Gilmore, Gooding, Graham, Greene, Hall, Harries, 243 119. 232 60, 438 50 586 505, 506, 510 453 505 223 451 703 TABLE OF CASES. 1 Xlll U. S. v. v. v. v. v. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. v. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. Hartwell, 453, 466 Henderson's Tobacco, 281 Herron, 224 Heth, 362 II ewes, 223 Hoar, 223, 227 Hudson, 480 Holmes, 233, 234 Howard, 241 Irwin, 259 Isham, 77 Johns, 109 Johnston, 505 Jones, 6, 98 Kessler, 241 Kirby, 179, 344 Klintock, 241 Knight, 230, 232 Kohnstamm, 689 Leathers, 185 Lytle, 505 JVIcKim, 162, 188 Macdaniel, 505 Martin, 654 Magi II, 5, 6 Moore, 505 Morris, 453, 469 Morrison, 509 Morse, 144 New Bedf. Bridge, 593 Oinev, 480 One Hundred Barrels, 280, 322 Palmer, 74, 241, 540 Porte, 708 Paul, H5 Ragsdale, 7, 443, 454, 455 Recorder, 504 Rogers, 125 Rossvalley, 410 R R. Cars, 77, 162 Ry. Co., 227 Sanders, 115 Sarchet, 113 Sheldon, 451, 574 Simms, 586 Sixty -seven Packages, 280, 322 Siarr, 3(52, 451 Stern, 410, 453, 467 Taylor, 183 Ten Cases Shawls, 415 The Helen, 681 Thirty-six Barrels of Wine, 480 Thomasson, 180 Thompson, 227 Three Tons of Coal, 480 Tvneu, 271, 320, 681 Twentv-five Cases, 2S0 Un. Pac. R. R. Co., 38, 41 Vickery, 22 Villalonga, 127, 137 U. S. v. Voss, v. Walker, v. Warner, v. Watts, v. White, v. Webster, v. Weise, v. Wigglesworth, v. Willetts, v. Williams, v. Wilson, v. Wiltberger, 186 280 7,29 481 227 80 561 479 480 227, 701 453 6, 234, 452, 453, 454, 455 v.Winn, 119 v. Wood, 322 B'k v. McKenzie, 228 v. Stearns, 707 Tel. Co. v. West. Un. Tel. Co , 1 16 Udney v. East India Co., 242 Underbill v. Ellicombe, 663 v. Longridge, 434, 465 Underwood v. Lilly, 384, 394 Unger v. Boas, 192, 358, 642 Ungley v. Ungley, 445 United Hebr. Ben. Ass'n v. Ben- shimol, 694 Land Co. v. G. E. R. Co., 492 Soc'y v. Eagle B'k, 6S, 70 Union B'k v. Laid, (ins v. Lenanton, 158 Canal Co. v. Dauphin Co., 117 v. O'Brien, 54 v. Young, 159 Ins. Co. v. Hoge, 505 v. U. S., 413 Iron Co. v. Pierce, 259, 683 Locks & Canals v. Towne, 659 Steamsh. Co. v. Melbourne Harbour Trust, 90, 91, 116 Pac. R. R. Co. v. U. S., 495, 709 Unity v. Burrage, 7U6, 708 Utica Ins. Co. v. Scott, 446 Uwchlan Tp. Road, 683, 686, 687 Va. & Md. St. Nav. Co. v. U. S., 552 Valentine v. Fish, 191 Vailana v. Falle, 216 Vallejo v. Wheeler, 187 Vanatta v. Anderson, 593 Vance v. Grev, 412 Vanderpoel v. O'Hanlon, 730 Vandeventer v. R. R. Co., 234 Vandike v. Rosskam, 486 Vane v. Vane, 159 Van Fleet v. Van Fleet, 370 Van Hook v. Whitlock, 667 Van Inwagen v. Chicago, 379, 684 Vankirk v. Skillman, 178 lxiv TABLE OF CASES. Taylor, ' 76,78, Van Loon v. Lyon, o0 \- ; ,n Noorden v. Pnn, Van Rensselaer v. Livingston, Van Riper r. Essex R. R- -Ka, Van Sandau, Ecp., . Van Bhaack v. R >bbins, at VanSicklen v. Burlington, Vansittart v. Taylor, «*' Van Swartow v. Com th, Vanvalkenburgh v. Torrey, Varin v. Edmonson, Yarney v. Justice, Vaughan v. Taff Vale R. Co., Vavasour v. Ormrod, Vcats v. Danbury, Veazie v. Cbina, Venango Nat. B'k Venour, In re, Verdin v. Wray, !j Vermont, The, , Vernon, The, j Verona's App., . . Victory v. Fitzpatnck, Vigo's Case, Vincent, Exp., ( Vining v. Bricker, Vinnedge v. Shaffer, Vinton v. Builders', &c, Ass'n, 45, Violett v. Sympson, Virginia, &c., R. R- Co. v. Lyon Co., Viseher v. Yates, Voorhees v. B'k of U. S., Von Schmidt v. Huntingdon, Vreeland v. Bramhall, W. Waddington v. Lond. Union, "Wade v. Strack, Wadham v. P. M. Gen., "Wadmore v. Dear, Wainright, Re, \Vaite v. Bingley, v. Jones, Wakefield v. Phelps, v. Smart, v State, Waldo v. Bell, Waldron v. Ritcbings, Wales v. Stetson, Walker, Be, V. Cincinnati, v. Chapman, v. Chicago, v. Clements, v. Geisse, v. Goe, V. Hall, Y. Horner, 86, 356, 238, 264, 227, 122, 128, 33, 23, Walker v. Oswald, v. Richardson, v. State, v. Wynne, Wall v. Dovey, v. Schneider, v. Slate, Wallace v. Atty-Gen., v. Blaokwell, v. Holmes, v. King, v. Miner, Wallgrave v. Tebbs, Walls v. McGee, Wain v. Philad'a, Walnut V. Wade, Walsh v. Boyle, v. Southworth, Walston v. Commonwealth, Waller's App., Walter v. Bechtol, Walton, Exp., v. Perkins, v. State, Wandsworth B'd of Works v. United Teleph. Co., Wanklyn v. Woullett, Wanger's App., Waustead B'd v. Hill, Warburton v. Loveland, Ward v. Beck, V. Gray, v. Hallam, v. Hohbs, v. Robins, v. Scott, v. Walters, v. Ward, Warden v. Dean, v. Tye, Ware v. Green, Warfield, Be, v. Fox, Warkworth, The, Warne v. Beresford, v. Varley, W'arnecke v. Lembea, Warner v. Armstrong, v. Commonwealth, v. Fowler, v. Murdoch, Warnock v. Davis, Warren v. Doolittle, Man'- Co. v. Ins. Co., v. Shuman, Warrington, Exp., v. Kurbor, Warshung v. Hunt, Wartman v. Pliila., Warwick v. White, Washburn v. Franklin, 543 556 282 213 477 192 682 242 550 523 439 227 201 228 703 706 547 139 392 281 635 447 22 453 227, 503, 23, 374, 388, 193, 174, 490 24 133 571 4 512 96 106 671 15 157 548 31 561 345 228 508 446 175 684 403 10/ 646 451 177 387 194 339 362 726 292 479 363 701 218 691 700, TABLE OF CASES. Ixv Washburn v. Mclnroy, Washer v. Elliot, Washington v. Page, &c, Road v. State, Water Cornm'rs v. Conkling, v. Hudson, Works Co. v. Burkhart, Waterford Peerage, R. R. Co. v. Logan, Waterhouse v. Keen, AVaterman v. Buekland, Waters v. Campbell, Waterton v. Baker, Watkins v. Major, v. Wassell, Watrous v. Blair, Watson v. Bailey, v. Blaylock, v. Kent, v. Martin, v. Mercer, Watton v. Watton, Watts v. Ainsworth, Waugh v. Middleton, Way°v. Way, Wayman v. Southard, Wayniell v. Read, Wayne Co.'s App., _ Co. v. Detroit, Co., 633, 639 555 255 254, 478 564 Wead v. Cantwell, Wear Nav. Com. v. Adamson,^ 152, Weatherhead v. Bledsoe, Weaver v. Lutz, Weavers' Co. v. Strange, Webb Be, v. Baird, v. Bird, v. Fairmanner, v. Knight, v. Manchester R. Oo., Webber, Ex.p., v. Quaw, Weber v. Weber, Webster v. French, v. Webster, Weed v. Snow, Weeks v. Hull, v. Weeks, v. Wray, Wehlenhamer v. Bertie, Weidner v. Matthews, Weil v. Calhoun, Weill v. Kenfield, 714 715,738, Weinman v. Pass. Ry. Lo., Weishrod v. Daenicke Weiss v. Mauch Chunk Iron Co., Welch v. Nash, Weldon v. Neal, v. Riviere, v. Winslow, Wells V. Iggulden v. L. & T. R v. Porter, v. R. R. Co., Welman, Be, Wendel v. Durbin, Wentworth's App., Wentz v. State, Wescomb's Case, Wesley Church v. Moore, West v. Blake, v. Coin' lb, v. Francis, v. Pickeismer, v. Pine, v. Simmons, West Br. Boom Co. v. Dodge Chic. Park Cornm'rs v. Bren- ock, . Ham. Overseers v. He*, Sarrisb , &c„ Ass'n v. Mor- oanthal, West. Pa. R- R Co.'s App. TJn Tel. Co. v. Axtel , v. District of Columbia, v.Kinney, 402,671 v. Pendleton, 462, 671 v. Reed, v. Steele, 350 279 390 390 258 472 463 333 701 617 130 181 122 21-2 705 13 529 106 259 140, 199, 405 496 259 80 405 154 455 6 462, 671 320, 451, 462, 671 303 505 198 517 484 467 153 237 226, 523 80, 128 651 42 693, Weisterv.Hade, 107,167,382,741,7^54 Welch v. Kline, Westbrook v. Blythe, v. Miller, Westbury v. Coston, Westcott v. Miller, Westfall v. Mapes, Westminster v. Gerrara, Westmoreland, The, Weston v. Arnold, Westover v. Perkins, Wethered v. Calcutt, Wetherell v. Jones, Wetmore v. Law, .^ Wetumpka v. Winter 4, 101, 105, M Weymouth v. Nugent, Whalen v. Gabel, Whartou Peerage, Wheaton v. Peters, Whedon v. Champlm, Wheeler v. Bates, v. Carpenter, v . Chicago, v. McCormick, v. Russell, v. Winn, Wheeling v Campbell, 169 524 156, 614 330 222 172 432, 620 166 644 143 229 !xvi TABLE OF CASES. Whelen's App., 196 Whidbome v. Kccles. Com., 157 Whipley v. Mills, 616 Whistler v. Forster, 337 Whitaker v. Haynes, 302 v. Pope, 685 v. Sinii h, 131 Whitchurch v. Fulham B'd, 206 Whitcomb v. Hood, 65, 513, 516 White, Exp., 369 v. Blum, 363, 364 v. Boot, 697 v. Coquetdale, 15 v. Crawford, 363 v. Germ. Ins. Co., 547 v. Hilton, 3' 1 v. Howard, 119 v. Haworth, 550 v. Ivey, 475, 574 v. Johnson, 292 v. McKeesport, 216, 612 v. Steel, 157 v. The Mary Ann, 142 v. White, 691 v. Wright, 193 Co. v. Key, 142, 143 Whitechurch v. East London Co., 28, 29 Whitehead v. Wells, 272 Whitehorne v. Thomas, 122 Wh'uehouse v. Fellowes, 550, 597 Whi'teley v. Chappell, 461 Whitfield v. Langdale, 37 WliiU.nl v. R. R. Co., 244 Whitney v. Eramett, 451, 624 v. Hapgood, 363 v. Whitney, 115, 442 Whittingham'8 Trust, 169 Whitwell v. Carter, 189 Wickbam v. Page, 349 Wieman v. Anderson, 592 Wiener v. Davis, 170, 474 Wigan v. Fowler, 86 Wilber v. Paine, 142 Wilberforce v. Hearfield, 158 Wilbraham v. Lndlow, 730 Wilbur v. Crane, 155,173,174 Wilcox v. State, 282 Wilder v. Haughey, 126 Wilderman v. Rodgers, 592 Wiley v. Crawford, 536, 644 Wilkes v. Hungerford Market Co., 674 Wilkes- Barre's App., ' 739 Wilkie v. Jones, 476 Wilkins v. Despard, 542 Wilkinson v. Evans, 483 v. Ketler, 265 v. Leland, 44, 401 Willard v. Pike, 620 Willets v. Rid^way, 621, 755 Willelt v. Boote, * 185 Willey v. Strickland, 213 Williams, Exp., 102,326,701 v. Cary, 439 v. Cheeney, 648 v. Ellis, 69 563 v. Evans 23, 445, 465, 470 v. G. W. R. Co., 492 v. Golding, 569 v. Harding, 372, 385 v. Jones, 121 v. Lake, 483 v.Lear, 512 v. Lords of Adm'y, 588 v. McDonal, 147,288 v. Mason, 141 v. People, 29, 44, 420 v. Poller, 292 v. Pritchard, 299 v. Roberts, 350 v. Smith ' 372 v. Tiedeman, 192, 194 v. Tilt. 191 Williamson v. Bailey, 645 v. Lane, 712 v. Maggs, 26 v. Mitchell, 532 v. R. R. Co., 363 Williamsport v. Brown, 282 v. Com'th, 590, 597 Willing v. Bozman, 308, 311 Willion v. Berkley, 223, 230 Willis v. Fincher, 391 v. Gipps, 84 v. R. R. Co., 486 v. Thorp, 570 Willock v. Noble, 155 Wills v. Audi, 475 v. Russell, 537 Willy v. Mulledy, 667 Wilmington, &c, R. R. Co. v. Reid, 69, 494 Wilraot v. Rose, 74. 82 Wilson, Re, 330 v. Briscoe 45 v. Halifax, 138, 186,403, 561 v. Hamilton, 207 v. Herbert, 178, 692 v. Hudson, 227 v. Knubley, 85, 444 v. Marryat, 119 v. Nightingale, 45 v. Palmer, 616 v. R. W. Sch. Distr., 371 v. Rankin, 646* v. Rastall, 206 v. Shorrick, 294 v. Spaulding, 74 v. State B'k, 619 v. W. Hartlepool Co., 445 v. Wall, 243 v. Wilson, 432 Wiltse v. State, 747 TABLE OF CASES. Lxvii Winch v. Cons's of the Thames, 599 Worth v. Peck, 407 Windley v. Bradway, 542 Wortherj v. Ratcliffe, 683 ,686 Winn v. Mossman, 87 Wray v. Ellis, 312 Winoosky v. Gokey, 706 Wright's Appeal, 197 Winslow v. Kimball, :;.-) Wright, Re, 106 v. People, 390 v. Bandy. 191 Winter v. Dickerson, 680 v. Cradlebaugh, 604, 713 v. Jones, 352 v. Frant, 415 Winterbottom v. Wright, 350 v. Graham, 384 Winterfield v. Strauss, 533 v. Greenroyd, 380 Wiseman v. Cotton, 565 v. Hale, 387, :;.ss Wistar v. Kain merer, 488 v. Hawkins, 706 Witliers v. Baird, 154 v. Legge, 595 Witherspoon v. Dunlap, 59 1 v. Lond. Omn. Co., 345 Withipole's Case, 529 v. Mills, 544 Witkouski v. Witkouski, 679 v. Monarch Invest. S oc'y, 161, Wolcott v. Pond, 107, 142 329 215 Wolf v. Lowry, 508 v. Nutall, 82 Wolfe v. Henderson, 448 v. Oakley, 694 Wolley v. Kay, 470 v. Pearson, 581 Wolverhampton Water W'ks Co. v. Remington, 2 15 v. Hawkesford, 624 v. Swan, 227 Wolverton v. Commonwealth J 532 v. Wallasey L. B'd., 333 Womelsdorf v. Heifuer, 4S7 v. Williams, 15 399 Wood, Re, 530 Wrightup v. Greenacre, 297 v. Chapin, 619 Wroughton v. Turtle, 478 v. Commonwealth, 548 Wyatt v. Metrop. B'd, 594 v. Duncan, 189 Wyman v. Brigden, 448 v. Elect'n Com'rs, 305, 306 v. Campbell, 281 v. Fort, 701 v. Fabens, 514 v. Heath, 329 Wyn v. Lvn, 251 v. Morehouse, 545 Wynn Hall Co., Re, 624 v. Mowing, &c, Co., 44 Wynne, Re, 701 v. Priestner, 37 v. Middleton, 471 v. Riley, 684 v. RowcIifTe, 160 v. U. S., 275 281 Y. v. Wall, 616 v. Westborough, 389 v. Wood, 20, Yarmouth v. Simmons, 253 472 Woodbury v. Berry, i 1,22 537 Yates' Case, 531 v. Freeland, 441 Yearwood's Trusts, Re, 278 Woodgate v. Godfrey, 195 Yeates v. Meadville, 356 Wood house v. Woods, 616, 628 629 Yeaton v. U. S., 681 Woodland v. Fuller, 544 Yerger, Exp., 281, 557 Woods v. Maine, 35 Yerkes v. Solomon, 194 Woodward v. L. & N. W. R. Co., 563 York's App., 509 v. Watts, 17 353 York v. Middlesborough, 83 Woodworth v. Payne's Adm'rs, 579, Co. v. Grafton, 80, 580 B'k v. Carter, 170, 474 v. State, 574, 576 577 & N. Midi. R. Co. v. R .,10 422 Woolsey, Re, 713, 756 757 Youghiogheny Shaft Co v. E vans 664 v. Brown, 559 Youle v. Mappin, 185, 320, 321 v. Cade, 515 Young v. B'k, 707 Woolworth Co. v. Whitewater, 306 v. Edwards, 491 Worcester v. Droitwich, 346 v. Gratridge, 574 Work v. Hoofnagle, 668 v. Higgon, 546 Workingmen's B'k v. Converse, 704 v. Hughes, 362, 381 B. A. v. Coleman, 615 v. Leamington, 626 Worms v. De Valdor, 234 v. Martin, 475 Worrell v. State, 408 v. McKenzie, 174 496 lxviii TABLE OF OASES. Zacharie's Succ'n, 227 Zacharie v. Godfrey, 698 Zi ckendorf v. Zeckendorf, 616 Zeigler v. R. R. Co., 604, 713 Zimmerman v. Cowan, 543, 544, 550 Zimmerman v. Erhard, 647 v. Schoenfeldt, 156 v. Turnp. Co., 678 Zollverein, The, 234, 239, 242 Zouch v. Empsey, 548 Zurn v. Noedel, 178, 592 Interpretation of Statutes. CHAPTER I. Literal Interpretation. § 1. Introductory. § 2. Primary Rule of Literal Interpretation. § 3. Common Law Meaning of Words. § 4. Language admitting of only one Meaning. § 5. Considerations of Policy. £ 6. Consequences. § 8. Language. Intent. Judicial Legislation. § 9. Application of the Principle of Literal Interpretation. § 17. Exceptions. § 18. Additions. § 23. Effect to be given to every word, etc. § 24. Insensible Enactments. § 1. introductory.— Statute law is the will of the Legis- lature ;' and the object of all judicial interpretation of it is 1 " Statute Law may, we think, " after a statute has been settled by be properly defined as the will of judicial construction, the construc- the nation expressed by the Legis- tion becomes, so far as contract lature, expounded by Courts of rights acquired under it are con- justice. The Legislature, as the cerned, as much a part of the stat- representative of the nation, ex- ute as tbe text itself, and a chuuge presses the national will by means of decision is to all intents und of statutes. Those statutes are purposes the same in its effect on expounded by the Courts so as to contracts as an amendment of the form the body of the Statute law by means of a legislative Law" (Wilberforce, Statute Law, enactment " (Douglass v. Pike Co., p. 8). It has been said, that, 101 U. S. 677, 687 ; and see much LITEKAL INTERPKETATION. [§1 to determine what intention is conveyed, either expressly 01 by implication, by the language used, so far as it is neces- sary for determining whether the particular case or state oi to the same effect as to settled and uniform practice and usage under a statute, Tayloe v. Thomson, 5 Pet. 358) ; so that, where a decision of the supreme judicial tribunal of a state announced a certain rule as resulting from the construction of a statute, and a contract was en- tered into upon the basis of that decision, it was held unaffected by a subsequent overruling of the decision (Geddes v. Brown, 5 Phila. [Pa.] 180). But the object of all judicial exposition of stat- utes is the ascertaining of the meaning of the language used by the Legislature. It neither adds to, nor changes its true signifi- cance, but discovers and declares the same. The statute, therefore, as expounded, is the law, and the aggregate of all statutes in force and the judicial expositions thereof form the body of the Statute Law of the state or nation. It is in this sense that the law is a solemn ex- pression of the will of the supreme power in the state (Cal. Pol. Code, § 4406). Where, however, the supreme law of the land is not the will of the Legislature, or the will of the people expressed by the Legislature, but the Constitution, it is not every statute, however clearly expounded, that is part of the law, but only such as conflict with no constitutional prohibition and conform to constitutional re- quirements. Whilst it is no part of the purpose of this work to enter upon questions of constitutional law, it is impossible to overlook this restriction in framing a proper definition, of what is, in this coun- try, statute law. " Statute law, by American definitions, is an act which is prescribed by the legisla- ture, or supreme power of the State " (Potter's Dwairis. on Stat- utes and Constitutions, p. 35). Irres- pectively of the obvious criticism that " statute law " cannot be "an act which is prescribed," but must be that which prescribes an act. it is submitted that this definition falls short of accuracy in that it overlooks the element of constitu- tional limitations and the identifica- tion of judicial expositions with the body of the statute law. It would seem that an acceptable definition of the latter would be that which describes statute law as being the will of the people con- forming with its constitution, ex- pressed, in accordance with consti- tutional requirements, by the Leg- islature, aud expounded by Courts of justice. This, however, is the body of the statute law, which, by its terms, includes the judicial ex- positions already made, of the individual statutes. The object of this treatise is to elucidate the principles upon which these expo- sitions that go to form part and parcel of the statute law of a state or nation are to proceed, in the individual cases in which they may be called for. The question, there- fore, should not be : What is stat- ute law ? — but, What is a statute ? A statute which lacks the formal requisites needful in order to give it the effect of a law, cannot fall under the construction of a court of justice as a law. It is not a statute within the meaning of a work upon the interpretation of statutes. But a statute which is unconstitutional in its objects, although it can form no part of the statute law of the state or nation, is nevertheless a statute for the purposes of construction, until ascertained to be void. A defini- tion of statutes, for this purpose, may consequently discard the ele ment of constitutionality, so far as relates to the substance of the en- actment (except, in so far as the presumption against unconstitu- tional design affects the construc- tion of the language : see post, §§ 178-181), but must take into account the element of constitutionality, so far as relates to the formal requi- sites of the enactment. It is be- lieved that the definition of a stat- ute as "The written will of the § 1] LITERAL INTERPRETATION. 3 facts presented to the interpreter falls within it. When the intention is expressed, the task is one of verbal construction only; but when, as occasionally happens, the statute expresses no intention on a question to which it gives rise, and on which some intention must necessarily be imputed to the Legislature, the interpreter has to determine it by inference grounded on certain legal principles. An Act, for instance, which imposes a penalty, recoverable summarily, on every tradesman, laborer and other person who carries on his worldly calling on a Sunday would give rise to a question of the former kind, when it had to be determined whether the class of persons to which the accused belonged was comprised in the prohibition. But two other questions arise out of the prohibition : is the offender indictable as well as punishable summarily ? and, is the validity of a contract entered into in contravention of the Act, affected by it ? On these corollaries or necessary inferences from its enactment the Legislature, though silent, must never- theless be held to have entertained some intention, and the interpreter is bound to determine what it was. The subject of the interpretation of a statute seems thus to fall under two general heads : what are the principles which govern the construction of the language of an Act of Parliament ; and next, what are those which guide the interpreter in gathering the intention on those incidental points on which the Legislature is necessarily presumed to have entertained one, but on which it has not expressed any. 3 Legislature solemnly expressed ac- vey. Construction, on the other cording to the forms necessary to hand, is the drawing of conclu- constitute it the law of the state " sions, respecting subjects that lie (2 Bouvier, Law Diet. p. 543), is beyond the direct expressions of the unexceptionable. And in this text, from elements known from sense the phrase "Statute law," and given in the text. Interpreta- in the opening sentence of this tion only takes place if the text work, is to be understood. conveys some meaning or other. 2 " Interpretation differs from But construction is resorted to construction in that the former is when, in comparing two different the art of finding out the true sense writings of the same individual, or of any form of words ; that is the two different enactments by the sense which their author intended same legislative body, there is to convey ; and of enabling others found contradiction where there to derive from them the same idea was evidently no intention of such which the author iuteuded to con- contradiction one of another, or LITERA \. INT KKPRKTATION. [§* § 2. Primary Rule of Literal Interpretation.— The first and raosi elementary rule of construction is, that it is to be amed that the words and phrases are used in their tech- nical meaning if they have acquired one, and in their popu- lar meaning if they have not, and that the phrases and sen- tences are to be construed according to the rules of gram- mar; and from this presumption it is not allowable to depart, unless adequate grounds are found, either in the context or in the consequences which would result from the literal interpretation, for concluding that that interpretation does not give the real intention of the Legislature (a). [It is said that the fixed technical meaning of a word must be given to it when used in a statute, unless the context shows an intention to use it in a different sense ; s whilst, under a similar limitation* words of common use 5 are to be under- whcre it happens that part of a writ- ing or declaration contradicts the rest. When lliis is the case, and the nature of the document or declaration, or whatever else it may he, is such as nor, to allow us to consider the whole as hein»; invali- dated by a partial or other contra- diction, then resort must be had to construction ; so, too, if required to act in cases which have not been foreseen by the framers of those rules, by which we are neverthe- less obliged, for some binding reason, faithfully to regulate as well as we can our action respecting the unforeseen case, in common use, however, the word construction is generally employed in the law in :i sense embracing all that is proper- ly covered by both when each is used in a sense strictly and techni- cally correct:" Cooley, Const. Lim. 49-50, — and, it may be added, in common use, the words con- 8iruction and inU rpn ititi Kate Heron, 6 Sawyer 106. Fisher v. Bright, 2 Crunch, 399. '• Western Un. Tel. Co. v. District | Sedgw., 194 ; Case v. Wildridge, of Columbia, 2 Centr. Rep. 094. 4 lud. 51.] Law of W, b. 2, s. 2(33- 19 George v. B'd of Educ'n, 33 (6)2 Inst. r,33. Ga. 344. (c) Per Buller, J., in R. v. Hod- §4] l.I I ERAL I VI BRPRETATION. to what they suppose to have been the real intention of the law makers. 30 Where the words of a statute are plainly ex- pressive of an intent, not rendered dubious by the context, 21 the interpretation must conform to and cany out that intent." It matters not, in such a case, what the consequeuces may be." " It has, therefore, been distinctly stated, from early times down to the present day, that judges arc not to mould the language of statutes in order to meet an alleged con- venience or an alleged equity ; are not to be influenced by any notions of hardship, or of what in their view is right and reasonable or is prejudicial to society; are not to alter clear words, though the Legislature may not have contemplated the consequences of using them ; are not to tamper with words for the purpose of giving them a construction which is 'supposed to be more consonant with justice' than their ordinary meaning." 24 ] Where, by the use of clear and un- equivocal language, capable of only one meaning, anything is enacted by the Legislature, it must be enforced, even though it be absurd or mischievous (a). If the words go beyond what was probably the intention, effect must never- theless be given to them (b). They cannot be construed, 20 Newell v. People, 7 N. Y. 97 ; Barsto-w v. Smith, Walk. (Mich.) 394 ; Bidwell v. Whittaker, 1 Mich. 469 ; and see also McCluskey v. Cromwell, 11 K Y. 593. 21 Douglass v. Chosen Freehold- ers, 38 N. J. L. 214. 22 Bradbury v. Wagenhorst, 54 Pa. St. 182; S. P., U. B. v. War- ner, 4 McLean, 403 ; U. S. v. Rags- dale, Ilempst. 497 ; Johnson v. R. R. Co., 49 K Y. 455 ; People v. Shoonmakcr, 63 Barb. (N. Y.) 49 ; Pearce v. Atwood, 13 Mass. 324 ; Doane v. Phillips, 12 Pick. (Mass.) 223 ; Bartlett v. .Morris, 9 Port. (Ala.) 206 ; Howard Associa- tion's App., 70 Pa. St. 344 ; Farrcll Foundry v. Dart, 26 Conn. 376 ; Fitzpalrick v. Gibhart, 7 Kan. 35 ; State v. Washoe Co., 6 Nev. 104. 23 Hyatt v. Taylor, 42 N. Y. 259; Benton v. Wickwire, 51 Id. 226 ; Rosenplaenler v. Rossele. Id. 262 ; Rogers v. Goodwin, 2 Mass. 475 ; Lfangdon v. Potter, 3 Id. 215, 221 ; Gore v. Brazier, Id. v. V. v. 523 ; Ayers v. Knox, 7 Id. 306 Putnam v. Longley, 11 Pick. (Mass.) 487, 490 ; Kirlpatrick v. Byrne, 25 Miss. 57; Tyman v. Walker. 35 Cal. 634 ; Collin Rich. 45 Me. 507; Encking Simmons, 28 Wis. 272 ; Collins Carman, 5 Md. 503 ; Bosley Matiingley, 14 B. Mou. (Ky.) 89 ; Dudley v. Reynolds, 1 Kan. 285 ; R. v. Tollbridge Overseers, L. R. 3 Q. B. D. 342 ; and see cases in two preceding nolo. 24 Wilberforce, Stat. Law, p. 116. (a) Per Lord Campbell in R. v. Skeeu, 28 L. J. M. C. 94, Bell, 97 ; per Jervis, C. J., in Abley v. Dale, 11 C. B. 391, 2 L. M. & P. 443, 21 L. J. 104 ; per Pollock, C. B., in Miller v. Salomons, 7 Ex. 475, 21 L. J. Ex. 197 ; per Lord Brougham in Gwynne v. Burnell, 6 Bing. N. C. 559 ; Re British Farmers, &c. Co., 48 L. J. Ch. 56. and Crawford v. Spooner, 6 Moo. 9. See Sneed V. Coin., 6 Dana < r Erskine, J. ; 20 L. J. 362. [See post, § 8.] May v. Grant, L. R, 7 Q. 1!. 377. " Hadden v. Collector, 5 Wall. (c) Per Lord Ellenborougb in R. 107 ; Munic. Build. Soc'y v. Kent, v. Watson, 7 East, 214, and R. v. L. R. 9 App. Cas. 273. Staffordshire, 12 East, 572; R. v. 2S Hadden v. Collector, supra; Hodnett, 1 T. R. 100, per Lord Hyatt v. Taylor, 42 N. Y. 259; Mansfield; R. r. Worcestershire, Horton v. School Comm'rs. 43 Ala. :; I» A; D. 465, 12 A. A E. 283, per 598; Com'lh v. Shopp. 2 Woodw. Lord Denman ; per Bramwell, B., (Pa.) 123 ; Be Powers, 25 Vt. 205 ; in Archer v. James, 2 B. & S. 61 ; State v. Liedke, 9 Neb. 408; Miller r. Salomons, 7 Ex. 475. per Reynolds v. Holland, 35 Ark. 56 ; Pollock, C. B. ; Exp. At! water, 5 Miller v. Childress, 2 Humph. Oh. D. 30, per James L. J. (Tenn.) 320. .§ 6] LITERAL INTERPRETATION. 9 must be deemed its own sufficient and conclusive evidence of the justice, propriety and policy of its passage. 29 The language of Mr. Justice Story, concerning constitutional con- struction, applies almost equally to that of statutes : " Argu- ments drawn from impolicy or inconvenience ought here to be of no weight. The only sound principle is to declare ita lex scripta est, to follow and to obey ; nor, if a principle so just could be overlooked, could there be well found a more unsafe guide or practice than mere policy and convenience. Men on such subjects complexionally differ from each other. The same men differ from themselves at different times. . . . The policy of one age may ill suit the wishes or the policy of another." 30 ] § 6. Consequences.— It has been said that though vested rights are divested, those who have to interpret the law must give effect to it (a). And they are bound to do this even when they suspect (on conjectural grounds only) that the lano-uaire does not faithfullv express what was the real in- tention of the Legislature when it passed the Act, or would Jiave been its intention if the specific case had been proposed to it. [" Even when a court is convinced that the Legisla- ture really meant and intended something not expressed, by the phraseology of the Act, it will not deem itself author- ized to depart from the plain meaning of the language which is free from ambiguity." 31 ] "It may have been an over- sight in theframers of the Act," says Parke, B., in one case, "but we must construe it according to its plain and obvious meaning" (b). [Though the consequence should be to 29 *Flint, &c, Co. v. Woodhull, can, of course, be no more 25 Mich. i)9. S. P., People v. Hay- "cogent evidence," than the plain, den, 50 N. Y. 525 ; People v. unambiguous language of the Briggs. Id. 553; Be Lower Chat- Legislature itself. ham, 35 2s. J. L. 497 ; Jewell v. (a) Midland R. Co. v. Pye, 10 Q. Weed, IS Minn. 272 ; and see B. N. S. 179, per Erie, C. J. [See Baxter v. Tripp, 12 R. I. 310. post, £ 2S3.] s0 Story, Const., §426; post, §<$ "Smith v. State, 66 Md. 215, 507,524. See Jersey City, etc. Co. v. 217. S. P., Bradbury v. Wagen Consumer's Gas Co., 40 N. J. Eq. horst, 54 Pa. St. 182 ; Wood- 427, where it is said, that, in the bury v. Berry, 18 Ohio St. construction of a statute, a purpose 456. And see St. Louis, etc. R. to disregard whai is recognized as R. Co. v. Clark, 53 Mo. 214 ; sound public policy, shall not be Hicks v. Jamison, 10 Mo. App. 35. attributed to the Legislature except (b) Nixon v. Phillips, 21 L.J. upon most cogent evidence. There Ex. 90, 7 Ex. 192. 10 LITERAL INTERPRETATION. [§ 7 defeat the object of the act, a construction not supported by the language of it cannot be imposed by the court in order to effectuate what it may suppose to be the intention of the Legislature. 32 ] "Our decision," says Lord Tenterden (a), "may, in this particular case, operate to defeat the object of the Act; but it is better to abide by this consequence than to put upon it a construction not warranted by the words of the Act, in order to give effect to what we may suppose to have been the intention of the Legislature." [A fortiori, where a statute, in langunge, clear, positive and direct and leading to no absurdity, gives a suitable remedy for an existing evil, though an inadequate one, a construction, which, upon the ground of a supposed intention of the Legislature to give a more effectual one, would undertake to enlarge the terms of the Act, would be unwarranted; 83 and especially in the case of penal statutes, a failure of justice resulting from the grammatical and natural meaning of their terms cannot be obviated by a construction which would extend the language beyond such meaning. 31 Again,] "I cannot doubt," says Lord Campbell, (h) "what the intention of the Legislature was; but that intention has not been carried into effect by the language used. ... It is far better that we should abide by the words of a statute, than 6eek to reform it according to the supposed intention." " The Act," says Lord Abinger, in another case (c), " has practically had a very pernicious effect not at all contem plated ; but we cannot construe it according to that result." § 7. In short, when the words admit of but one meaning, a Court is not at liberty to speculate on the intention of .the Legislature, or to construe an Act according to its own notions of what ought to have been enacted (d). Nothing 82 Frye v. R. R. Co., 73 IS. 399 ; M. & W. 395. See also per Lord Leoni v. Tavlor, 20 Mich. 148. Denniau, in It. v. Mabe, 3 A. & J:. (a) It. v. Barham. 8 15. & C. 99 ; 031. and see per Bsiyley, J., in It. v. 35 See a most able discussion of Bloke Dumarel, 7 B. & C. 509. the principle under examination in Ezekiel v. Dixon, 3 Ga. 14G. the dissenting opinion of -Mr. Jus- 84 Remington v. Slate, 1 Oreg. tice Green, in Penna. R. R. Co. v. 281. And see post, § 155. Pittsburgh, 104Pa. St.522, 5 13, seq. (/>) Coe v. Lawrence, 1 E. & B. ('0 Per Cur. in York & Is". Mid- 51 (i. 22 L. J. 140. land It. Co. v. R., 1 E. & B. 864,. (c) Atty. Genl. v. Lockwood, 9 22 L. J. Q. B. 230. ?53i § 8] LITERAL INTERPRETATION. 11 could be more dangerous than to make such considerations the ground of construing an enactment that is quite com- plete and unambiguous in itself. [" The moment we depart from the plain words of the statute, according to their ordinary and grammatical meaning, in a hunt for some intention founded on the general policy of the law, we find ourselves involved in a ' sea of troubles.' Difficulties and contradictions meet us at every turn.'-" Indeed,] to depart from the meaning on account of such views, is, in truth, not to construe the Act, but to alter it (a). But the business of the interpreter is not to improve the statute; it is, to ex- pound it. [Whilst he is to seek for the intention of the Legislature," that intention is not to be ascertained at the expense of the clear meaning of the words. 88 ] The question for him is not what the Legislature meant, but what its language means (b). § 8. Language. Intent. Judicial Legislation. — [It is inaccu- rate to speak of the meaning or intent of a statute as some- thing separate or distinct from the meaning of its language. " The intention of the Legislature is to be ascertained by means of the words which it has used, and though these words are often modified, though their literal sense is not always adopted, though they are sometimes strained, trans- ported, treated as inadequate or as superfluous, they are still the only interpreters of the mind of the Legislature." 39 " Index animi sermo." 40 " The court knows nothing of the intention of an act, except from the words in which it is expressed, applied to the facts existing at the time ;'*" " the meaning of the law being the law itself." 44 It is upon this ground that the rule must have its rational foundation, 36 Dame's App. 62 Pa. St. 417, per Cockbtirn, C. J., in Palmer v. 422, per Sharswood, J. Thatcher, 3 Q. 13. D. 353, 47 L. J. (n) Per Lord Brougham in M. C. 58 ; per Lord Coleridge, in Gwynne v. Burnell, 6 Bing. N. C. Coxhead v. Mullis, 3 C. P. D. 439, 5G ; per Lord Westburyin Exp. St. 7 L. J. 761. Sepulchre's. 33 L. J. Ch. 373 ; per 39 Wilherforce, Stat. Law, p. Grove, J., in Allkins v. Jupe, L. 102. R 2 0. P. 385. 40 Ed rich's Case, 5 Rep. at p. si James v. Patten, 6N. Y. 9, 13. 118 b. 38 Lconi v. Taylor, 20 Mich. 148; "Logan v. Earl Courtown, 13 S. P., Frye v. R. R. Co., 73 111. Beav. 22. 390. 42 Reiser v. Saving Fund Ass'n,„ (6) Wigram, Interp. Wills, p. 7 ; 39 Pa. St. 137, 144. 12 L1TEEAL INTEBPBETATION. [§ 9 which, where the words can bear but cue meaning, declares that there is no room for interpretation. If the construc- tion of a statute were not essentially the construction of its language, there could be no reason for binding a court to the clear meaning of an act working an injustice or incon- venience unforeseen by the Legislature. Yet it is clear, that,] to give it a construction contrary to, or different from that which the words import or can possibly import, is not to interpret law, but to make it ; and Judges are to remem- ber that their office is jus dicere, not jus dare (a). [Every departure from the clear language of a statute is, in effect, an assumption of legislative powers by the court. 43 It has, indeed, been intimated that this is the case wherever the court permits the consideration of consequences to dictate the construction of a doubtful act. 44 " The judge must decide, but the law has not spoken. It is evident that his functions necessarily become to a certain extent legisla- tive." 45 It is submitted, however, that this is inaccurate. If the judge were to guess at the interpretation, and arbi- trarily fix the result, no doubt it would be true that he would be assuming the functions of a legislator. But so long as the interpretation of an ambiguous enactment pro- ceeds upon ascertained legal principles, which " those who were or ought to have been learned in the law ' : must be supposed to have understood, 46 and with reference to which the act must be presumed to have been framed and passed, it cannot be said that the result is a new law, or even a departure from the language of the statute construed. It is simply giving effect to that language as understood in the light of recognized rules and presumptions relating to legislative language.] § 9. Application of the Principle of Literal Interpretation. — Though this rule appears so obvious, it is so frequently (a) Lard Bacon, Essay on Judica- 44 See Dudley v. Reynolds, 1 ture. Per Pollock, (J. 15., in Rod- Kan. 285. rigues v. Melluisb, 10 Ex, 116. * 5 Sedgwick, Const r. of Stat. & [Poor v. Considine, Wall. 4.")S. | Const., p. 266. "Brewer v. Bloutrher, 14 Pet. * 6 See Brocket v. It. II. Co.. 14 178; Cearfoss v. State, 42 M<1. Pa. St. 241, 24;}; Com'th v. 403 Chnrckill, 2 Met. (.Mass.) 118 ; State v. Brooks, 4 Couu. 410. §9] LITERAL INTERPRETATION. 13' appealed to that it is advisable to illustrate it by some exam- ples to show its general scope and the limits of its applica- tion. It was repeatedly decided at law (a), for instance, that the statutes of limitations which enact that actions shall not be brought after the lapse of certain periods from the time when the cause of action accrued, barred actions brought after the time so limited, though the cause of action was not discovered or, practically, discoverable by the injured party when it accrued, or was even fraudulently concealed from him by the wrong-doer, until after the time limited by the Act had expired (b). The hardship of such decis- ions is obvious, but the language admitted of no other con- struction. [Even where a survey, the making of which would have had the effect of taking the case out of a statute of limitations, was prevented by legislation, the court refused to admit an exception. 47 ] So, if an Act provides that convictions shall be made within a certain period after the' commission of the offense, a conviction made after the lapse of that period would be bad, although the prosecution had been begun within the time limited, and the case had been adjourned to a day beyond it, with the consent, or even at the instance of the defendant (c). So, when an Act (a) Before the Judicature Act of now generally abandoned:" Sedg- 1873 (s. 24). wick, Constr. of Stat., &c. ]>. 277, (b) Short v. McCarthy, 3 B. & citing Dozier v. Ellis. 28 Miss. 730; A. 626; Brown v. Howard, 2 B. & Mclver v. Regan, 2 Wheat. 2:. B. 73 ; Colvin v. Buckle, 8 M. & See also Allen v. Miller, 17 Wend W. 680 ; Imperial Gas Co. v. Lou- (N. Y.) 202. But see First Mass. don Gas Co., 10 Ex. 39; Bonomi Tump. v. Fisher, 3 Mass. 201; v. Backhouse. E. B. & E. 622, 27 Homer v. Fish, 1 Pick. (Mass.) L. J. Q. B. 378, 28 L. J. 380, 34 L. 435.] J. 181, 9 H. L. 503; Smith v. Fox, 41 Mclver v. Regan, 2 Wheat. 6 Hare, 3S6 ; Violett v. Sympson, 25. 27 L. J. Q. B. 136 ; Hunter v. Gib- (c) R. v. Bellamy. 1 B. & C. 500 ; bous, 1 11. & N. 459; Lamb v. R. v. Tolley, 3 East, 467 ; Bellew Walker, 3 Q. B. D. 389. As to v. Wonford, 9 B. & C. 135 ; Farrell concealed fraud, see the cases in v. Tomlinson, 5 Bio. P. C. 438 ; equity collected in Ecclesiastical Adam v. The Inhabitants of Bris- Commissioners v. N. E. R. Co., 4 tol, 2 A. & E. 389 ; R. v. Mainwar- Ch. D. 815. and since the Judica- ing. E. B. & E. 47 1. 27 L. J. M ture Act of 1873, Gibbs v. Guild, C. 27S. | See West v. Comm'th, 2 9Q. B. D. 591, 51 L. J. Q. B. Woodw. (Pa.) 61. where a judg- 313. See also Kirk v. Todd, 21 ment entered on March 27, 1871, Ch. D. 484. [" The idea that in pursuance of an agreement of implied and equitable exceptions, counsel made March 21, to take which the Legislature has not up the case on that day for argu- made, are to be engrafted by the ment, was reversed on certiorari, courts on a statute of limitations is the offence having been committed. 1 14 LITERAL INTERPRETATION. [§ 10 gives to persons aggrieved by an order of justices, a certain period after the making of the order, for appealing to the Quarter Sessions, it has been held that the time runs from the day on which the order was verbally pronounced, not from the day of its service on the aggrieved person (a). Even when the order is made behind his back, as in the case of stopping up a road, the time runs from the same date, and not from the day on which he got notice of it (J), not- withstanding the manifest hardship and injustice resulting from such an enactment (c). § 10. The Welsh Sunday closing Act of 1881, being fixed to come into operation on the day u next appointed " for the annual licensing meeting, was by a literal construction post- poned for a year later than was, in all probability intended ; but the Court refused to avert this result by any departure from the primary meaning of the words (d). If an Act of Parliament provides that no deed of apprenticeship shall be valid unless signed and sealed by justices of the peace, the omission of the seal would be fatal to the validity of the instrument (e). [So, under a statute requiring the certificate of a married woman's acknowledgment of a written instru- ment to be under seal, the absence of a seal renders the in- strument invalid. 48 ] The Bills of Sale Act requiring an affidavit of the due attestation as well as of the execution of the deed, the omission in the former to mention the attes- tation was held fatal, although the attestation clause of the deed asserted it (/). It would not be open to the interpreter September 18, 1870, and the gov- (e) R. v. Stoke Damarel, 7 B. & erning statute requiring the con- C. 563. See also R. v. Mellingham, viction to be made within six 2 Bott. 492 ; R. v. Margram, 5 T. months after the commission of the R. 153 ; R. v. St. Peter's, 1 B. & offence ] Ad. 910 ; R. v. St. Paul's, 10 B. & («)R. v. Derbyshire, 7 Q. B. 193; C. 12; R. v. Staffordshire, 23 L. R. v. Huntingdonshire, 1 L. M. & J. M. C. 17. P. 78; Exp. Johnson, 3 B. & S. " 8 McLaurin v. Wilson, 10 S. C. 947; R. v. Barnett, 1 Q. B. D. 402. r,r,<- mm}.. R. v. Shrewsbury. 1 (f) Ford v. Kettle, 9 Q. B. D. E. & B. 711, 22 L. J. M. C. 98. 139. [So, in innumerable cases, (b) R. v. Staffordshire, 3 East, in this country, where statutes 151. require separate acknowledgements (c) Per Lord Ellenborough, Id. by married women of the free 153. execution of conveyances of their (d) Richards v. McBride, 51 L. property interests, and the affixing J. M. C. 15. of a certificate by the magistrate § 10] LITERAL INTERPRETATION. 15 in such cases, to shut his eyes to the formalities required, because lie deemed them unimportant, or because a hardship or failure of justice might be the consequence, in the par- ticular case before him, of a neglect of any of them. An Act which enacted that a pilot was to deliver up his licence to the pilotage authorities " whenever required to do so," would call for implicit obedience to the letter, however arbitrarily the power which it conferred might be misused, and although the withdrawal of the license would in effect amount to a dismissal of the pilot from his employment (a). The Prescription Act, making all easements indefeasible which were enjoyed for a number of years " next before some suit or action wherein the claim or matter" was brought in question, was held to leave the title to every easement inchoate only, no matter how long it had been uninterruptedly enjoyed, until a suit or action was brought, when it ripened into a complete right (&). The Act which provided that if the occupier assessed to a rate ceased to occupy before the rate was wholly discharged, the overseers should enter his successor in the rate book, and the outgoer should not be liable for more than his due proportion, was held not to relieve him from the rest of the rate, when the premises remained unoccupied after his removal (. 302. (e) Pinkerton v. Easton, L. R. 16 (c) Christopher'son v. Lotinga, Eq. 440. 15 C. B. N. S. 809 ; comp. Kings- R 14] LITERAL INTERPRETATION. 10 section preceded the one next before it, the language of the statute, which, read in the order of its clauses, pre- sented no ambiguity, although it resulted in what was termed by dissenting members of the Court an absurdity, viz., the giving of an intestate's estate, not to his next of kin, but to his brothers and sisters, instead of his own children. 03 By adopting the construction which would have read the fifth section as preceding the fourth, " instead of adjudicating," says Mr. Justice Swayne, " we should legislate. . . Our function is to execute the law, not to make it." 64 And following the same rule of literal construction, it was held that the phrase " and have the casting vote " gave the chairman to whom it applied a casting vote, in addition to his previous vote as a member upon the same question, i. 1 ; Freeman 9l Com'th v. Laws, 7 W. N. C. v. Tranch, 12 C. B. 406, 21 L. J. (Pa.) SO ; Stoops v. Post, 15 Id. 214. [But under an act which 170 26 LITERAL INTERPRETATION. [§ 19 "indictment" for perjury, left them excluded in "informa- tions" for perjury tiled by the Attorney-general (a). §19. When the Common Law Procedure Act of 1852 abolished the writ of distringas without providing for the service of a writ on lunatics in confinement and inaccessible, it was found that no actions could be prosecuted against them (b). So, when extra-parochial places were made rate- able without either repealing the enactments which required that a copy should be affixed on or near the doors of all the churches in the parish, or making any other provision for publication, it was held, where there was no church in the extra parochial place, that a rate affixed on a church door fifty yards from the boundary was not valid for want of publication (c). The 4 & 5 W. & M. c. 20, which required that judgments should be docketted, enacted that undock- etted judgments should not affect lands as regarded pur- chasers or mortgagees, or have preference against heirs or executors. The 2 & 3 Vict. c. Unabolished docketting, and enacted that no indinnent should have effect unless re. J. Ex. 5. See Judic. (v the purpose, the court refused to read the Act as limiting the exercise of the power to a reasonable time (a). The 21 Jac. 1, having provided that the Statute of Limitations should not run while the plaintiff was beyond the seas, and the 4 & 5 Anne having made a similar provision where the defendant was abroad, the 3 & 4 W. 4, c. 42, enacted that no part of the United Kingdom should be deemed beyond the seas within the meaning of the former Act, but made no mention of the latter; and it was held that it could not be stretched to include it (b). There may have been no good reason for thus limiting the new enactment to the Act of James ; but there was no sufficient ground either in the context or in the nature of the consequences resulting from the omission, for concluding that the Act of Anne was intended to be included. So when the Married Women's Property Act of 1S70 empowered a married woman to sue, without making her liable to be sued, it was held that no action lay against her (c). The Habitual Criminals' Act, in enacting that upon a trial for receiving stolen goods, a previous conviction for any offense involving dishonesty should be admissible against, the prisoner as evidence of his having received with guilty knowledge, provided that notice were given to him that the conviction would be put in evidence " and that he would be deemed to have known that the goods were stolen until he proved the contrary/' 92 See Hull v. Hull, 2 Strobh. 7 "Wheat. 115 : McFarland v. Stone, Eq (S C.) 174. But see Maxwell 17 Vt. 173, and see post, § 327. See v. State. 40 Md. 273, 292. 298, as Burden v. Slein. 25 Ala. 455 that to power of court to assume and when a statute requires notice to supply an omission in a long and be given and specifies do particular complicated act. lengtii of time.it is construed to (a) Bradley v. Greenwich Board, mean a reasonable time. | 3Q.RD.3s4. [Soil is said in Mar- (b) Lane v. Bennett. 2 C. M. & tin v. Robinson, 07 Tex. 3GS. that, R. 70 ; Battersby v. Kirk, 2 Ding, where an act does not fix a time N. 0. 584. after which administration shall (c) 33 A: 34 Vict. C 93, s. 11 ; not be opened, the courts cannot Hancock v. Lahlache, 3 C. P. D legislate by fixing an arbitrary 197. time. Conip. liicard v. Williams, 28 LITERAL INTERPRETATION. [§ 21 omitted, however, to enact substantively that this effect should be given to the conviction; and it was held that the omission could not be supplied (a). Without such an emen- dation, the notice was incorrect and misleading ; but it did not lead to any injustice or inconvenience or other mischievous consequence. So, although the Bills of Sale Act of 1878 required that the execution of every bill of sale should be attested by a solicitor, and that " the attestation should state" that the instrument was explained by the solicitor to the grantor before execution, it was held that no explana- tion was required ; for the Act did not expressly enact that an explanation should be given ; it required only that the attestation should assert that it had been given (h). [So, where an act required certain wills to be executed in the " presence " of two witnesses, it was held that they need not attest the execution of the instrument by subscribing the same as witnesses, the law merely requiring their pres- ence. 93 ] § 21. Where a railway Act provided that the company, while in possession, under the Act, of lands liable to assess- ment to parochial rates, should, until its works were com- pleted and liable to assessment, be bound to make good the deficiency in the parochial assessment by reason of the land having been taken, it was held, at first, that the company was bound to make good the deficiency in any one of the parishes through which the line ran, only until the line was completed within the parish (c) ; but this construction was rejected by the Queen's Bench and by the Exchequer Chamber, partly on the ground that in effect it introduced the words " in the parish " into the Act ; and it was held that the company continued liable to make good the defi- . (rt) R. v. Davis, 1 C. C. R. 272, interest; a "credible" one, one 39 L. J. 135. who is not disqualified to testify. (w) Repealed by 45 & 46 Vict. c. An employe of a charitable insti- 43, s. 10; Exp. National Merc, tution, a legatee under a will, was, Bank, 15 Cb. D. 43. See also Exp. therefore, held to be a disinterested Bolland, 21 Ch. D. 543. and credible witness to the execu- 93 Combs' App., 105 Pa. St. 155. tion of the will. A "disinterested " witness is there (c) Whitechurch v. East London said to be one who has no lesral Co. L. R. 7 Ex. 248. §§22,23] LITERAL INTERPRETATION. 29 cieney in every parish until the whole line was completed from end to end (a). § 22. [It lias been seen 94 that the plain meaning of the language used in a statute will not be departed from in its construction, though the purpose of the enactment be defeated by following it. Upon the same principle, courts cannot supply legislative defects and omissions, although, by reason of such, the statute becomes, in whole or in part, practically unenforceable or inoperative. So, an act which authorized municipalities, according to a procedure therein described, to open and widen streets, and prescribed a pro- cedure for the opening, but none for the widening of the same, was held to that extent inoperative. 95 ] § 23. Effect to be given to Every Word, etc. — A Construction which would leave without effect any part of the language, would be rejected, unless justified on similar grounds (A). [And the fact that a given construction would make a word redundant is some reason for its rejection ; 96 for, it being presumed, wherever such a presumption can be sustained, that the Legislature meant precisely what it said, 97 no word in it is to be treated as unmeaning, if a construction can be legitimately found which will preserve it and make it effectual. 98 And the same rule forbids the rejection, as meaningless or superfluous of any sentence or clause of a statute. 99 ] Thus, where an Act plainly gave an appeal from (a) R. v. Metrop. Distr. R. Co., Leversee v. Reynolds, 13 Iowa. L. R. 6 Q. B. 698 ; Whitechurch v. 310 ; Brooks v. Mobile Sch. Com'rs, East London R. Co., L. R. 7 Ex. 31 Ala. 227 ; Williams v. People, 248; reversed, however, 7 H. L. 17 III. App. 274 ; James v, Dubois, 89. 10 N. J. L. 285 ; Murray v. Keves, 94 See ante, §6. 35 Pa. St. 384 ; Com'th v. Sudpp, 95 Chaffee's App., 56 Mich. 044. 1 Woodw. (Pa.) 123 ; San Francisco And see Pillow v. Gaines, 3 Lea v. Ilazen, 5 Cal. 169 ; People v. (Tenn.)466. King, 28 Id. 265; Attv. Gen. v. (6) See inf ra, §§ 295 et seq. Plank Road Co., 2 Mich. 138; 90 Dearborn v. Brooklvne, 97 People v. Burns, ."> Id. 1 14 ; Rawson Mass. 406; Gates v. Salmon, 35 v. Slate, lit Conn. 292; Hartford Cal. 570 ; Parkinson v. State, 14 Bridge Co. v. Lnion Perry, 2!) Id. Md. 184. 210; Butchin v. Niblo, 4 Blackf. 91 Montclair v. Ramsdale, 107 (Ind.) 1 is ; Hagenbuck v. Reed, 3 U. S. 147. Neb. 17 ; State v. Babcock, 21 "Dibblee & Co's Case, 3 Ben. Id. 599; Torrey sou v. Examiners, 283 ; Davis" Case, Id. 482 ; U. S. v. 7 New 19: Lacey v. Moore, 6 Warner, 4 McLean, 463 ; Com'th v. Coldw. (Tenn.) 348; Aldridge v. Alger, 7 Cusli. (Mass.) 53,89 ; Op. Mardnff, 32 Tex. 204. of Justices, 22 Pick. (Mass.) 571 ; 99 See Hagenbuck v. Reed, 3 30 LITERAL INTERPRETATION. [$ 24 one Quarter Sessions to another, it was observed that such a provision, though extraordinary and perhaps an oversight, conld not be eliminated (a). The 82 & 33 Vict. c. 51, which gives to certain County Courts power to try claims under £300, arising out of" any agreement in relation to the use or hire of a ship," or in relation to the carriage of goods, with an appeal to the Court of Admiralty, and power to the latter Court to transfer any such causes to itself, was at first held not to give the County Court juris- diction over suits for the breach of a charter-party notwith- standing the comprehensive nature of the language used ; on the ground that the literal constructon would involve the presumedly unintended anomalies of giving by mere impli- cation a large, novel, and inconvenient jurisdiction to the Court of Admiralty, and to the suitor the remedy of proceeding in rem when his claim was under £300, which he did not possess when it exceeded it (b). But this con- struction did not prevail, because it left without effect the words which gave jurisdiction over any agreement in relation to the use or hire of a ship (c) ; and yet it was difficult to believe that the resulting consequences were within the contemplation of the Legislature or the scope of the enact- ment. [A fortiori, is this construction imperative when it results in nothing unreasonable. Thus the literal construc- tion of an act which submitted the question of the organization of a new county to the vote of the electors of the three counties from which the new one was to be taken, " at township meetings to be held in said county," required the submission of the question to the electors of the three counties residing in the territory which was to compose the new county. 100 ] § 24. Insensible Enactments Where the language is precise and unambiguous, but at the same time incapable of reason- able meaning, and the Act is consequently inoperative; a Court is not at liberty to give the words, on merely conjee- Neb. 17 ; Murray v. Keyes, 35 Pa. 10 Ex. 65. St. 384. (c) Gaudct v. Brown, L. R. 5 P. (a) \l.v. West Riding, 1Q. B. 329. C. 134; The Alina, 5 P. D. 138, (b) Simpson v. Blues, L. R. 7 C. 49 L. J. 40. P. 290 ; Guunestad v. Price, L. R. 10 ° People v. Burns, 5 Mich. 114. ft 2-}.] LITERAL INTICKl'KETATION. 31 tural grounds (a), a meaning which docs not belong to them. [In other words, where the language of a statute is'so devoid of certainty as to render it impossible to ascertain the result intended to be achieved, it cannot be assumed that it was in- tended to give the court, as the interpreter of the statute in the last resort, a power to control the event. 101 ] Thus, where an Act made warrants of attorney to confess judgment void as against the assignees of a bankrupt, if not tiled within twenty-one days from execution, or unless judgment was signed "or" execution was "issued" within the same period ; the Court of Queen's Bench refused to alter " or" into "and," and "issued " into " levied ; " though the pas- sage was unmeaning as it stood, and the proposed alterations would have given it an effect which, because rational, was probably, but only conjecturally, the effect intended by !he Legislature (b). [So, where an act prohibited the sale of liquor " within three miles of Mt. Zion Church, in Gaston County," and there were two churches of that name, several miles apart, in said county, it was held that the statute must remain inoperative. 102 The same disposition was made of an act which directed that appeals from interlocutory judg- ments, etc., be regulated by the law regulating appeals from final judgments, so far as the same might be appli- cable thereto, it being apparent that the law governing appeals from final judgments was incapable of application to appeals from interlocutory determinations. 103 Similarly, an ordin- ance prohibiting the driving of any "drove or droves" of cattle through the streets of a city, was held incapable of construction and hence inoperative, because of the vague- ness of the word "drove "in respect of the quantity of of cattle intended. 104 As a matter of course, the principle forbidding courts to guess at the meaning of an act which expresses none, is peculiarly applicable to statutes disposing over life and death.' 05 ] (a) But see infra, §^ 295 et soq. 1M State v. Partlow, 91 N. C. 5.^0. •o' Com'tk v. Bank, 3 Watts 10:! Ward v. Ward, 37 Tex. 3*9. & Sen;. (Pa.) 173, 177. And see Hughes' Case, 1 Bland (b) Green v. Wood, 7 Q. B. 178 ; (Md.) 46. see also Doe v. Carew. 2Q.B, ' ,M McConvill v. Jersey City, 39 317- and Mundy v. Rutland, Q. N. J. L. 38. B. Nov. 29, 1882. Comp. Doe v. "« See State v. Boon, 1 Tayl. MoiTatt, 15 Q. B. 257. (N. C.) 246. 32 EXTERNAL CIRCUMSTANCES, ETC. [§ 25 CHAPTER II. External Circumstances, Context, and Acts in Pari Materia. § 25. Inadequacy of Literal Interpretation. § 27. Lord Coke's Rule. § 28. Surrounding Facts and Circumstances. § 29. History of Enactment § 30. Parliamentary History. Opinions of Legislators. § 81. Motives of Legislators. g 32. Proceedings, etc., of Committees. § 33. Legislative Journals. § 34. Usage. § 35. All Parts of Statute to be Compared. § 37. Context may Limit or Expand Meaning. § 38. Context may Explain Meaning. § 39. Context may Correct Errors. § 40. Context to be Consulted to Avoid Inconsistency. Amend- ments, etc;. § 41. Limits of Rule Requiring Context to be Consulted. § 42. Statute Embodying Several Distinct Acts. § 43. Earlier Acts in Pari Materia. § 45. Acts passed at Same Session. § 4G. Appropriation and Revenue Acts, etc. § 47- Later Acts in Pari Materia. § 48. Expired and Repealed Acts in Pari Materia. § 49. Repealed Portions of Acts. § .00. Repealed, etc., Acts Expressly Referred to. § 51. Revisions — Codifications — Re-enactments. § 52. Acts upon Similar Subjects. § 53- Purpose, Effect, Basis and Limits of this Rule. § 54. Acts not in Pari Materia. § 55. Private Acts and Special Clauses. § 56. Special and General Acts Read Together. § 57. Constitutional Provisions in Pari Materia. § 25. Inadequacy of Literal Interpretation. — The foregoing elementary rule of construction does not carry the interpreter far; for it is confined to cases where the language is precise and capable of but one construction, or where neither the § 25 | EXTERNAL CIRCUMSTANCES, ETC. 33 context nor the consequences to which the literal interpreta- tion would lead, show that that interpretation does not ex- press the real intention. But it is another elementary rule, that a thing which is within the letter of a statute is not within the statute unless it be also within the meaning of the Legislature (. 243; Slate v. IS'iehols, 30 La. An. (c) It. v. Zulucta, 1 Car. & K. Part. II. 980 ; Lake v. Caddo Par- 215. ish, 37 Id. 788. (d) Per Bramwell B., in Santos v. 18 Keyporl St. Co. v. Trans. Co., Illidge, 29 L...L C. P. 348, 8 C. B, 18 N. J. Eq. 13 ; Delaplane v. N. S. 801. § 30] EXTERNAL CIRCUMSTANCES, ETC. 39 Chinese subjects to the government of China, when charged with " any crime or offense against the law of China," was construed, either by reference to the circumstances under which the treaty, which the ordinance enforced, had been made, or to the geographical relation of Hong Kong to China, as limited to those crimes which all nations concur in proscribing {a). An Act which authorized " the Court' 1 before which a road indictment was preferred, to give costs, was construed as authorizing the judge at Nisi Prius to do so, partly on the ground of the well-known fact that such indictments were rarely tried by the Court in which they were, in the strict sense of the word, " preferred ,: (b). [And so, an act relating to civil actions was held not to require the filing of complaint and notice with the clerk as the first step, but to permit the service thereof on the defendant before presentation to the clerk for filing, because of the delay and expense of travel, which, it was known, would otherwise result to suitors. 19 ] The external circumstances which may be thus referred to, do not, however, justify a departure from every meaning of the language of the Act. Their function is limited to suggesting a key to the true sense, when the words are fairly open to more than one, and they are to be borne in mind, with the view of applying the language to what was intended and of not extending it to what was not intended ( McCullock v. State, 11 Ind. 424. See, as to direct proceedings to impeacb an act for fraud not apparent on its face. Wet more v. Law, 84 Barb. (N.Y.) 515; Oakland v. Carpenticr, 21 Cal. <>42. In Eng- land, the ride seems absolute that courts cannot inquire how an act of Parliament may have been passed, how far the parties affected by it may have bad an opportunity of being heard, how far the forms of procedure which are prescribed by the bouses of Parliament may have been followed : Wilberforce. Stat, Law, p. 24, cit. Earl of Shrewsbury v. Scott, 6 C. B. N. S., at p. 100; Edinburgh R. It. Co. v. Wanchope, 8 CI. & Fin., at pp. 723-5; that, where an act has been improperly obtained, the Legisla- ture alone can provide a remedy, the courts not being permitted to allow the authority of the Legisla- ture to be impeached by a sugges- tion that an act of Parliament has been obtained by fraud : Wilb. pp. 24-25, cit. Lee v. Bude, etc li. li. Co., L. It. 6 C. P., at p. 5S2; Watcrford R. R. Co. v. Logan, 14 Q. B. 672, 680 ; Stead v. Carey, 1 0. B. at p. 516. 00 Steele v. Midland R. Co., L. R 1 Oh 282 ' !8 Salkeld V. Jobuson, 2 C. B. 756 ; Farley v. Bonham, 2 J. & H. 177 ; 30 L. J. C. 239. § 33J EXTERNAL CIRCUMSTANCES, ETC. 43 Commissioners, 59 of the Common Law 30 and chancery com- missioners. 31 And the rule seems to be the same in this country, 32 although perhaps not followed with universal consistency. 33 § 33. Legislative Journals. — [The journals of the Legislature, however, whilst they " are not evidence of the meaning of a statute, because this must be ascertained from the language of the act itself, and the facts connected with the subject on which it is to operate " 34 may nevertheless, under certain circumstances and for certain purposes, be consulted by the court. They are not only the highest evidence of the enact- ment of a law, 35 so that they may be consulted to show that a part of a bill signed by the executive was in fact, repealed before the date of such signature ; 38 but in a case where the statute, the construction of which was in question, was so worded as to be apparently contradictory in some of its pro- visions, the Supreme Court of the United States interpreted the same by reference to the journals of Congress, from which it appeared that the peculiar phraseology was the result of the introduction of an amendment, without due reference to the wording of the original bill. 37 And a pro- vision in a statute reading that "no lien reserved on personal property sold conditionally and passing into the hands of the conditional purchaser shall be valid against attaching creditors or purchasers without notice," was construed as though there were a comma after "purchasers," such being the punctuation in the original bill as passed by the Legisla- ture though it was not so printed in the copy. 38 And an act 29 Matter of Dean of York, 2 Q. Pa. St. 446, 450. But see Edger B. 34. v. Co. Comm'rs, 70 IncL '631. 30 Martin v. Hemming, 24 L. J. 85 Soutlrwark B'k v. Com'th, Ex. 5; 18 Jur. 1002;"Arding v. supra. ; and of tbe time of its Bonner, 2 Jur. N. S. 763. enactment : Gardner v. Collector, 31 Ewart v. Williams, 3 Drew. 6 Wall. 41)9. 21. 24. 36 Soutbw. B'k. v. Com'th, ubi 82 See Bank of Pa. v. Com'th, 19 upra ; and see People v. Starne, Pa. St. 144, 156, where evidence of 35 111. 121. Compare Sherman v. tbe reports of committees inter Storv, 30 Cal. 253. alia, is said to be " not. only of no 37 Blake v. Nat. Banks, 23 Wall, value," but " delusive and danger- 307, 321. ous ;" and see Bish., Writ. Laws, 38 McPhail v. Gerry, 55 Vt 174. § 77. In Edger v. Co. Comm'rs, 70 lnd. 33 See post, § 68. 331, it is said that the court may 34 South wark B'k. v. Com'th, 26 44 EXTERNAL OERCUMSTA.NCES, ETC. [§§ 34, 35 approved May 3, lsr>2, which provided that it should take effect from and after" May 15, next," was, partly by reference to the legislative journals, which showed it to have been finally passed on A.pr. 28, L852, construed as taking effect from and after May 15, 1S52. 30 ] § 34. Usage. — Another class of external circumstances which have, under peculiar circumstances, been sometimes taken into consideration, in construing a statute, consists of acts done under it ; for usage may determine the meaning of the language, at all events when the meaning is not free from ambiguity (a). § 35. All Parts of Statute to be Compared. — Passing from the external history of the statute to its contents, it is an elementary rule that construction is to be made of all the parts together, and not of one part only by itself (A). consult the journals of the two bouses of the Legislature t < > ascer- tain its will and intention, where the statute to be interpreted is ambiguous, — cit Wood Mowing, &c. Co. v. Caldwell, 54 Id. 270. 39 Fosdick v. Perrysburgh, 14 Ohio St. 427. For the purposes of construction, and of ascertaining whether an act has been passed according to the forms required by the constitution to give it validity, tin' courts judicially notice the contents of the Legislative jour- nals, which need not, therefore, be pleaded or given in evidence : Moody v. State, 4S Ala. 11.") ; Clare v. Slate, 5 Iowa, ."ill!) ; People v. Makaney, 13 Mich, -isi ; Division of Howard Co., 15 Kan. 194. Bui see contra: Grob v. Cushman, 15 111. Ill); Coleman v. Dobbins, 8 [nd. L56 : Madison Co. v. Burford, 93 [nd. 383 ; Auditor v. Haycraft, 14 Bush. (Ky. ) 284. In State v. Auditor, 41 .Mo. 240, under an act making it the duty of the state senate to cause its journals to be printed, it was held that the Appendix thereto made up of reports and public documents, was a part tbereof ; and that the secre- tary of the senate was therefore entitled to receive the same pay for copying it for the press as for copying the record to the senate's daily proceedings. (a) See ex. gr. It. v. Leverson, L. II. 4 Q. \'< :;'.)!, and other cases referred to, inf. gg 357 el seq. (//) Co. Litt. 331a ; Lincoln College Case, :', Rep. 59b. [S. P. : Pennington v. Coxe, 2 Cranch. :;:!; Pice v. P. P. Co., 1 Black, 358; Wilkinson v. Leland, 2 Pet. 627 ; Atkins v. Disintegrating Co., 18 Wall. 272 ; U. S. v. P. asset t, 2 Story, 389 ; Oirden v. Strong, Paine, 5*1 ; Strode v. Stafford .lusiiees, 1 Brock. Marsh. 162 ; Com'th v. Alger, 7 Cush. (Mass.) 53; Holbrook v. Holbrook, 1 Pick. (Mass.) 248 ; Mendon v. Worcester, 10 Id. 235 ; Com'tb v. Cambridge, 20 Ed. 267 ; Mason v. Finch. 3 111. 223; Belleville Li. P. Co. v. Greg' ory, 15 Id. 20 ; Burke v. Monroe, 77 Id. 610 ; Thompson v. Bulson, 7s in. 277 ; Williams v. People, 17 111. App. 274 ; Davy v. Burlington, &c. P. P. Co., 31 Iowa, 553 ; Brooks v. Comm'rs, 31 Ala. 227 ; ElleSOn V. Mobile, &c. P. P. Co.. 36 Miss. 572; State v. Mayor of Patterson, 35 X. J. L. 197 ; Com'th v. Duane, 1 Binri (Pa.) 601 ; Com'th v. Conyngbam, G(> Pa. St. 99; Poll v. IJes'hler, 71 Id. 299 ; San Francisco v. lla/.cn , 5 Cal; 169 ; Taylor v. Palmer, 31 Id. 240. § 35] CONTEXT. 45 Incivile est, nisi tota lege perspecta, una aliqua particula ejus proposita, judicare vol respondere (a). [Ex antecedentibus et consequentibus fit optima interpretatio. 40 A survey of the entire statute is almost] always indispensable, even when the words are the plainest* for the true meaning of any passage is that which best harmonizes with the subject, ami with every other passage of the statute. If one section of an Act, for instance, required that " notice*' should be "given," a verbal notice would probably be sufficient; but if a subsequent section provided that it should be " served " on a person, or "left" with him, or in a particular manner or place, it would obviously show that a written notice was intended (p). [So, if one section of an act required that a certain notice should be published for ten days in succession, and another that all notices should be published daily, Sun- days excepted, the two sections, read together, would indi- cate that the Sundays should be included for enumeration but not for publication. 41 ] The second section of Lord Tenter- den's Prescription Act, 2 & 3 Will. 4, c. 71, in protecting "any right of common" from disturbance after certain peri- ods of enjoyment, uses an expression which unambiguously includes all rights of common, that is, those in gros*. as well as those appurtenant. But the fifth section, which in pro- viding a form of pleading to be applicable to all rights within Gates v. Salmon, 35 Id. 576 ; Berry Ga. 526 ; Wilson v. Briscoe. 11 v. Clary, 77 Me. 482 ; Atty. Gen. Ark. 44 ; Scott v. State, 22 Id. v. Bank, Harr. (Mich.) 315 : Atty. 369 ; Gas Co. v. Wheeling, 8 W. Gen. v. Detroit, &c. Co., 2 Mich. Va. 320. 138 ; Reynolds v. Baldwin, 1 La. (a) Dig. 1, 3, 34. An. 162; Success'n of Hebert, 5 40 2 lust. 173; Holl v. Deshler, Id. 121; Catlin v. Hull, 21 Vt. 71 Pa. St. 299, 301. Even where a 152 ; Ryegate v. Wardsboro, 30 Id. proviso in an act is ineffectual, 746 ; Maple Lake v. Wright Co., because unconstitutional, it cannot 12 Minn. 403 ; St. Peter's Church be disregarded in the interpieta- v Scott, Id. 395 ; Canal Co. v. R. tion : Com'th v. Potts, 79 Pa. St. R. Co., 4 Gill & J. (Md.) 1 : Magru- 164. See § 49. der v. Carroll. 4 Id. 335 ; Alexan- (b) 43 & 44 Yict. c. 42 ; 2 W. & der v. Worthin«ton, 5 Id. 471 ; M. c. 5 ; Moyle v. Jenkins, 51 L. Parkinson v. State, 14 Id. 184; J. Q. B. 112 ; Wilson v. Ninhtin- Stockett v. Bird, 18 Id. 484 ; Rug- gale, 8 Q. B. 1034. [A provision gles v. Washington Co., 3 Mo. merely requiring a party to 496; State v. Weigel, 48 Id. 29; " notify " another requires verbal Green v. Cheek, 5 Ind. 105 ; Crone notification only: Vinton v. Build- v. State, 49 Id. 588 ; Nichols v. ers', etc., Ass'n, 109 Ind. 351.] AVells, Snecd. (Ky.) 301 ; Coving- 41 Taylor v. Palmer, 31 Cal. ton v. McNickle, 18 B. Mon. (Ky.) 240. 262 ; Torrance v. McDougald, 12 46 CONTEXT. [g 36 the Act, gives a form which could, from its nature, be appli- cable only to rights appurtenant, shows thai the wide expres- sion in the earlier section was used in the restricted sense of a right of common appurtenant (a). So, in the Dower Act, of 3 & 4 Will. 4, c. 105, the wojfd " land," which it defines as including manors, messuages, and all other hereditaments, both corporeal and incorporeal, except such as are not liable to dower, was held not to include copyhold lands; because the sixth section, which provides that a widow shall not be entitled to dower, when "the deed" by which the land was conveyed to her husband contains a declaration to that effect, showed that only lands which were transferable by deed were within the contemplation of the Legislature (I). W here one section of an Act empowered the Board of Trade, when it had "reason to believe" that a ship could not go to sea without serious danger to human life, to detain it for survey ; and another gave the shipowner a right to compensa- tion if it appeared that there was not reasonable cause for its detention, by reason of the condition of the ship or the act or default of the owner ; it was held that the latter section so modified the sense of the earlier one, that the Board of Trade would be liable to compensate the owner, though it had reasonable ground for belief when it ordered the detention, if it appeared from the evidence at the trial that a person of ordinary skill would have thought that there was no reasonable ground for detention (c). § 36. So, where one section of the 25 & 26 Vict. c. 102, enacted, that if "any building" projecting beyond the general line of the street was pulled down, the Board of Works might order it to be set back, giving compensation ; and the next enacted that under certain circumstances " no building" should be erected in any street, without the con- sent of the Board, beyond the general line; the latter section, which, per se, would have included alterations, whether on new or old, was confined b} r the former to buildings erected (a) Shuttle-worth v. Le Fleming, rell v. Jones, 2 Sm. & G. 407, 24 19 0. B. N. S. 687. 34 L. J. 0. P. L. J. Ch. 123. Comp. Doe v. 309. Waterton, 3 B. & A. 149. (b) Smith v. Adams, 5 De G.. M. (c) Thompson v. Fairer, 8 Q. B. & G. 712, 24 L. J. Ch. 258 ; Powd- D. 372. § 37] CONTEXT. 47 on land which had been hitherto vacant (a). Where one section of an Act imposed a penalty for selling " as unadul- terated" articles of food which are in fact adulterated ; and another declared that a person who sold an article of food "knowing it to have been mixed with another substance to increase its bulk or weight," and did not, in selling it, declare the admixture to the purchaser, should be deemed to have sold an adulterated article, the iflerent wording of the two sections showed that under the former the seller would be liable though he was ignorant of the adulteration (b). One section of the Companies Act of 1862, which enacts that where a company is being wound up by the Court, or under its supervision, any distress or execution put in force against the property of the company after the commencement of the winding up "shall be void to all intents," is so modified by another which enacts that when an order for winding up has been made, no action or other proceeding shall be pro- ceeded with against the company, except with the leave of the Court, that its true meaning and effect is only to invali- date the proceedings which it pronounces void, when the Court does not sanction them (c). The clause in the Ballot Act of 1872 which in express terms requires the presiding officer at each station to exclude all persons except the clerks, the agents of the candidates, and the constables, on duty, was found to include also the candidates themselves in the exception, since a subsequent clause provides that a candidate may be present at any place at which his agent may at- tend (d). § 37. Context may Limit or Expand Meaning — [Partly by a construction of all the provisions of an act together, it was ascertained that the requirements of a statute relating to pilots, though general in their terms, were not intended to embrace men of war of the United States, but only to mer- chant vessels, because the provision giving the pilot whose (a) Lord Auckland v. Westmin- B. 135 ; and Roberts v. Egerton, ster Board of Works. L. R. 7 Ch. L. R. 9 Q. B. 494. 597. See Doe v. Olley, 12 A. & E. (c) lie The London Cotton Co., 481 L. R. 2 Eq. 53. (b) 23 & 24 Vict. c. 84 ; Fitzpat- (d) 35 & 36 Vict. c. 33, s. 9, cl. rick v. Kelly, L. R. 8 Q. B. 337. 21 & 51 ; Clemenston v. Mason, L. See also Core v. James, L. R. 7 Q. R. 10 C. P. 209. 48 context. L§ 38 fees remained unpaid a lien upon the hull, tackle, etc., could manifestly be applicable only to the latter class, 43 it being fairly inferred, where a duty is prescribed by a statute and remedies are provided for the breach of it, and these reme- dies are such that they cannot be applied to a particular subject, that the subject was not within the view of the Legislature when if exacted the duty." So, where two sec- tions of an act defined the degrees of murder, and the third provided that ''the degree of murder shall be found by the jury," the latter provision was held inapplicable to eases where the accused pleaded guilty. 44 Conversely a grant of power conferred in general terms in the first section, was limited by a construction which read that section together with the twenty-third." So, an absolute direction, in one section, to set aside a homestead for a decedent's widow and children, free from all debts of the decedent, was restricted by an intention disclosed in succeeding sections to subject such homestead to debts contracted before the passage of the act. 47 And as a survey of the whole act may restrict the generality of certain of its provisions, 48 so it may expand the narrowness of others, if the real intention of the Legis- lature may be gathered from broader expressions in othei parts of the statute. Thus, the object of an act being to restore uniformity of taxation in counties, tc, and repeal- ing, for that purpose, all laws requiring any city to assume certain liabilities imposed by general laws upon counties, it was held that the term "cities" must be held to include incorporated towns. 49 § 38. Context may explain Meaning.— [The effect of a com- parison of all the parts of a statute is frequently to explain, rather than to limit or enlarge, an expression somewhere in « Avers v. Knox, 7 Mass. 30G. &c. Co. v. Van Auken, 9 Col. 204. 43 Ibid., p. 310. 49 Burke v. Monroe Co., 77 III. 44 Gncii v. Com'th, 12 Allen G10. And see Gas Co. v. Wheel- (Mass.) 155; Comp. pest, s, 215. ing, 8 \V. Va. 320, where it is said. ■ Maple Lake v. Wright Co., 12 that, the context showing a partic- Minn. 403. ular intention to effect a certain 41 Simonds v. Powers, 28 Vt. 354. purpose, some degree of implica- ; - Sec Stockett v. Bird, L8 Md. tion may be called in to aid the 484; Covington v. McNickle, 18 intent. B. Mon. (Ky.) 2U2 ■ Electro-M., § 88] CONTEXT. 49 the statute, which is open to several interpretations. Thus an act provided for the appointment by the governor of the state, " upon the passage" of the act, of inspectors of mines, upon the recommendation, however, of certain examiners, who were to be appointed by the court of com- mon pleas at the first term of the court in each year, the act being passed after the first term of the court in that year. In another preceding section, certain duties were imposed upon the inspectors and penalties inflicted for disobedience to their orders. It was held that a view of the whole act required that it should be so construed as to direct the appointment of examiners immediately, and in future years at the first term of the court. 60 Again, an act directed that corporations might be dissolved by the court of common pleas of the " proper county." It was held that the " proper" county was the county, in which, by the funda- mental articles of agreement between the corporators, upon which the decree of incorporation was based, the principal office of the company should be located ; because, by refer- ence to other portions of the act, it, appeared that the same required the agreement to set forth " the place within which " the corporation was established, — notice of the first meeting " in some newspaper printed in the county in which said corporation proposes to conduct its business," — the deposit- ing of notes of confirmation with the recorder of deeds " in said county," — the recording of certificates of the amount of capital fixed and paid in the office of the recorder " for said county," — and the like." So, too, where the language of one section of an act requiring certain notice of sheriff's sales, etc., was such as to indicate an intention to render sales without the notice prescribed void, such con- struction was negatived by the next section, which clearly imposed only a penalty on the officer for neglecting to com- ply with the requirement." Where an act relating to con- tested elections of senators provided, that, in case there be no law judge of the " district" in which any contest should arise, qualified to act, a certain other judge should be called 60 Com'th v.- Oonyngham, 66 Pa. 61 Oom'tu v. Shier, 53 Pa. St. St. 99. • 71. M Smith v. Randall, 6 Cal. 47. 50 CONTKXT. [§§ 39, 40 in to preside at the trial, it was held, upon comparison of the section in which this provision occurred with the pre- ceding one, which directed that the contest should be deter- mined before the court of the county where the person returned should reside, that the word "district" meant judicial, not senatorial, district." In another case the con- text was held definitely to fix the meaning of the word "attorneys" occurring in a statute as " attorneys at law." 54 And again, the phrase "out of the jurisdiction of any par- ticular state," was ascertained by' comparison of the context, from which it appears that this phrase ''particular state" was uniformly used in contradistinction to " United States," to mean any particular state of the Union." § 39. Context may Correct Errors.— [Again, it is Said that a mistake apparent on the face of an act may be corrected by other language in the act itself ; 58 so that, for instance, the evident omission of a word, in one section, which would affect the meaning, may, where the omission is explained in another part of the statute by reference to such section as intended, be supplied according to such explanation. 57 ] § 40. Context to be Consulted to Avoid Inconsistency. Amend- ments, etc.— In all these instances, the Legislature supplied in the context the key to the meaning in which it used expressions which seemed free from doubt ; and that mean- ing, it is obvious, was not [in all cases] that which literally or primarily belonged to them. [It has been heretofore 86 seen that it is a necessity of proper statutory construction, to give effect to every word, clause and provision of the enactment. Possibly the most important purpose of the construction of all the parts of a statute together and with reference to one another, is that of giving, by the means of such comparison, a sensible and intelligent effect to each, without permitting any one to nullify any other, and to harmonize every detailed provision of the statute with the general purpose or partic- 53 Cumberland Co. v. Trickett, 68 Blanchard v. Sprague, 3 Sumn. 107 Pa. St. 118. 279. M Cooper v. Shaver, 101 Pa. St. " Brinstield v. Carter. 2 Ga. 143. 547 549 See upon this subject, also post, "U. S. v. Furlong, 5 Wheat. ^298-302,317,319. ]s4 38 Ante, g 23 § 40] CONTEXT. 51 ular design which the whole is intended to subserve. 6 * With this end in view, the rule extends to acts and their amend- ments, which, for this purpose, are regarded as constituting but one enactment, so that no portion of either is to be left without effect, if it can be made operative without wresting the words used by the Legislature from their appropriate meaning, 00 and of two constructions equally warranted by the language of an amendment, that is to be preferred which best harmonizes the same with the general teuor and spirit of the act amended. 61 The same rule applies as to acts and their supplements, 62 and still more obviously to codes and revisions. A code, or bodj' of revised laws, should, it is said, be regarded as a system of contemporaneous acts, 63 as estab- lished uno fiatu. 64 Its various sections relating to the same subject should, if practicable, be construed together, 65 as one, 64 as one act or chapter, 67 or as continuous sections of the same act ; 08 and one chapter is to be read with another, relating to the same subject, as one body of law, 68 though collected from independent laws of previous enactment, 70 originally passed at different times and re-enacted by a revisory act. 71 If possible, the various portions of such a code or revision must be so construed as to harmonize with one another. 73 Its general system of legislation upon the subject matter should be taken into view, and any particular article construed in conformity therewith, unless an intention to depart from it be clearly shown ; 73 and definitions contained in it are to be 59 See cases in note (p) to § 35. Bryant v. Liverrnore, 20 Minn. 60 Harrell v. Harrell, 8 Fla. 46. 313 ; Smith v. Smith, 19 Wis. 522 ; 61 Griffin's Case, Chase Dec. 364. Gallegos v. Pino, 1 New Mex. 410. 62 Van Riper v. Essex R R. B'd. 66 Mobile, &c. R. R. Co. v. 38 N. J. L. 23. And as to a Malone, supra. repealing act and an act suspend- 61 Smith v. Smith, supra. ing its operation, both passed at 6S Gallegosv. Pino, supra. ■• the same session of the legislature, 69 Bryant v. Liverrnore, supra. being construed as one act, so that 10 Mobile. &c. R. R. Co. t. both may have effect, see Brown v. Malone, supra. Berry, 3 Dal. 365. 71 Gal legos v. Pino, supra. 63 Ashley v. Harrington, 1 D. ,2 Gibbous v. Brittenum, 56 Miss. Chip. (Vt.) 348. 232. 64 Gibbons v. Brittenum, 56 " Childers v. Johnson, 6 La. An. Miss. 232. And see Com'th v. 634. Compare Bank of La. v. Goding, 3 Mete. (Mass.) 130. Farrar, 1 Id. 54, where it is said 65 Exp. Ray, 45 Ala. 15 ; O'Neal that the civil code of the State is v. Robinson, Id. 526 ; Mobile, &c. not to be considered as technically R. R. Co. v. Malone, 46 Id. 391 : a statute. 52 * i ONI EXT. [§§41, 42 construed with reference to its positive enactments in pari materia.™ § 41. Limits of Rule Requiring Context to be Consulted. — [ 1 he rule commending a consideration of the whole statute, in order to discover the sense in which words are used in a particular portion of ir, is subject, however, to this qualifi- cation, that, if the meaning of a word can be found in the section itself in which it is used, it ought to be there sought for, without recourse to anything beyond. 15 It is only where the meaning of the word or phrase cannot be satisfactorily ascertained from reading the particular section ; or where the meaning which such a limited view gives to it, would raise a conflict or incongruity as compared with other por- tions of the statute, that a reference to the latter is proper. And where there are general sweeping words which it would be difficult to apply in their full literal sense, it is one of the safest guides to construction, to examine other words of like import in the same statute, and if it is found that a number of such expressions have to be subjected to limita- tations or qualifications, and that such limitations and quali- fications are of the same nature, that forms a strong argu- ment for subjecting the expression in dispute to a like limi- tation or qualification : 76 the reason for this concession being, that it is presumed, that the Legislature used a word throughout the entire act in the same sense. 7 '] § 42. Statute Embodying Several Distinct Acts. — It has been observed, that when an Act embodies several distinct Acts, one part throws no further light on the other parts than would be cast upon them by separate and distinct enactments to the same effect (a). [But where an act incorporates another and provides that the two shall be construed as one, 74 Egerton v. Third Municipal- supra ; Pitte v. Shipley, 46 Cal. ity, 1 La. An. 435 ; Depas v. Riez, 154. 2 Id. 30 ; and they have no mean- (a) Per Turner, L. J., in Cope v. ing beyond: Ibid. See also Ala. Dohejrty, 4 Iv. & J. 307, 27 L. J. Warehouse Co. v. Lewis, 50 Ala. 000. [And it has been said that 514 Miss. 590; Eskridge v. MoGruder, 45 Id. 294; State v. Garthwaite, 23 N. J. L. 143 ; Union Canal Co. v. O'Brien, 4 Rawle (Pi.) 358; Neeld's Road, 1 Pa. St. 353 ; Black v. Tricker, 59 Id. 13. 19 ; Heeling's Road, Id. 358 ; Ml. Holiy Paper Co.'s App., 99 Id. 513 ; Koontz v. Howsare, 100 Id. 506 ; Linton's App., 104 Id. 2 8; Jacoby v. Shafer, 105 Id, 610; Booz's App., 109 Id. 592; P. A. A' il Pass. Ry. Co.'s App., 1 Penny. (Pa.) 149 ; Ege v. Com'th, 20 W. N. C. (Pa.) 73; Desban v. Pickett, 16 La. An. 350 ; [sham v. Iron Co., 19 Vt. 230 ; Hayes v. Hanson. 12 N. II. 2s I ■ Wakefield v. Phelps, 37 Id. 295 ; Dngan v. Gittings, 3 Md. 54; 3 Gill. 138 ; Canal Co. v. R. R. Co., 4 Gill & J. (Md.) 1 ; Billiugslea v. Baldwin, 23 Md. 85; State v. Stewart, 47 Mo. 882 ; State v. Clark, 54 Id. 216 ; Dodge v. Gridley, 10 Ohio Si 173 ; Manuel v. Manuel, 13 Id. 45S ; MeMahon v. It. R. Co., 5 Ind. 413; State v. Bpiingficld Tp., 6 Id. .S3 ; La Grange v. Cutler, Id. 354: Harrison v. Walker, 1 Ga. :;.'; Kzekiel v. Dixon, 3 Id. 146; People v. Western, 3 Neb. 312 ; Bendrix v. Reiman, 6 Id. 516; Slate v. Babeock, 21 Id. 599; McLaughlin v. Hoover, 1 Orcj,-. 31 ; Bryan v. Dennis, 4 Fla. 13; Mitchell v. Duncan, 7 Id. 13 ; Cannon v. Vaughan, 12 Tex. 399 ; KolleubernervrPeople, 9 Col. 233. The rules' that a statute is not to be construed to work public mis- chief unless plainly required by its language ; that effect, is to be given to the legislative inteution, if as- certainable, though contrary to the letter ; that absolute words may be qualified by reference to the con- text, to prior and subsequent acts in pari materia, to the history of the enactment, and to contempo- raneous legislation not precisely in pari materia; and that acts passed at the same session arc to be so const rued, if possible, as to give effect to each, apply to, and may control the construction of a clause in an act expressly repealing by title the whole of an earlier act, so that, if upon these grounds of interpretation, an intent is appar- ent to give the clause a qualified or limited operation, that intent must prevail over the literal and unqualified sense of it. So where the title of an act "to reorganize the local government" of N. Y. related solely to the political organization of a city, indicating nointenlion to interfere with the organization of its criminal cofirts, and such appeared from the his- tory of the enactment, and the other elements of construction indi- cated, to be its proper scope, and the act itself, in all its provisions, strictly adhered to the title, a clause repealing by title another act, which, inter alia, prescribed the organization of the criminal courts of l lie city, w;;s held to leave these provisions in full force : Smith v. People, 47 N. Y. 330.] § 44] ACTS IN PARI MATERIA. 55 other part of the common system to which it belongs. [Tims, not only may the entire body of the law upon a subject be given the effect of an harmonious whole, by restraining, enlarging, or qualifying conflicting words in any particular portion of it, by reference to other portions, so as to effectuate the obvious intention of the law ; 83 but where there are irreconcilably conflicting clauses in the same stat- ute, a comparison with other statutes upon the same subject may point out those clauses which are in harmony with such legislation as designed to prevail. 84 ] § 44. Illustrations. — A bye-law which authorized the elec- tion of u any person" to be Chamberlain of the City of London would be construed so as to harmonize, and not to conflict, with an earlier one which limited the appointment to person possessed of a certain qualification, and "any person " would be understood to mean only any eligible person (a). Where a question arose as to whether the Admiralty Court Act, 24 Vict. c. 10, which gives that court jurisdiction over any claim for "damage" done by any ship, included injuries clone to persons by collision ; one reason for deciding in the negative was that in other Acts in pari materia, loss of life and personal injury, on the one hand, and loss and damage to ships and other property, on the other, appeared invariably treated distinctly, and the word, " damage " was nowhere, in them, applied to injur- ies to the person (b). So the expression " possession " in the 2Gth section of the Reform Act of 1832, which enacts that no person shall be registered in respect of his estate or interest in land as a freeholder, unless he has been " in actual possession " of it for six months, was construed in the same sense as in the Statute of Uses, which declares that 63 See Noble v. State, 1 Gr. (la.) regarded as of paramount import- 325. ance. 84 Kansas Pac. Ry. Co. v. Wyan- (a) Tobacco Pipe Makers «. dotte Co., 16 Kan. 587, if such Woodroffc, 7 B. & C. 838, over- construction tends to secure most ruling Oxford v. Wildgoose, 3 Lev. completely the rights of all parties 293. affected, 'and there is nothing (b) Smith v. Brown, L. R. 6 Q. apparent in the act to indicate B. 729. But see the judgment of which provisions the Legislature Baggallay, L. J., in The Frauco- nia, 2 P. D. 174. et seq. 56 ACTS IN PARI MATERIA. [§ 44 (ho person who has the use of the land is to be deemed in lawful " possession " of it ; and consequently the grantee of a rent-charge by a conveyance operating under the latter itnte was held to be in | sion of it, within the mean- ing of the Reform Act, from the; date of the execution of the deed (a) ; though a grantee under a common law con- veyance would not he in po.-.scs>ion within the same Act, until he had received a payment of the rent-charge (b). [So, again, the various statutes in New York relating to ami enlarging the powers of married women, though passed in different years, were held to be construable as one act ;" and where an act passed in 1817 for the construction of a canal vested the fee of lands taken for that purpose in the people of the state, and lands were taken under a later act, which omitted any provision as to the title, it was held that it vested in the people as under the former law. 68 AVhere an act, conferring jurisdiction of a certain offense upon a police court, provided that the fine to he imposed should not exceed $100, nor the imprisonment one year, it was held, upon comparison of other statutes in pari materia, that this provision was a limit upon the punishment by either fine or imprisonment, but did not intend to authorize the imposition of both for the same offense. 68 Again, the gen- eral road law of Pennsylvania forbade the laying out of a private road on a public road, and required certain notice to be given to parties through whose lands the new road was to pass. A later act authorized the laving out of private roads, under the surface of any land, to coal mines, provid- ing nothing as to the occupation of public roads or notice to parties. It was held that this act was to be construed together with, and as part of, the general road law, and that, therefore, the taking of a public road and the failure to give notice were both fatal defects in a proceeding under the later act, 80 as also the failure, in the petition, for the road, (a) Heel is v. Brown, 18 C. B. N. 85 Perkins v. Perkins, 62 Barb. S. 90, 31 L. J. C. P. ss : Uadfield's (N. Y.) 531. Case. L. It. 8 C. I'. ::<>ii. 8e Reiford v. Knight, 15 Barb. lb) Murray v. Thorniley, 2 C. B. (X. Y.) 627. 217 ; Orme's Case, L. Li. 8 C. P. ** Com'th v. Griffin, 105 Mass. 281. 185. 83 Neeld's Road, 1 Pa. St. 353. § 44] ACTS IN PAR] MATERIA. 57 to set forth the definite points where the road was to begin and end, details required by the general road law, but not mentioned in the more recent statute."" So, an act enlarg- ing the jurisdiction of Justices of the Peace, and prescribing no forms of procedure, must be construed together with earlier acts upon the same subject and as adopting the forms and practice prescribed by them ; 91 and in the construction of an act authorizing married women to dispose of their property by will " executed in the presence of two wit- nesses," etc., recourse was had to the general wills act for the purpose of ascertaining the meaning of the word " execu- ted," and was accordingly held to prescribe the formality of making a will as regulated by that act, merely with the addition that it should be done in the presence of two wit- nesses, etc. 92 Similarly the word " sojourner " in the Penn- sylvania act of 18S1 relating to physicians, in the provision that any person opening an office or appointing any place where he or she may meet patients, or receive calls, shall be deemed a sojourner, was interpreted, by reference to earlier acts, as meaning and applying to one who practiced and had his residence in one county and who had an office and prac- ticed in another, not upon special occasion and at special requests only, but at regular intervals and in pursuance of advertisements. 03 Upon a question, in the construction of a revenue act, whether an exception of "savings institution" from taxation imposed upon " every company or association whatever," relieved Building Associations from the pay- ment thereof, it was decided that it did not, partly, at least, upon the ground that a comparison of other revenue acts demonstrated that such societies were not within the legis- lative meaning of the term "savings institutions," though they might not unnaturally be embraced therein. 04 On the other hand, by construing an act requiring in general terms bail absolute in appeals by defendants from judgments of Justices of the Peace for wages of manual labor, together »o Reeling's Road, 59 Pa. St. 9S Ege v. Com'th, 20 W. N. C. 358. (Pa.) 73. 91 Jacoby v. Shafer, 105 Pa. St. 84 ISourgignon B. A. v. Com'th, 610. 98 Pa. St. 54, 64. 9S Linton's App., 104 Pa. St. 228 5 s ACTS I.v PAR] MATERIA. [§ 45 with earlier acts regulating the matter of appeals from judgments of justices, it was held that executors and proba- bly others sued in a representative capacity, were not subject to that necessity. 05 Where certain acts requiring certain sums to be paid into the state treasury by a city gave the general court jurisdiction to enforce the payment, and an act was passed requiring an additional payment and thereby increasing the nggregate, hut was silent as to the mode of enforcing payment, it was held that theseveral acts must be construed together and that the remedy given by the earlier was applicable also to enforce the duty prescribed by the latter. 06 Again, where the action of detinue had been re the lease of convicts. 107 Boyle v. Horner, 104 Pa. St. (a) 25 Ed. 3, stat. 4, c. 4 ; Rolle 379. v. Whyte, L. It. 3 Q. B. 286 ; Callis " 8 U. S. v. Collier, 3 Blatchf. on Sewers, 258. -325. (l>) Clarke v. Powell, 4 B. & Ad. 109 U. S. v. Freeman, 3 How. 846 ; Smith v. Lindo, 4 C. B. N. S. 56. 395, 27 L. J. C. P. 196, 335. 110 Ibid. See also Georgia Pen- § 48] ACTS IN PAK1 MATERIA. 6 1 which enacts that damage arising from non-observance of the sailing rules shall be prima facie deemed to have been occasioned by "the wilful default" of the person in charge of the deck, the expression " wilful default" was construed by the light of the later Shipping Act of 1862, the 24th section of which declares that the ship which occasioned the collision shall be deemed to be "in fault," as including a negligent as well as a criminal default (a). [So, where an act, passed in 1865, forbade discrimination on account of color or race, in any licensed inn, in any public place of amusement, etc. ; and another passed in 1866, forbade the exclusion of persons from any public places of amusement, "licensed under the laws of" the commonwealth, it was held, upon compari- son of the two acts, that the public places of amusement referred to in the earlier must be construed to mean such as were licensed under the laws of the commonwealth. 111 In other words, the understanding of the phrase in the earlier act was dictated by the explicit language of the later. Similarly, acts have been construed as not repealing others by implica- tion, by reference to the fact of a subsequent express repeal thereof by still another act ; m and the passage of an act in 1851 authorizing securities from husband to wife to be taken in the name of a third person as trustee and declaring securi- ties theretofore taken directly by the wife from her husband valid, was invoked as showing a legislative construction of the Pennsjdvania married woman's act of 1848 to the effect that it was not intended to sanction such direct dealings between husband and wife. 113 ] General rules and forms made under the authority of an Act which enacted that they should have the same force as if they had been included in it have also been referred to for the purpose of assisting in the interpretation of the Act (IS). § 48. Expired and Repealed Acts in Pari Materia. — The lan- guage and provisions of expired and repealed Acts on the (a) Grill v. The Screw Collier Gross, 2 Penr. & W. (Pa.) 171. Co., L. II. 1 C. P. 611, per Willes, 1I3 Bear's Administrator v. Bear, J. 33 Pa. St. 52o, 530. But see post, 1,1 Com'ih v. Sylvester, 13 Allen § 53, and compare post, §§ 365„, (Mass.) 247. 306. w See Cape Girardean Co. Ct. (b) Re Andrew, 1 Ch. D. 358. v. Hill, 118 U. S. 68 : Moyer v. 62 ACTS IN l'AK'I MATERIA. [§ '18 name subject and the construction which they have authori- tatively received arc also to be taken into consideration [in the construction of a statute, as parts of the general system, or possibly more properly as instructive steps in the develop- ment of the existing system, of legislation upon the point in question. 114 ] Thus, 202nd section of the Bankrupt Act of 1849, which makes " void " all securities given by a bankrupt to a creditor to induce the latter to forbear opposition to the bankrupt's certificate, was construed in the same sense as that which had been given to the same provision in the earlier and repealed Bankrupt Act of the 6 Geo. 4 (a). What was meant in the Vagrant Act, 5 Geo. 4, c. 8, by "running away, leaving his or her child chargeable to the parish," was determined by referring to the earlier Act of 5 Geo. 1, which spoke of persons who "run or go away from their abodes into other counties or places, and some- times out of the kingdom," and was therefore held not to apply to a woman who left her children at the door of the workhouse, and returned to her usual abode in the town, where the workhouse was situated (h). [And ch. 74, § 3, of the Eevised Statutes of Massachusetts, forbidding the bring- ing of an action to charge a party on his representation concerning the character, etc., of another, unless such repre- sentation was in writing, was held to apply, like the repealed act of 1834, c. 182, § 5, only to representations affecting the credit of another. 116 So, the definitions of a word given by a former act in pari materia, which has been repealed, may be properly consulted. 116 ] 114 See Medbury v. Watson, 6 see also Exp. Copeland, 2 DeG., Mete. (Mass.) 246 ; Daniels v. M. & G. 914, 22 L. J. Bey. 17. Com'lh, 7 Pa. St. 371, 373, cit. (6) Cambridge Union v. Parr, 10 Church v. Crocker, 3 Mass. 17,21; C. B. N. S. 991, 30 L. J. M. C. Ilolbrook v. Holbrook, 1 Pick. 241, per Byles, J. (Miss.) 254. See also Ford v. m Medbury v. Watson, 6 Mete. Burcb, 6 Barb. (N. Y.) 60 ; Thayer (Mass.) 246. But, of course, the v. Dudley, 3 Muss. 296 ; Holland repealed act, though re-enacted v. Makepeace, 8 Id. 418, 423; with some changes, whilst it may Mcndon v. Worcester, 10 Pick, be so considered in construing the i Mass.) 235 ; Coffin v. Rich, 45 Me. repealing act, is itself of no opera- 5(17 ; Henry v. Tilson, 17 Vt. 479 ; tive force whatever except in so Coleman v. Davidson Academy, far as it is continued in force by Cooke, (Tenn.) 258 : Forqueran v. saving clauses and exceptions : Donnally, 7 W. Va. 114. Coffin v. Kieh, 45 Me. 507. (a) Go'ldsmid v. Hampton, 5 C. 116 Exp. Crow Dog, 109 U S B. N. S. 94, 27 L. J. C. P. 286 ; 556. §§ 49, 50] ACTS IN PARI MATERIA. 63 § 49. Repealed Portions of Acts. — [In the same manner,] where a part of an Act has been repealed, it must, although of no operative force, still be taken into consideration in construing the rest. If, for instance, an Act which imposed a duty on racehorses, cabhorses, and all other horses were repealed as regards racehorses, the remaining words would still obviously include them, if the enactment were read as if the repealed words had never formed a part of it (a). Where a statute imposed a duty on artificial mineral waters [and all waters impregnated with carbonic acid gas] and on all other waters to be used as medicines, and the duty on artificial mineral waters was afterwards repealed, the repealed words were held essential for determining 1 whether what still subsisted of the Act, though wide enough to include artificial waters, was intended to include them (h). [So, in construing a section of an act remaining in force, resort may be had to a proviso to it which has been repealed. 117 § 50. Repealed, etc., Acts Expressly Referred to. — [Whilst the propriety of comparing expired or repealed statutes, or parts of statutes, with those remaining in force, for the purpose of construing the latter, is unquestionable, in the absence of any reference to them in the statute under construction, 118 (a) Per Bramwell, L. J., in common victualler, or other person Atty.-Gen. v. Lamplongh, 3 Ex. should sell any brandy, rum or D. 214, 47 L. J. 555. otber spirituous liquor in a less (b) Ibid. [It was held reversing quantity than 15 gallons under a the lower court that the water tax- penalty of not more than $20 nor able under the first head, did not, less than $10, and repealed all upon the repeal of tliat item, acts then in force inconsistent become taxable under the more with it, it was held that there was general clause. See the opinion of no inconsistency .between the acts Kelly, C. B., the dissentient judge as to the seller arid the kind and in the lower court, at p. 223 : " No quantity of liquors with reference judge ever laid down as law that, to one who was neither an inn where a particular clause in an holder nor a common victualer Act of Parliament is repealed, the convicted under the first act of whole Act must be read as if that selling spirituous liquor, but an clause had never been enacted, inconsistency as to the penalty, and All that can be said is that the that, therefore, he could not be clause is to be taken as if it had sentenced : Com'th v. Kimball, 21 never been enacted." But where Pick. (Mass.) 373. See post, §§ an act provided that no person 236, 239.] should sell wine, brandy, rum or 117 Bank for Savings v. Collec- other spirituous liquors in quan- tor, 3 Wall. 495 ; Exp. Crow Do?, tities less than 28 gallons, without 109 U. S. 556. license, under a penalty of $20 for 118 See Forqueran v. Donnally, 7 each offence ; and a later act pro- W. Va. 114. Nor can a proviso vided that no inn holder, retailer, which is void, because uuconstitu- 64 ACTS IN P MM M VI KRTA. .' 5 L the propriety of such comparison is still more obvious where there is an express reference, in the statute in force, to the repealed statute. It is said, that, where an act superseding a former one refers to the latter, the superseding statute must be construed with reference to the superseded one. 110 And notwithstanding the repeal of Wis. Rev. St. 1878, § 1210a, the words of § 1210b, ''any of the causes mentioned in § 1210a," etc., were, it was held, to be understood as if the enumeration of causes thus referred to were incorporated in § 1210b, and § 1210a, though repealed, was to be looked at to ascertain what they were. 130 § 51. Revisions— Codifications — Re-enactments- — [The rule which permits a resort to repealed and superseded statutes, in pari materia, is of great importance in the construction of statutes which re-enact, with changes, and repeal former ones, and in that of enactments containing revisions or codi- fications of earlier laws. As to the former, it is obvious that a change of language is some indication of a change of intention. Thus, where] a repealed Act imposed a penalty on the owner of cattle found lying on the highway " with- out a keeper," and the same provision was re-enacted with- out the last words, the omission was construed as obviously showing the intention that the presence of a keeper should no longer absolve the owner from liability (a). [And so, where the latter of two acts upon limited partnerships failed to prescribe a penalty for a certain omission, for which the tirst act had provided a penalty, the court said : " The omission to prescribe a penalty . . is good reason for con- cludinir that no such liability was intended. 121 As to codi- fications and revisions, which, upon a principle that will hereafter become man i lest, are held, in general, to repeal the enactments covered by their provisions, 122 it is, no doubt, tional, be disregarded in the inter- King, 77 Me. 22-4. pretation of the section to which it 1S0 Flanders v. Merrimack, 48 is appended: Com'th v. Potts, 79 Wis. 5G7. Pa. St, 104. (a) 27 & 28 Vict. c. 101, s. 25 ; 119 llam v. Boston B'd of Police, Lawrence v. King, L. li. 3 Q. B. 142 Muss. 90 ; and hence it was 345; see also R. v. Moah, Dearsl. held that the act of 1885, giving the 020 ; Exp. (Jorely, 34 L. J. Bey, 1. board power to remove for cause, m Eliot v. llimrod, 108 Pa. St. required notice and hearing before 50'.), 573. But see as to the limit removal : ibid. See also, on this of this rule, post, §§ 378-381. question of power, Andrews v. m See post, §§ 201, 202. § 52] ACTS IN PART MATERIA. 65 true, that, like the Kevised Statutes of the United States, they must be accepted as the law upon the subject they embrace, as it existed when the Revision or Code went into force, and that, consequently, when their meaning is plain the Court cannot recur to the original statute to see if errors were committed in revising them. 123 Yet is has been conceded that, where, in construing the language of a code or a revision of statutes, there is a substantial doubt as to its meaning, the original statute may be looked at and con- sidered. 124 And more especially is this the case, where the act authorizing the codification requires marginal references to the sessions acts. 125 ] § 52. Acts upon Similar Subjects. — The construction which has been put upon Acts on similar subjects, even though the language should be different, should for a similar reason be referred to. 126 Thus, the Insolvent Act, 1 & 2 Yict. c. 110, s. 37, which vested in the provisional assignee all the insolvent's debts which became due to him before his dis- charge, received the same construction as a similar provis- ion in the Bankrupt Act of 6 Geo. 4 (a). The provision of the 9 Geo. 4, c. 14, requiring that an acknowledgment to take a debt out of the Statute of Limitations should be signed k ' by the party chargeable thereby," was held not to include an acknowledgment by his agent, on the ground that when the Legislature intended to include the signature of agents, not only in other Statutes of Limitations, but also in several sections of the Statute of Frauds, one of which was recited in the Act, express words had been used for the purpose (b). So the County Court Act of 1867, which gives jurisdiction in ejectment when the value of the tene- ment does not exceed twenty pounds, was construed, as regards the measure of value, by reference to the Parlia- 123 U. S. v. Bowen, 100 U. S. between two sections, the original 508 ; Arthur v. Dodge, 101 Id. 34 ; statute governs. Victor v. Arthur, 104 Id. 498. I26 See Whitcomb v. Rood, 20 124 Myer v. West. Car Co., 102 Vt. 49 : Smith v. People, 47 N. Y. U. S. 1 ; Pratt v. Boston Street 330. Comm'rs, 139 Mass. 559. (a) Jackson v. Burnbam, 8 Ex. 125 Nicholson v. Mobile, &c. R. 173, 22 L. J. Ex. 63 ; Herbert «.. R. Co., 49 Ala. 205 ; where it was Sayer, 5 Q. B. 965. held, that, in case of conflict {b) Hyde v. Johnson, 2 Bing. N C. 776. 66 ACTS IX PAEI MATERIA. [§ 53 mentary Assessment Act (a). That which was held a suffi- cient signature to a will or contract under the Statute of Frauds (b) was held sufficient under the Bankrupt Act, 6 Geo. 4. c. 16, s. 131 (c), under the Statute of Limitations (rf), and under the Registration of Voters Act ( fere with other enactments in pari materi ; 134 and even where they do, though the construction under this rule may attribute to them a sense which is not their ordinary sense, the sense imposed upon them must be one in which they are u reasonably capable of being read." 13D Nor does the rule ever go to the extent of controlling the language of a statute by the supposed policy of previous enactments. 130 And so far as the influence of subsequent legislation upon the con- struction of an earlier act in pari materia is concerned, it must be remembered that it is the intent of the Legislature that enacted a statute which is to govern the courts in its construction,' 37 and that, therefore, in general, the opinion of a subsequent Legislature upon the meaning of an act passed by a former one is of no more weight than that of the same men in a private capacity; 138 and consequently mere inferences from the language of an act passed by a subsequent Legislature cannot properly interfere with the construction of a statute according to its plain import. 139 ] § 54. Acts not in Pari Materia.— But where Acts are ii ot in pari materia, [i. e., where they do not form an united system and cannot be regarded as such, 140 ] it is fallacious to take the construction which has been put upon one as a guide to the construction of another (a). [The meaning which one legislative body attaches to its use of a term in an act passed by it, cannot be conclusive as to the meaning in which another legislative body employs the same term in a different act. 141 ] For instance, the meaning put on the word " goods " 134 See R. v. Tonbridge Over- ,40 See United Soc'y v. Eagle seers, L. R. 13 Q. B. D. 342, per Bank, 7 Conn. 457, 469. Brett, M. R. («) Dewhurst v. Fielden, 7 M. & 135 s ee ibid. Gr. 187, per Maule, J.; Eyre v. ^(J..odrk:h v. Russel, 42 N. Y. Waller, 5 II. & N. 460, 29 L. J. 177. But it lias been said that 247, per "Wilde, B. even an English statute declaring 141 Feagin v. Comptroller, 42 Ala. the law upon a matter of doubt at 516, where an act increasing the common law, though of no author- sheriff's " fees " was held not to ity as such in this country, may, increase his " fees " for victualling as strictly a declaratory law, be prisoners, other acts showing, that, entitled to weight : Bull v. Love- though the act designating the land, 10 Pick. (Mass.) 9, 13. amount to be allowed him for that 137 See post, £§ 365-368. purpose, spoke of it as "fees," it 138 Bingham v. Supervisors of was not to be regarded as strictly "Winona, 8 Minn. 441. such in the legislative sense of the 139 Ingalls v. Cole, 47 Me. 530. word, but as "allowances" or ■§ 55J ACTS .NOT IN PAKI MATERIA. 6 V* in the reputed ownership clause of the Bankrupt Acts would be no guide to its meaning in the 17th section of the Statute of Frauds, not only because the words associated with it are different, but because the objects of the Act are wholly different (a). For the same reason, the Parochial Assess- ment Act, 6 & 7 Will. 4, c. 96, was held to throw no light on the meaning of "the clear yearly value" of a tenement which qualified a voter upon the Reform Act of 1832(5). Because Chambers are " a house " for the purpose of assess- ment to a poor rate under the 43 Fliz. c. 2 (c), of gaining a settlement under the 6 Geo. 4, c. 57 (d), of qualifying for a vote under the Reform Act of 1832 (e), and also as a place in which a burglary might be committed (f), it did not follow that the same meaning was to be given to the expres- sion in the 48 Geo. 3, c. 55, which imposed a duty on " in- habited houses" (g). A bicycle, which is a "carriage" within an enactment against furious driving, would not necessarily be also a carriage under a turnpike Act which imposed a toll on carriages impelled by steam or other agency (h). § 55. Private Acts and Special Clauses. — It may be added that in construing Acts of a private or local character, such ^as railway Acts, the Courts do not shut their eyes to the fact that special clauses, frequently found embodied in them, are in effect, private arrangements between the promoters and particular persons, 142 and are not inserted by the Legis- lature as part of a general scheme of legislation, but are "accounts." And see Spencer v. See also R. v. Oxford (V. C), L. Metrop. B'd of Works, L. R. 22 R. 7 Q. B. 471. Ch D 157. (/*) Williams v. Ellis, 5 Q. B. D. (a) Humble v. Mitchell, 11 A. & 175. E. 205. ■ 142 So it has been held tbat the \b) 2 Wm. 4, c. 45, s. 27 ; Colvill rule that words are to be taken in ■c. Wood, 2 C. B. 210. the strongest sense against the ,(c) R. v. St. George's Union, L. party using them, does not apply R. 7 Q. B. 90. to a contract by the State in grant- ed) R. v. Ushworth, 5 A. & E. ing a charter, the promoters, 261. rather than the Legislature, being (e) Henrette v. Booth, 15 C. B. regarded as the framers of the N S. 50, 33 L. J. 6. language : Raleigh, &c. R. R. ( Co. (/) Evans' Case, Cro. Car. 473. v. Reid, 64 N. C. 155 ; Wilmington, (g) Atty-Gen. v. Westminster &c. R. R. Co. v. Reid, Id. 226 ; Chambers Assoc, 1 Ex. D. 469. McAden v. Jenkins, Id. 796. 70 ACTS NOT IX PARI MATERIA. [ § 55 simply introduced at the request of the parties concerned. If the general provisions of such Acts were to override such special clauses, those in whose favor the latter are inserted would have a just claim to he heard in Committee on every clause of the Act, which would make it impossible to con- duct any private legislation (a). Such special clauses are therefore treated as isolated, and foreign to the rest of the Act; so that their wording, contrary to the general rule, is not to be regarded as throwing any light on the construc- tion of it (b). [Nor, in the exposition of private statutes conferring special privileges, or imposing particular obligations, would it be proper to resort to the language of any other private act not relating to the same parties and subject matter ; such statutes standing on the same basis with contracts by deed, not generally affected by evidence aliunde. 143 " Private acts of the Legislature, conferring distinct rights on different individuals, which never can be considered as being one statute, or the parts of a general system, are not to be interpreted by a mutual reference to each other. As well might a contract between two persons be construed by the terms of another contract between different persons. 14 * Accordingly it was held that the charters of various differ- ent banks could not be regarded as in pari materia, nor con- strued with reference to each other. 145 And though two cor- porations, boom companies, separately chartered by the Legislature, subsequently became consolidated, by virtue of an act of assembly which conferred upon the consolidated company all the rights, privileges and immunities, and made it subject to all the restrictions, contained in the acts incor- porating each company; it was held that the charters must he separately interpreted, so that, as before the consolida- tion, each company was required to deliver the logs at its own boom, the liability of the consolidated company to (a) Per Jessel, M. R., in Taylor 143 Thomas v. Mahan, 4 Me. v. Oldham, 4 Ch. I). 410. 513. (b) Per Lord Cairns in East " 4 United Soc'y V. Eagle B'k, 7 London R. Co. v. Whitechureh, Conn. 457, 469 L. R. 7 II. L. 89. 14s Ibid. §§ 56, 57] SPECIAL AND GENERAL ACTS. 71 deliver the logs at the boom in which they were caught remained unchanged. 146 § 56. Special and General Acts read together. — [But it is obvi- ous that statutes granting such special privileges are, in one sense, to be read together and construed in conformity with general statutes laying down universal rules applicable to the class of corporations to which the one claiming under the special act belongs. Thus it has been held in Pennsyl- vania that railroad companies incorporated by or under special acts, are subject to the regulation of the general rail- road law of February 19, 1849, except in so far as such reg- ulations are specially altered by the special acts, or are so inconsistent therewith as to evince a design to supersede them. -147 And similarly it has been held in New Jersey, that a reservation by general law of a right to the state to alter charters granted by it will be read inserted in each new charter, even though no reference to it be made therein. 14 * So, too, it has been held, that, where a corporation claims a right not expressly given by its charter, upon the ground, of construction, the passage of an act by the Legislature subsequently to the charter inconsistent with such right, requires that the charter be given such construction as not to raise a conflict between it and the statute, unless a con- trary interpretation is demanded by the general scope and evident design of all the pertinent provisions in the char. ter. 149 § 57. Constitutional Provisions in Pari Materia. — [It has occa- sionally been said that a statute and a constitutional pro- vision in pari materia must be construed together. 15 ' This requisite stands upon a somewhat different ground from 146 Gould v. Langdon, 43 Pa. St. 148 State v. Comm'rs of R. R 365. Compare, however. Lever- Tax'n. 37 N. J. L. 228. ing v. R. R. Co.. 8 Watts. & Serg. ,49 Maysville Turnp. Co. v. How, (Pa.) 459, where charters of vari- 14 B. Mori. (Ky.) 426. See for ous railroad companies were com- another instance of reading to- pared tor the purpose of constru- gether a special and general act so ing a certain provision in that of as to avoid a repeal of the latter : the defendant corporation. Comm'rs of Excise v. Burtis (N. 141 Mt. Holly Paper Co.'s App., Y.) 4 Centr. Rep. 235. 99 Pa. St. 513. See also New 150 See Billingsley v. State, 14 Brighton R. R. Co.'s App. 105 Id. Md. 369. And see also Aultman's 13. App. . 98 Pa. St. 505. 72 CONSTITUTIONAL l'KOVISIONS. [§ 5' that of the rule above discussed, and seems more properly referable to the presumption that all legislation is intended to conform with the constitution, a proposition which will be hereafter discussed. 1 "] »» See post § 181. § 58] TITLE, ETC. 73 §58. § 59. § 60, § 61. § 62. § 67. ■§ 68. § 69 $ 71. 8 72. CHAPTER III. Title, Marginal Notes, Punctuation, Preamble, Sched- ule, etc. Title. Effect of Constitutional Requirements as to Title. Marginal notes. Punctuation. Preamble. Matters Similar to Preamble. Recital. Reports of Committees. Petitions. Maps. Chapter, Section, etc. , Headings. Schedule. Resume. § 58. Title.— It has long been established [in England] by numerous judical decisions or dicta, from Lord Coke's to the present time, that [the title of a statute] is not a part of the statute, and is to be therefore, excluded from consideration in construing the statute. " The title cannot be resorted to," says Lord Cottenham, "in construing the enactment." (a) " The title, though it has occasionally been referred to as aiding in the construction of an act, is certainly no part of the law," it is said by the Court of Exchequer, in a well- known and considered judgment, " and, in strictness ought not to be taken into consideration at all " (b). And Lord (a) Hunter v. Nockolds, 1 McN. taken into consideration in the & Gord. 651. construction of an act, for origi (b) Per Cur. in Salkeld v. John- nally there were no titles to the son, 2 Ex. 283, citing Lord Coke acts, but only a petition and the in Powlter's Case, 11 Rep. 336 : Kind's answer ; and the judges ["As to the style or title of the thereupon drew up the act into act, that is no parcel of the act, form and then added the title; and and ancient statutes were without the title does not pass the same any title, and many acts are of forms as the rest of the act, only greater extent than the titles are."] the Speaker, after the act is passed, Lord Holt in Mills v. Wilkins, 6 mentions the title and puts the Mod. 62 ; Lord Hardwicke in question upon it ; therefore the Atty.-Genl. v. Weymouth, Ambl. meaning of the act is not to be 22: [" The title is no part of the inferred from the title."] Lord act, and has often been determined Mansfield in R. v. Williams, 1 W. not to be so, nor ought it to be Bl. 95. See also Chance v. Adams, 74 TITLE, ETC. [§58. Denman remarked that the Court had often laid that down (a). [In this country, whilst the title of a statute is not, in general, regarded as a part of the same, 1 it is nevertheless regarded as a legitimate aid in ascertaining the intention of the Legislature when the language and provisions in the body of the act are ambiguous and of doubtful meaning and application ; a as, for example, where a statute purported, in its body, to correct schedule M of section 25 of the Revised Statutes of the United States, and section 25 had no schedule M, a reference to the title, an act to " correct an error in section 2504 of the Revised Statutes," etc., was held permis- sible to explain and rectify an obvious error. 3 § 59. Effect of Constitutional Requirements as to Title. — [The propriety of such reference is especially manifest where the title is referred to in the body of the act, 4 and all the more justifiable, in cases of uncertainty, where the constitution 1 Lord Raym. 77 ; and per Byles, J in Shrewsbury v. Scott, 6 C. B. N. S. 1, 29 L. J. C. P. 34; per Lord St. Leonards, in Jeffreys v. Bnosoy, 4 II. L. 982, 24 L. J. Ex. 109 ; per Grove, J-. in Morant v. Taylor, 1 Ex. D. 194; and the American Case, Hadden v. The Collector, 5 Wallace, 110. (a) R. v. Wilcock, 7 Q. B. 329. The rule has net, indeed, been invariably observed. See ex. gr. R. v. Wright, 1 A. & E. 446 ; Alexander v. Newman, 2 C. B. 141 ; Taylor v. Newman, 4 Best. & 8.' 9:?, 32 L. J. 189 ; Rawley v. Rawley, 1 Q. B. 1). 466 ; Bentley v. Kot'heram, 4 Ch. D. 588 ; lor the mind, when laboring to discover the design of the Legislature, natually seizes on everything from which aid can be derived. Per Cur. in U. S. v. Fisher, 2 ('ranch, 386 ; U. S. v. Palmer. 3 Wheat. 631 (See People v. Sho.mmaker, 63 I'.arb. (X. Y.)49.] It has even been occasionally asserted that its title was pari ol a Statute, and was not to be disregarded in con- struing it. See Brett v. Brett, :; Addams, Ec. 217; llinton v. Dib- ben, 2 Q. B. 663, per Cur. : Wilmot v. Rose, 3 E. & B. 576, 23 L. J. 281, per Lord Campbell : Free v. Burgovne, 2 Blinh N. S. 78 ; Blake v. Midland R., 18 Q. B. 109 ; John- son v. I'pham, 2 E. & E. 263; Allkins v. Jupe, 2 C. P. D. 383 ; and Coomber v. Berks, 9 Q. B. D. 26. But it does not seem that on those occasions, attention was di- rected to the established rule. 1 See Ogden v. Strong, 2 Paine, 584; Plummer v. People, 74 111. 361 ; Com'th v. Slifer. 53 Pa. St. 71; McFate's App., 105 hi. 323, 326 ; Cohen v. Barrett, 5 Cal. 195 ; Bradford v. Jones, 1 Md. 351 ; Burgett v. Burgett, 1 Ohio. 469; Garrigus v. Com'rs, :!ii Ind. 66 ; State v. Stephenson, 2 Bailey (S. C.) 334 : State v. Welsh, 55 Hawks (N. C.) 401: Eastman v. Me Alpiu, 1 Ga. 157; and see eases in suc- ceeding notes. 2 See U. S. v. Palmer, 3 Wheat. 610; Ilines v. R. R. Co., 95 N. C. 434 ; and see eases in preceding note. ;i Wilson v. Spaulding, 19 Fed. Rep. 304. 4 Torreyson v. Examiner, 7 Nev. 19. 5J7 558 § 59] TITLE, ETC. 75 givessignificance and assigns particular importance to the title by requiring that a statute shall contain but one subject, and that it shall be expressed in the title." It is indeed said, that, under a constitutional prohibition against more than one subject in any statute and a requirement of its clear expression in the title, the latter necessarily becomes a part of the statute, 6 " and aids, if need be, in its construction, as " a very important guide to its right construction But, unless the constitution imperatively prescribes a dif- ferent relation between the title and the body of the act, the rule remains that the former may be consulted in aid of the interpretation of the latter, only in cases of ambiguity and uncertainty in its provisions, 9 in aid " if need be" 10 of their construction. It can never control the plain and unambiguous meaning of the language of the statute, 11 nor be used to extend or restrain its positive provisions ; 12 so that, even in the interpretation of a penal law, if the words of the enacting clause are broader than the title, the former must govern. 13 This rule, however, under constitutions containing a provision such as above indicated, is subject to an apparent exception. The subject matter being required to be expressed in the title, if the lane-ua^e of the act were broader than the fair meaning of the words of the title, but could be, reasonably and without doing positive violence to the letter, so construed as to bring it within the title, thus avoiding the failure of the entire statute or some of its provisions as unconstitu- tional, it probably would, upon a principle to be hereafter examined, 14 be so construed. In that way it may in a cer- tain sense, become practically true, that, under such a con- stitutional provision, the title may control the statute or 5 Meyer v. West. Car Co., 102 " Re Boston, etc. Co., supra ; U. U S 1. S. v. Fisher, 2 Cranch, 386. 6 Pa. R. R. Co. v. Riblet, 66 Pa. 12 Hadden v. Collector, 5 Wall. St. 164; Eby's App., 70 Id. 311 ; 107; Flynn v. Abboit, 16 Cal. 358; Halderman's App., 104 Id. 251. State v. Cazeau, 8 La An. 114. 1 Ibid., at p. 259. 13 U. S. v. Briggs, 9 How. 351 ; 8 Eby's App.. supra, at p. 314. and see S. P. as to a statute not 9 Re Boston Min., etc., Co., 51 penal : Com'th v. Slifer, 53 Pa. St- Cal. 624. 71. » Halderman's App., ubi supra. ,4 See post, g| 178, 180. 76 MARGINAL NOTES. [§ «'>0 some portion of it ; 15 i. c, it may narrow it. Where, how- ever, the title is so defective as to render the act void, it would seem to be scarcely accurate to say that the title con- trols the statute or its construction ; and so, where a portion of the statute consisting of a second subject, not expressed in the title, should have to be rejected as unconstitutional. In such cases, in the first the whole statute, in the second that portion not covered by the title, would simply be void, and could never, therefore, become, properly speaking, the subject of judicial construction. 18 But, there being no dif- ficulty as to the sufficiency of the title to comprehend the subject matter of a statute, it is said, that, whilst the title alone is not to be regarded as a safe expositor of the law, it may be presumed, in the absence of plain contradiction by the terms of the body of the act, to express its true intent and meaning. 17 In case of such plain contradiction, it is infera- ble from the decisions, that the construction of the language of the act would have to remain unaided by the title, even though the result be the avoidance of the statute, or some portion of it, on the ground of unconstitutionality. § 60. Marginal Notes. — [The marginal notes printed by the official printer in connection with the several sections of a statute, have been held to form no part of those sections, or of the statute, so as to throw light upon the question of construction. 18 Nor, when they appear on the rolls of the Legislature itself, as, since 1S49, they do in England, are they to be regarded as forming part of the enactment, or as binding as an explanation or as a construction of the same. 10 They are merely abstracts of the clauses, intended 15 See Nazro v. Merchants', etc. such marginal notes now formed Co., 14 Wis. 295; Dodd v. State, part of the act and might be used 18 Ind. 56. lor the purpose of interpreting it, 16 See ante, § 1, note 1. Jessel, M. It., saying, aj p. 525, 11 Connecticut, &c, Ins. Co. v. that, within his knowledge, they Albeit, 3!) Mo. 181. had been t he subject of motion and 18 Ctygdon v. Green, L. It. 2 C. amendment ; a statement at P. 521 f Birtwhistle v. Vardill, 7 variance with that of Ba^gallav, CI. & Fin. 895, 929. L. .)., in Atty-Gen. v. G. E. It. It. "Atty-Gen. v. G. E. It. R. Co., Co., supra, at p. 4G1 : "I never L. R. 31 Cli. I). 449; Sutton v. knew an amendment set down or Sutton, L. It. 22 Ch. !>. 513, over- discussed upon the marginal note ruling In re Venour, L. It. 2 Ch. to a clause. The House of Com- ■D. 522, where it was intimated that mons never has anything to dc § 61j PUNCTUATION. 7T to catch the eye, 80 and to make the task of reference easier and more expeditions. 21 But it was said, in one case, that, where a marginal note, instead of being a mere abstract of a section, gave express directions as to the form of an order which it accompanied, and was on the margin of the legis- lative roll, it was to he held a part of the statute," and the effect of marginal references, in a revision to the original acts has already been noticed. 23 § 61. Punctuation. — [The effect of punctuation in a statute, as an element in its construction, is not determined by the courts with absolute uniformity. It has been repeatedly asserted that punctuation is no part of a statute ; 24 that there is no punctuation in it which ought to control its interpre- tation ; 2a that it is not to be regarded in construction ; 26 or, at any rate, may be properly disregarded, 27 and that an erroneous punctuation of a statute, in printing it, ought not to be allowed an effect which would lead to an absurdity. 28 Hence, a comma may be transferred from after a word to before it, to effectuate the obvious intent of the statute ; 2 * or carried back several words, in order to prevent the sacri- fice of a material and significant word ; 30 or inserted for a similar purpose, as in the phrase " stolen or taken by robbers." 31 [On the other hand, it has been said, that, whilst not a decisive test of construction, the punctuation in a statute may yet be some indication of its meaning; 32 and that that meaning may often be determined from the punctuation. 33 with the amendment of the margi- 21 Martin v. Gleason, 139 Mass. nalnote. I never knew a marginal 183; Albright v. Payne, 43 Ohio note considered by the House of St. 8 ; Shriedley v. State, 23 Id. Commons." 130 ; Hamilton v. The R. B. Hamil- 20 Ibid., at p. 465. ton, 16 Id. 428. 11 Wilb., Stat. Law, p. 294. 28 Randolph v. Bayne, 44 Cal. 22 R. v. Milverton, 5 A. & E. 841. 366. 23 See ante, § 51 ; Nicholson v. 29 Albright v. Payne, supra. Mobile, etc., R. R. Co., 49 Ala. 30 Com'fh v. Shopp, supra. 205. 31 Shriedley v. State, supra ; and 24 Hammock v. Loan Co., 105 compare ante, § 33, McPhail v. U. S. 77. Gerry, 55 Vt. 174. 25 Gyger's Est.. 65 Pa, St. 311, 32 U- S- v. Three R. R. Cars, 1 312 ; Com'th v. Shopp, 1 Woodw. Abb. U. S. 196. And See Albright (Pa.) 123, 129. See also U. S. v. v. Payne, 43 Ohio St. 8. Isham, 17 Wall. 496, 502. 33 Squires' Case, 12 Abb. Pr. (N. 26 Cnshing v. Worrick, 9 Gray Y.) 38. (Mass.) 382. 7 s PREAMBLE. [§ G2 Accordingly, where an act allowed certain fees to witnesses " for each day's attendance in court, or before any otlieer pursuant to law," it was held that the punctuation discon- nected the latter phrase, "or before any officer," etc., from the preceding portion of the clause relating to attendance in the courts, and the former was, therefore, deemed to apply to attendance before commissioners only. 8 *] § 62. Preamble. — The preamble of a statute has been said to be a good means to find out its meaning, and, as it were, a key to the understanding of it; 35 and as it usually states, or professes to state, the general object and intention of the Legislature in passing the enactment, it may legitimately be consulted for the purpose of solving any ambiguity, or of fixing the meaning of words which may have more than one, or of keeping the effect of the Act within its real scope, whenever the enacting part is in any of these respects open to doubt, (a). Thus, in 26 Geo. 3, c. 107, s. 3, which empowered every person who had served in the militia and was married, to set up in trade in a corporate town, as freely as soldiers might under an earlier enactment, and declared that " no such militiaman " should be reinoveable from the town until he became chargeable, — it being open to doubt whether this expression included all married militiamen, or 34 [Cummings v. Akron Cement, but not decided: Semble that they etc., Co., 6 Blatchf. 50 ( J.] For- are not ; per "Willes, J., in Claydon merly, the hill was, at one of its v. Green, L. R. 3 C. P. 521, and stages, engrossed without pune- per James, L. .1., in A.tty.-Genl. v. tnation on parchment : 1 Bl. Com. G. E. R. Co., 11 Ch. 1). -i(i") ; coutvu- 183; but as neither the mar- per Jessel, M. R., in Re Venour, 2 ginal notes nor the punctuation ap- Ch. D. 525 [see ante, note 19] ; and peared on the roll, they formed no see R. v. .Mil vert on, 5 A. & E. 841. parts of the Ad. : Barrington Obs. The indorsement by the Clerk of on Stat. 394; see Harrow v. Wad- the Parliaments of the dale of the kin, 24 Beav. 327 ; and the judg- passing of the Act is part of it since men t of Maule, J., in It. v. Oldham, IT93 : 33 Geo. 3. c. 13. 21 L. J. M. C. 134, 2 Den. 473. 6 Co. l.itl. 79a; 4 fnst. 330; This practice was discontinued in Dyer. c. .1., in Stowell v. Fouch, IMit, sinee which time the record l'low«l.,al p. 369 : " A key to open of the statutes is a copy printed on the minds of 1 he makers of the act, vellum by the Queen's printer: and the mischief which they inten- May, Pari. P. Ch. 18; and both ded to redress." marginal notes and punctuation (a) Bac. Ab. Stat. I. 2; Halton now appear on the mils of Parlia- v. Cove, 1 B. & Ad. 558 ; Heard v. inent. But whether they arc now Rowan, !) Peters, 31 7 ; The People to be taken as parts of the statute v. Uiica Insurance Co., 15 Johns, is a question which has been raised N. Y. Rep. 389. § 62] PREAMBLE. 79 only married militiamen who had set up in trade in towns, the preamble of the earlier Act fixed the latter as the true ■construction, as it stated that the mischief to be remedied was the state of the law which prevented soldiers from set- ting up in trade in corporate towns (a). The 18th sect, of the 12 & 13 Vict. c. 45, which enacted that " any order" of Quarter Sessions might be removed to the Queen's Bench for enforcement, was similarly confined to orders in appeal cases, by the preamble which, in reciting that it was expe- dient that the law should be made uniform in cases of appeal, showed the limited scope of the Act (b). Under a statute which enacted that when a person came into the occupation of premises for which the preceding tenant was rated to the poor, the old and new occupants should be liable to the rate in proportion to the time of their occupation, the question arose whether either, and if so, which of them, was to pay for the interval between the removal and the beginning of the second occupation ; and this was determined by the preamble, which, by reciting that in consequence of rated occupiers removing without paying their rates, and other persons entering and occupying the premises for a part of the year, great sums were lost to the parish, showed that the object of the Act was not to make an equitable adjustment between the two occupiers, but to protect the parish from loss. It was therefore held that the rates were payable for the interval between the two occupations, and that the burden fell on the outgoing tenant, who was formerly liable under the Act of Elizabeth for the whole rate (c). An Act which made it penal for a publican to allow bad characters to "assemble and meet together" in his house, would not be broken by his permitting such persons to enter for taking refreshment, and remaining there as long as was reasonably necessary for that purpose ; when the preamble showed that the object in view was the repression of disorderly conduct, not the absolute denial of all hospitality to persons of bad character (d). In the 25 Geo. 2, c. G, which recited in the (a) R. v. Gwenop, 3 T. R. 133. by 32 & 33 Vict. c. 41, s. 1G ; (b) R. v oatemau, 8 E. & B. 584, Edwards v. Rusholme, L. R. 4 Q. 27 L J. 95. B. 554. (c) 17 Geo. 2, c. 38, s. 12, repealed (d) 23 Vict. c. 27, s. 32 ; Greig v. SO PREAMBLE. [§ 03 preamble a doubt as to who were legal witnesses to a will of 'and, and enacted that legatees and devisees who attested ' any will" should be good witnesses, but that the bequests uhI devises to them should be void, the enacting part was limited by the preamble to wills of land. Wills of person- alty, at that time, needed no attestation ; and the principle of cessante ratione cessat lex, as well as the injustice of depriving persons of property, making it reasonably doubt- ful whether the Legislature had used the expression " any will " in its full and unrestricted meaning, the preamble was legitimately invoked to determine the scope of the enact- ment (a). [And in a still more recent case, it was said that the court should give effect to the preamble to this extent, namely, that it shows what the Legislature is intending; and if the words of the enactment have a meaning which does not go beyond the preamble, or which may come up to the preamble, in either case that meaning should be preferred to one showing an intention of the Legislature which would not answer the whole purposes of the preamble or which would go beyond them. 30 §63. [In substantial accord with the English cases, the rule is thoroughly recognized in this country, that j whilst the preamble is not a part of the statute, it may assist in ascertaining the true intent and meaning of the Legislature, and for that purpose, where the language is ambiguous, admitting of a larger or more restricted meaning, may be properly referred to as an aid in deter- mining which sense was intended by the Legislature. 37 ] Bendeno. E. B. & E. 133, 27 L. J. Blackburn, adding : " To that M C 294. See Belasco v. Han- extent only is the preamble mate- nant, 3 Best & S. 13, 31 L. J. M. rial." C. 225. 3? See U. S. v. Webster, Dav. (2 (a) Emanuel v. Constable, 3 Russ. Ware) 38; Habn v. Salmon, 20 526, overruling Lees v. Summer- Fed. Rep. 301 ; Lathrop v. Ins. gill, 17 Ves. 508 ; Brett v. Brett, 3 Comm'rs, 4 Ins. L. J. 829 ; Jackson Addams 219. See other instances v. Gilchrist, 15 Johns. (N. Y.) 89 ; in Wetbered v. Calcutt, 5 Scott, Edwards v. Pope, 3 111. 465 ; Bart- N. R. 409 ; Doe v. Roe, 1 Dowl. lett v. Morris, 9 Port. (Ala.) 266 ; 547 ; Carr v. Royal Exchange Ass. James v. Dubois, 16 N. J. L. 285 ; Co., 5 Best & S. 941, 31 L. J. Q. Erie, &c, R. R. Co. v. Casey. 26 B. 93 ; Re Masters, 33 L. J. Q. B. Pa. St. 287 ; Com 'th v. Marshall, !46. 69 Id. 328 ; York (Jo. v. Grafton, a6 West Ham Overseers v. Her, 100 Id. 619; Fowler v. State, 5 L. R., 8 App. Cas. 387, per Lord Day (Conn.) 81 ; Laidler v. Young, § 03] PREAMBLE. S| So, as an Act which authorized aliens who "shall have been resident" in the country for two years, to hold hind, might either be limited to persons who had so resided before the passing of the Act, or extend to those who should at any time reside for the required time, the preamble was resorted to in order to determine which of the two mean- ings was the most agreeable to the policy and object of tin; Act ; and as it recited that aliens were prevented by law from holding lands in the State and it was the interest of the State that such prohibitions should be done away with, it showed that the former construction was less adapted to give effect to the intention of the Legislature than the latter (a). [And an act, the preamble of which declared its purpose to be the creation of highways, and the body of which declared a certain stream a public stream orhighwav for the passage of boats, or rafts, was held to cover the case of a number of logs, not fastened together, but floated in the stream contiguous to one another, the term 'raft' being capable, according to recognized authorities of embracing such a body of lumber, though that was not its usual accep- tation, and the preamble showing that the latter would be a more restricted interpretation than was intended by the stat- ute. 38 An opposite effect was derived from the considera- tion of the preamble to an act which declared that "in all cases of criminal prosecutions, wdiere by law the county of Y. is now liable to pay the costs of prosecution, including surety of the peace cases, after the conviction of the defend- ant, upon his discharge according to law without payment of costs, the said county shall be immediately liable to pay the costs," etc. The preamble recited the inconvenience arising to officers and witnesses from "long delay in recov- ering their fees," and the hardship occasioned thereby, " f or Har. & J. (Md.) 69 ; Canal Co. v. 301. [An alien being by the law of R. R. Co.,4Gill& J.(Md.)l; Lucas Indiana, ineligible as a juror, the v. McBlair. 12 Id. 1 ; Nichols v. term is held to apply to one not a Wills, Sneed (Ky.) 301 ; Clark v. citizen of that state, so that a citi- Bynum, 3 McCord (S. C.) 298; zeu of Indiana is eligible, though Blue v. McDuffie, 1 Busb. (N. C.) he be not a citizen of the U. S. : 131. And see cases cited ante, McDonel v. State, 90 Ind. 320.1 § G2, note b, p. 78. ^ Dcddiick v. Wood, 15 Pa. St. (a) Beard v. Rowan, 9 Peters, 9. S2 PREAMBLE. [§ P)4 remedy whereof," the statute was enacted. It was accord- ingly held to impose no liability upon the county to pay costs which it was not before required to pay, but only to require immediate payment of those costs which the •county was theretofore liable to pay upon the discharge of the convict, and consequently not to repeal the general law, which, in surety of the peace cases, left it to the court to order payment of cost by the prosecutor or defendant, or by both jointly or by the county. 39 [The preamble may also be referred to, to identify the sub- ject matter of the enactment ; 40 especially when referred to in the enacting clause for that purpose. 41 So, also, to explain the motive and meaning of the Legislature. 43 § 64. [The same decisions, however, which establish the doctrine above stated as to the admissibility of the preamble in the construction of a doubtful provision in a statute, also declare, that, when the meaning of the enacting part is clear and free from ambiquity, it cannot be controlled, with either enlarging or restraining effect, by the preamble. 43 And this, again, is in accordance with the English rule, that] the pre- amble cannot either restrict or extend the enacting part, when the language of the latter is plain, and not open to doubt either as to its meaning or its scope (a). It is not unusual to find that the enacting part is not exactly co-ex- tensive with the preamble. In many Acts of Parliament, although a particular mischief is recited, the legislative pro- visions extend beyond it. The preamble is often no more than a recital of some of the inconveniences, and does not exclude any others for which a remedy is given by the 39 York Co. v. Crafton, 100 Pa. B. Mom. (Ky.) 262 ; Eastman v. St. 619. McAlpin, i Ga. 157. 40 Com'th v. Marshall, 69 Pa. (a) 4 Inst. 39 ; per Lord Mansfield St. 328. in Patteson v. Banks, Cowp. 543, 4i lb. and Perkins v. Sewell, 1 W. Bl. 4 2 lb. 059 ; per Dampier, J., in Trueman 43 See, in addition to cases v. Lambert, 4 M. & S. 239 ; Wright already cited : Adams v. Wood, 2 v. Nutall, 10 B. & C. 492 ; Cres- Crancl), 336; Kirk v. Dean, 2 Binn. pigny v. Wittenoom, 4 T. R. 793, (Pa.) 311, 346 ; Seidenbender v. per Buller, J. ; Salter's Co. v. Jay, Charles, 4 S. & R. (Pa.) 151 ; Kent 3 Q. B. 109 ; Wilmot v. Rose, 3 E. v. Somervill. 7 Gill & J. (Md.) & B. 563 ; Copland v. Davis, L. Wo ; Covington v. McNickle. 18 R. 5 II. L. 358 ; Bentley v. Rothe- ram, 4 Ch. D. 588. § G5] PREAMBLE. 83 Statute (a). The evil recited is but the motive for legisla- tion ; the remedy may both consistently and wisely be extended beyond the cure of that evil (b) ; and if on review of the whole Act a wider intention than that expressed in the preamble appears to be the real one, effect is to be given to it notwithstanding the less extensive import of the preamble (c). Thus the 4 & 5 Ph. & M. c. 8, made the abduction of all girls under sixteen penal, though the pre- amble referred only to heiresses and other girls with for- tunes (d). So, the 13 Eliz. c. 10, which makes void all leases, gifts, grants and conveyances of estates, made by any dean and chapter, or master of an hospital, of any heredit- aments, parcel of the possessions of the cathedral church or hospital, except for the limited term allowed by the Act, was not narrowed or controlled by a preamble which recited only that divers ecclesiastical' persons, endowed of ancient palaces, mansions and buildings belonging to their benefices, not only suffered them to go to decay, but converted the materials to their own benefit, and conveyed away their goods and chattels to defeat their successors' claims for dilapidations (e). § 65. The 3 Jac. 1, c. 10, which, after reciting that the King's subjects were charged with conveying "felons and other malefactors and offenders against the law," to jail, punishable by imprisonment there, enacted that "every person " committed to the county jail by a justice "for any offense or misdemeanor," should bear his own charges of conveyance, if he had property, and that if he had not, they should be borne by the parish where he was apprehended, was held not to be confined by the preamble to offenders against the ordinary law, but to apply to deserters from the army (/). So, the preamble of the 22 Geo. 3, c. 75 (g), which recited the mischief of granting colonial offices to (a) Per Fortescue, J., in R. v. (d) Co. Litt. 88 b. n. 14. Athos, 8 Mod. 144. (e) York v. Middlesborough, 2 (b) Per Lord Denman, in Fellowes Y. & J. 196, 214. v. Clay, 4 Q. B. 349. (/) R. v. Pierce, 3 M. & S. 62. (c) Per Lord Teuterden, in Doe (g) Commonly attributed to v. Brandling, 7 B. & C. 660 ; and Burke, but really an Act of Lord see Copeman v. Gallant, 1 P. Wms. Shelburne's ; see Shelb. Life, 337. 320. v I PREAMBLE. ( § 65 persons who remained in England, and discharged the duties of their offices by deputy, was not suffered to exclude judi- cial offices from the general enacting part, which authorised the Governor and Council to remove "any" office-holder for misconduct: although the mention of delegation in the preamble showed that the judicial otlice was not there in contemplation (a). The 2 & 3 W. 4, e. LOO, which after reciting that the expense and inconvenience of suits for the recovery of tithes ought to be prevented by shortening the time required for the valid establishment of claims to exemption from tithes, enacted that when a claim to tithes was made by a layman, a claim to exemption should be deemed conclusively established by proof of non-payment for sixty years, gave rise to a celebrated legal controversy, in which the effect of the preamble was much considered. Before the passing of that Act, no layman could establish exemption from tithes, except by proving that the land in respect of which they were claimed had formerly belonged to one of the great Monasteries, and had been exempt in its hands; the latter proposition being usually established by such evidence of non-payment in modern times as sufficed for founding the inference of exemption. It was held by some of the judges (b), that the enactment was confined to claims of this kind ; and the preamble was invoked in support of this view. 13ut it was considered by others (c), and finally decided (d), that the Act applied to all cases whatsoever ; and that upon proof of non-payment for sixty years, the landowner was exempt, whether the land had ever been monastic or not. The enactment was free from ambiguity, and contained no flexible expression capable of different meanings (e) ; while the preamble, which one side under- stood as meaning that the expense and inconvenience of the same kind of suits as before ought to be prevented, was (a) Willis v. Gipps, 5 Moo. P. C. B., Parke, Alderson, and Piatt, 379, see p. 388. BB. (6)Wigram, V. C, Tindal, C. (d) By Lord Cottenham. J., Crcsswell, J., Patteson, J., and (e) Per Lord Cottenharn, in Coleridge, .1. Salkeld v. Johnson, 1 Mac. & G~ (c) Lord Denman, Williams, 204. Cullman, Erie, JJ., Pollock, C. § 65] PREAMBLE. 85 thought on the other to mean that expensive and inconve- nient suits ought to be prevented in all cases ; and that this was best affected by giving the more easy method of estab- lishing exemptions by simple proof of non-payment for a certain rime (a). Where the preamble is found more extensive than the enacting part, it is equally inefficacious to control the effect of the latter, when otherwise free from doubt. For instance, the Act of 3 W. & M. c. 14, s. 3 (b), which gave creditors an action of " debt " against the devisees of their debtor was held not to authorise an action for a breach of covenant, or for the recovery of money not strictly a " debt " (e) ; though the preamble recited that it was not just that bv the contrivance of debtors their creditors should be defrauded of their debts, but that it had often happened that after binding themselves by bonds "and other special- ties" they devised away their property. The mention, it was observed, of the action of debt in the enacting part was almost an express exclusion of every other (d). An Act, which made it penal to dye seeds so as to give them the appearance of seeds of " another kind," could not be extended to similar manipulations of old or inferior seeds, to make them appear as new of the same species, by a recital that the practice of adulterating seeds in fraud of the Queen's subjects, and the detriment of agriculture required repression ( further powers were granted (a). Such an extension of the Act, however, would have required very clear words, since it would have had the effect of throwing on the ratepayers of one year a burden properly belonging to those of another (l>). § 66. It has been sometimes said that the preamble may extend, but cannot restrain the enacting part of a statute (c). But it would seem difficult to support this proposition (d). Several of the cases above cited might be referred to as instances of a restricted meaning having been judicially given to an enactment by its preamble (e). It could hardly be doubted that a statute which, in general terms, made it felony to alter a bill of exchange, would be restrained to fradnlent alterations, by a preamble which recited that it was desirable to suppress cheats and frauds effected by altering bills {/). The function of a preamble is to explain what is ambiguous in the enactment ((/), and it may either restrain as well as extend it as best suits the intention. [That is r where the not restraining the generality of the enacting clause will be attended with an inconvenience or particular mischief, it shall be restrained by the preamble; otherwise not." But the preamble of general purview of the act ought not to be permitted to restrict a section in it, where the same is not inconsistent with the spirit of the whole enactment." It is scarcely necessary to add that a defective or repugnant preamble cannot nullify or render void or inoperative an (a) Market Harborough v. Ketter- holme: Emanuel v. Constable; ing, L. R. 8 (J. 15. 308. Biyan v. Child; Salkeld v. John- {&) See §§ :;4."i et seq. son, sup pp. 71), 80, 8."), and infra, (c) R. v. Atbos, 8 Mod. 144, p. 88. See also per Cur., R. v. Copeman v. Gallant, 1 P. Wms. Manchester, 7 E. & B. 453, 26 L. .1. 820 ; per Lord Abinger in Walker M. C. 65 ; Hughes v. Chester R. v. Richardson, 2 M. & W. 889; Co., 1 Dr. & Sm. 524 ; Wigan v. per Will •■-. •!., in Hayman v. Flew- Fowler, cited 1 Stark, 459. ker. 13 C. B. N. 8. 526, 32 L. J. (/) R. v. Bigg, 3 P. Wms. 434, C. P. Vol ; per Turner, L. J., in arg. Drumraond v. Drummond, L. R. (g) The People v. Utica Tnsur. 2 Cb. 44; per Ciowder. J., in Co., 15 Johns. K Y. Rep. 389. Hearns v. Cordwainer's Co., 6 C. 4S Seidenbender v. Charles, 4 B. N. S. 388. Serg. & R. (Pa.) 151, 166, per Gib- (d) See ex. gr., per Parker, C. B. son, J., cit, Ryall v. Rowles, 1 ami Lord I lardwicke in Ryall v. Vez. 365. Rolle, 1 Alk. 174. 182. ^ Snitou v. Sutton, L. R. 22 Ch. (< i R. v. Gwenop, 3 T. R. 133; D. 521. R. v. Bateman ; Edwards v. Rus- § 67] PREAMBLE. 87 act in which the intention of the lawmakers is clear without aid from the preamble." 7 § 67. Matters Similar to Preamble. Recitals.— [The Cases already quoted involved the effect of the general clause pre- fixed to the whole of the statute, and properly called the preamble. Sometimes, however, a similar clause is pre- fixed to one section, or a group of sections, and it may then be distinguished by the name of recital, 48 the effect of such recital being much the same as that of the preamble. 49 Thus a recital, in the fifth section of 11 and 12 Yic. c. 44, that it would conduce to the administration of justice, and render more effective and certain the performance of the duties of justices and give them protection in the performance of the same, if some simple means were devised whereby the legality of any act done by such justices might be considered by a court of competent jurisdiction, and such justices enabled and directed to perform it without risk of action, was given the effect of restricting the enacting clause, provid- ing that in all cases where a justice refused to do " any act," an application might be made for a rule calling upon him to show cause why he should not do it, in such manner, that the words " any act " must be taken to mean any act against the consequences of which a justice needed protection. 60 On the other hand,] the 5 Geo. 4, c. 84, s. 26, which after reciting that transported felons in New South Wales, after obtaining remissions, sometimes " by their industry acquired propertv. in the enjoyment whereof it was expedient to protect them," enacted that every felon who received such remission should be entitled to sue for the recovery of any property, real or personal, acquired since his conviction, was held not limited by the preamble to property acquired by his own exertions, but applied to all property howsoever acquired, as for instance by inheritance (a). 47 Erie, &c. R. R. Co. v. Casey, Earl of Shrewsbury v. Beazley, 19 26 Pa. St. 287. C. B., N. S., at p. 681. 43 Wilb., p. 282. 60 R. v. Percy, L. R. 9 Q. B. 64. 49 The same figure of speech See also Johnstone v. Huddleston. (ante, p 62) by which Lord Coke 4 B. & C. 922, 936 ; "\\ inn v. Moss- and Chief Justice Dyer described man, L. R. 4 Ex. 292 ; Wilb., pp. the preamble having been applied 282-285. to such recital by "Wi lies, J., in ('0 Gmigh v. Davies, 2 K. & J. 623, 25 L. J. 677. 88 PREAMBLE, ETC. [§§ GS, 69 § 68. Reports of Committees. Petitions. Maps. [All effect similar to that of a preamble was given to the report of a committee presented and adopted with an ordinance, as show- ing its reason, 61 and the report of commissioners who drafted the Pennsylvania act of 8 April, 1833, relating to wills, was looked at by the Supreme Court of that State in construing the sixth section of the act, prescribing the mode of execu- tion, so far as to aid in ascertaining its "primary and princi- pal object." 54 [Again, in the case of an act authorizing a municipal cor- poration to make grants of land under water, the preamble reciting a part of the petition of the city government upon which the act was based, it was held that both the preamble and the petition might be referred to, to remove ambiguities in the act itself. 53 [Where a map was used by the Legislature while con- sidering an act, and referred to in the act itself, it was held to be thereby incorporated into and made part of the act. 64 ] § 69. Chapter, Section, etc., Headings. — The headings pre- fixed to sections or set of sections in some modern statutes are regarded as preambles to those sections (a). The 137th section of the Bankrupt Act of 1849, which enacted that a judge's order to sign judgment, given by a trader defendant, should be void if not filed, was held limited to traders who became bankrupt, by the heading prefixed to the section which professed to enact it "with respect to transactions with the bankrupt" (h). A wider construction, it may be added, would have had the unjust effect of enabling the 51 Muncipality No. 2 v. Morgan, disregarded," as being "not only 1 La. An. 111. of no value," but " delusive and 62 Baker's App., 107 Pa. St., 381, dangerous." 388, in conjunction, however, with M People v. Dana, 22 Cal. 11. other decisions declaring the same (a) Sec ex. gi\, Bryan v. Child, 5 result. Ex. 368 ; Shrewsbury v. Beasley, ' Furman v. New York, 5 IDC B. N. S. 651 ; E. C. R. Co. Sandf. (N. Y.) 16. Compare, v. Marriage,!) II. L. 41 ; Latham however, ante, £ :;:!. and Bank of v. Lafone, L. R. 2 Ex. 11!) ; Ham- Pa. v. Com'th, 1!) Pa. St. 1 II, L56, mersmith Ry. Co. v. Brand, L. R. where it is said that "evidence of 1 II. L. 171 '; Lang V. Kerr, 3 App. public embarrassment the proela- 536; Comp. Broadbcnl V. Imperial mation and message of the Cover- Gas Co., 7 Dc G., M. & G. 4'.U>. nor, the journals of the House of (i) Bryan v. Child, 5 Ex. 368, 1 Representatives, and the repori of L. M. & P. 429. its committees, should be wholly I GO] CHAPTER, ETC., HEADINGS. 89 trader who hud not become bankrupt to set aside as void his own deliberate act, an intention not to be imputed to the Legislature, if the language admits of any other meaning (a). [The effect, however, upon the interpretation of a statute, of its division into parts to which appropriate headings are pre fixed, is a matter upon which judicial opinions are much divided. It is said by an eminent writer, that " the chapter headings and thelike.in the revisions of statutes and in codes, are deemed to be of somewhat greater effect than theordinary titles to legislative acts." 55 It is, indeed, said that " Those headings are not titles of the acts, bnt are parts of the statute, limiting and defining theireffect." 56 Accordingly, in consider- ing the governor's power of appointment by virtue of a section under a heading " Of the public officers of this State others than militia and town officers," it was said : " The power of appointing militia officers is, by this heading, expressly excepted from the effect of this language. It is an explicit declaration that the authority thus conferred, does not reach the case of a militia officer. 57 Similarly, it has been held, that, the division of a statute into separate subjects or articles, with appropriate headings, makes the provisions of each article controlling upon the subject of the same, as a general rule for determining such questions as may be embraced therein ; 68 and that the chapters and titles in a revised body of laws are to be regarded as of greater influence in the construction of the provisions collated under them, than can be accorded to the title of a statute in ordinary." 9 So, where, in a statute, 00 a series of sections" was preceded by the general heading " with reference to the construction of the railway and the works connected therewith " it was held that (a) See §g 267-269. " lb., at p. 118. And sec to 65 Bisliop, Written Laws, § 46, similar effect : Bishop v. Barton, p. 47, citing, in support of this 2 Hun (N. Y.) 436. statement : Barnes v. Jones, 51 B8 Griffith v. Carter, 8 Kan. 565. Cal. 303 ; People v. Molyneux. 40 59 Barnes v. .Tones, 51 Cal. 303. N. Y. 113; Huff v. Alsup, 64 Mo. See Huff v. Alsup, 64 Mo. 51, 51 ; Griffin v. Carter. 8 Kan. 565 ; where it was held that t lie divisions Battle v. Shivers, 39 Ga. 405 ; into chapters in Wagner's Statutes The State v. Popp, 45 Md. 432 ; U. had not the force of legislative S. v. Fehrenback, 2 Woods, 175 ; enactment. Nicholson v. Mobile, &c. Railroad, 60 Railway Clauses Consolidation 49 Ala. 205. Act, 1845 ; 8 and 9 Vic. c. 20. 56 People v. Molyneux, 40 K Y. 81 6-24. 113, 119. 90 CHAPTER, ETC., HEADINGS. [§ 70 this heading so limited the words of the sections that the com- pensation they provided applied only to cases of injuries caused by the construction and not to those of injuries caused by the use, of the railway." § 70. [On the other hand, it is undoubtedly a sound rule of construction, and one which has been followed in a multi tude of cases, that, where the intention of the Legislature can be gathered with certainty, 83 that intention, rather than the collocation of the different branches of a provision leading to a different conclusion, is to govern the interpretation. "* It would seem to follow, that the fact that a particular pro- vision is placed in a group prefaced by a particular heading, should not give the latter any very great weight in either extending or restricting the plain language of the provision, nor prevent a construction of it in connection with, and in the light of other provisions in other parts of the statute, classed under different headings, where, in the absence of such a division and classification, a comparison of all such provisions would be proper. It may be regarded as the sound view, that the grouping of provisions in an extended statute, a code, or a revision of laws, is, in general, designed for "convenience of reference, not intended to control the interpretation.'"" Or, at most, it may be regarded as indicat- ing the opinion of the draftsman, the legislators, or codifiers, as to the proper classification of the various branches of the enactment ; which may or may not be accurate. 66 The mere classifications can scarcely be deemed a part of the law. 6T " The only satisfactory and safe rule of construction to be adopted, is to read and construe together all sections of the Code relating to the same subject matter, without reference to the particular article or heading under which they may be placed." 68 Hence the generality of a heading under 6' 2 Brand v. Hammersmith Ry. legislative journals : Matthews v. Co , L. R. 1 Q. B. 130 ; 2 Q. B. Com'th, IS Gratt. (Va.) 989. 223 ; 4 H. L. 171. 64 See Ibid., and post. § 318. 63 E.g. , by the reason of the C5 Union Steamsh. Co. v. Mel- thing,— by grammatical construe- bourne Harbour Trust, L. R. 9 tioa of the section as it stands. App. Cas. 363. showing that a certain clause M See Battle v. Shivers, 39 Ga. should follow another,— by the 403. context,— and by reference to the 61 Ibid. «s s tate v . Po PP) 45 Md. 432. § 71] SCHEDULES. 91 ■which a particular provision is placed will not be permitted to extend the proper meaning of the same. Thus a provision as to when judgments shall become dormant was not deemed to be affected by a general act suspending all statutes of limitation, simply because the former appeared, in the code, as part of the chapter devoted to statutes of limitations. 6 ' Nor will such heading be given the effect of unduly restrict- ing the meaning of such a provision, or of a phrase used in the same. Hence, where one section in a group covered by a general heading obviously refers to a subject matter which is separate and distinct from that specified in the heading and dealt with in the remaining sections under the same, it is to be construed without regard to the heading. 70 To illustrate : where a section 71 which gave compensation for injury to land formed one of a group prefaced by the words " with respect to the purchase and taking of lands otherwise than by agree- ment," it was held that this heading did not limit the effect of the section, or render it "an enactment relating to the taking of land by compulsion when it obviously has reference to no such purpose." 72 So, where an act provided, that "In the construction and for the purpose of this Act, the following terms shall, if not inconsistent with the context or subject matter, have the respective meanings hereby assigned to them," and then provided that "Person shall include a corporation," and Part ii. of the act was headed " officers ;" it was held that the words " person" occurring in that group was not to be confined to " officers," because of the heading, since other matters besides officers were included as the subject matters of the same. 73 § 71. Schedules.— [A schedule to an act, it is said, is not itself an enactment, though it may be an aid in explaining one that is doubtful. 74 As such, it cannot, of course, con- trol the positive words of the statute itself. So, where an « 9 Battle v. Shivers, supra. Ry. Co., L. It. 4 H. L. 171, 217. ™ Wilb., p. 296. ' a Union Steamsh. Co. v. Mel- 11 § 68, Laud Clauses Act, 8 and bourne Harbour Trust, L. R. 9 9 Vic. c. 18. App. Cas. 305. " Broadbent v. Imper. Gas Co., ' 4 R. v. Epsom, 4 E. & B. 1003, 7 De G., M. & G. 436, 447, 448 ; 1008, 1012, per Lord Campbell, C and see Brand v. Hammersmith, J. 92 RESUME. [§ 72 act provided that two sworn appraisers should value goods distrained for reut, and the schedule to a later act specified sixpence in the pound as the charge for appraisement, " whether by one broker or more," it was held that this did nol repeal the requirement of two appraisers." A form given in a schedule, especially if there is no reference to it in the body of the act, is to be regarded merely as an exam- ple. 78 And even where such reference is made, if the form given in the schedule diverges from the plain requirements of the body of the act, it cannot be held to repeal the same ; as, where the act provided that all informations exhibited before any justice or justices of the peace for any offense against the customs should be drawn in the form or to the effect in the schedule annexed to the act, and the form in the schedule used words indicating that the information was supposed to be made before two justices, it was held that this circumstance did not override the provisions of the act ; that the information might be made before one justice; and that the form prescribed might be accordingly modified. 77 ] § 1'2. Resume.— In a word, then, it is to be taken as a fun- damental principle, standing, as it were, at the threshold of the whole subject of interpretation, that the intention of the Legislature is invariably to be accepted and carried into effect, whatever may be the opinion of the judicial inter- preter, of its wisdom and justice. If the language, [read in the order of its clauses, 78 presents no ambiguity and] 15 Allen v. Flicker, 10 A. &. E. cases upon this subject would seem 040. to be, that the form prescribed in "Hannah v. Whyman, 2 C. M. the schedule must be followed if & R. 239. this can be done without incon- « It. v. Russell, 13 Q. B. 237. venience or sacrifice of the effect It follows, that, where a form is and operation the act isintendedto prescribed by a schedule, it is "only have; but that, where such would to be followed implicitly so far as be the consequences of strictly fol the circumstances of each case may lowing the prescribed form, the admit :" Bartletl v. Gibbs, •""> M. A; latter, "which is madeto suit rather G.,atp.96. But see, for instances the generality of cases than all in which it was held that the forms cases, must give way:" R. v. < lained in the shedules to Ads Barnes, 12 A. A- E. 227. And see of Parliament must be strictly fol- Wilb., pp. 306-308, from winch tins lowed: Davidson v. Gill, l East, note and the above section is main- 64 ; R. v. Pinder, 24 L. J. Q. B. ly compiled ; and post, § 197. lis; l.iveroool Horough B k v. 18 See Poor v. Considitie, 6 Wall. Turner, L4 J. & II. L59 ; 'J De <;., 458. F. & J. 50-2. The result of the § 72] RESUME. 93 admits of no doubt or secondary meaning, it is simply to be obeyed, without more ; [for the intention, controlling though it be, can be resorted to only to find what the Legislature intended to do, not what it has done. 79 ] If it admits of more than one construction, the true meaning is to be sought, [first of all, in the statute itself 80 as applied to the subject matter to which it relates' 1 ] — not on the wide sea of surmise and speculation, 82 but " from such conjectures as are drawn from the words alone, or something contained in them " (a) ; that is, from the context viewed by such light as its history may throw upon it, and construed with the help of certain general principles, and under the influence of certain presumptions as to what the Legislature does or does not generally intend. 79 Leavitt v. Blatchford, 5 Barb. 81 Brewer v. Blougher, 14 Pet. (N. Y.) 9. 178. 80 Tyman v. Walker, 35 Cal. 634; Si Cearfoss v. State, 42 Md. 403. Virginia, etc. R R. Co. v. Lyon (a) Puff. L. N. C. 5, c. 12, s. 2,, Co., 6 Nev. 68. note by Barbeyrac. 94 SUBJECT MATTER AND OBJECT. [§ 73 CHAPTER IV. Pre8UMption8 Arising from Subject Matter and Object of Enactments, as to Language used. § 73. Words Construed with Reference to Subject Matter and Object. § 74. Technical Meaning. § 76. Popular Meaning. § 78. Ordinary Meaning Preferred. £ 81. Rules of Grammar. § 83. Commercial, etc., Terms. § 84. Meaning Differing in Different Localities. § 85. Meaning of Words at Date of Enactment. § 8G. Restriction of General Words to Subject Matter, etc. 8 87. "Persons," and other General Words. § 91. "Inhabitant," "Resident," etc. § 95. " Occupier, ' etc. § 96. "Owner." § 97. Additional Illustrations. § 102. Object may Supply Unexpressed Condition. § 103i Beneficial Construction. § 104. "Done" including "Omitted." § 105. Qui Facit per Alium, etc. § 107. Liberal Construction of Remedial Acts. § 108. What are Remedial Acts. § 110. Extension beyond Letter. General Intent. § 112. Extension to New Things. § 73. Words Construed with Reference to Subject Matter and Object. —The words of a statute are to be understood in the sense in which they best harmonize with the subject of the enactment and the object which the Legislature has in view (a). Their meaning is found not so much in a strictly grammatical or etymological propriety of language, nor even in its popular use, as in the subject or in the occasion on which they are used, and the object to be attained (b). [That is, in the construction of a statute, as in that of other instru- ments, words are to be understood, not according to their mere ordinary general meanings but according to their ordi- (a) Sup 8 27 & C. 136 ; Grot, de B. & P. b. 2, s. (b) Per Cur. in R. v. Hall, IB. 16 ; Puff. L. N. b. 5, c. 12, s. 3. § 73] SUBJECT MATTER AND OBJECT. 95 nary meaning as applied to the subject matter with regard to which they are used, unless indeed there be something requiring them to be read in a sense which is not their ordinary sense in the English language as so applied. 1 " It is a general and very sound rule, applicable to the construction of every statute, that it is to be taken in reference to its sub- ject matter." 8 And equally the construction ought to be with reference to the object to be accomplished by the act, 8 and to keep in view the conditions existing. 4 ] This is evi- dent enough in the simple case of a word which has two to- tally different meanings. The Act of Ed. III., for instance, which forbade ecclesiastics to purchase *' provisions " at Rome, would be construed as referring to those papal grants of benefices in England which were called by that name, and not to food ; when it was seen that the object of the Act was not to prevent ecclesiastics from living in Rome but to repress papal usurpations (c). [" The same words might mean a very different thing when put in to impose a tax, from what they would mean when exempting from a tax." 5 ] The " vagabond " of the Vagrant Act, is not the mere wanderer of strict etymology (d). No one is likely to confound the " piracy " of the high seas with the*' piracy " of copyright; or to give, in one branch of the law, the meaning which would belong, in another, to a host of familiar words, such as "accept," "assure," " issue," " settlement." In the Succession Duty Act, which provides that the instalments of duty payable by a successor shall cease at his death, except when he is "competent to dispose by will of a continuing interest in the property," the competency intended is obviously not mental sanity or freedom from personal inca- pacity, but the possession of an estate of inheritance which 1 Lion Ins. Ass'n v. Tucker, L. 3 People v. Dana, 22 Cal. 11, and R. 12 Q. B. D. 186. infra. 2 Sedgw. p. 359. And see to 4 Anderson v. R. R. Co., 117 same effect : Brewer v. Bloughcr, 111. 26. 14 Pet. 198 ; Op. of Justices, 7 (c) 1 Bl. Coram. 60 ; Statutes of Mass. 523 ; State v. Mayor of Pat- Provisors or Praemunire passed in erson, 35 N. J. L. 197 ; Catlin v. 1343, 1353, 1364, 1390, and 1401. Hull, 21 Vt. 152; Ruggles v. 6 Blackburn, J., in Rein v. Lane, Washington Co., 3 Mo. 496; and L. R. 2 Q. B. at p. 151. illustrations infra. See also, Bisb., (d) Mo nek v. Hilton, 2 Ex. D. Writt. Laws, §3 95a, 98a, 111, and 268. cases cited. 96 81 BJE< I M \ I liu AM' OBJECT. [§74 is capable of disposition bj will (a). The Gas Works Con- Bolidation Act, did not, by calling the debt due for gas, "rent," authorize a distress for the debt under the Bankrupt Act, which regulates the power of distress of a landlord " or ,,th r r person to whom 'rent' is due" l>y the bankrupt (b). The Mutiny Acts which exempt soldiers from the payment of tolls over " bridges," would not carry the exemption to a steam ferry boat, because it is called a floating bridge (<•>. The enactment which prohibited parish officials from being concerned in contracts for supplying goods, materials or pro- visions, " for the use of the workhouse," meant " for the use of the persons tn the workhouse," and therefore did not apply to a contract for the supply of materials for the repair ot the building, (d) [A moving train of cars is not a "struc- ture" such as contemplated by an act making- railway companies liable for injuries on the highway by structures legally placed by them upon it. 6 § 74. Technical Meaning.— [An obvious result of this rule is, that,] where technical words # are used in reference to a technical subject, they are primarily interpreted in the sense in which they are understood in the science, art, or business in which they have acquired it (e). [Thus, upon subjects relating to courts and legal proceedings, the Legislature may (a) 16 & 17 Vict. c. 51, s. 21 ; Attorney-General v. Hallett, 3 11. & N. 868, 37, L. J. 89. See also R. v. Owen, 15 Q. B. 476. As to a judgment being "final," Kids- dale v. Clifton, 2 P. D. 376, 46 L. J. 27. [See 5 74, note 9.] (6)33 & 33 Vict. c. 71, s. 34; Exp. Hill. 6 Ch. 1) 63, 46 L. J. lie,. As to " tolls" in railway acts, see the cases collected in the judgmenl of Field. J., in Brown v. G. W. R. Co., 9 Q. B. 1). 750. That water "rates" paid by con- sumers of water supplied through municipal water-works are not taxes, see Jones v. WaterComm'rs of Detroit. 34 Mich. 373. \u<\ see Smith v. Philadelphia, 81 Pa. St. 38 ; Girard, etc., Co. v. Philadel- phia, H8 Id. 393, 394. (c) Ward v. Gray, 6 B. & S. 345. (d) 53 Geo. 3, c. 137, s. 6 ; Bar- ber v. Waite, 1 A. & E. 514 ; Comp. 4 & 5 Wm. 4. c. 76. s. 77. 6 Lee v. Barkhampsted, 46 Conn. 213. But under a statute giving mechanics' liens to mining claims, a mine or pit sunk was deemed a "structure:'' Helm v. Chapman, 66 Cal. 391. (e) Grot. b. 3, c. 16, s. 3 ; Vattel, b. 3, s. 376 ; Evans v. Stevens, 4 T. R. 463, per Lord Kenyon ; Morrall v. Sutton. 1 Phil. '533; Doe v. .lesson, 3 Blic;h, 3 ; Doc v. Harvey, 4 B. & C. 610 ; Abbot v. Middleton, 7 II. L. 68. 38 L. J. Ch. 110; The Pacific, 33 L. J. P. M. & A. 120 ; see per James, L. J., in Boucicault v. Chatterlon, 5 Ch. I). 37.-,. [Clark v. Utica, 18 Barb. (N. Y.) 451, and see ante, §§ 3, 3,. and infra.] ^71] SUB.IF.CT MATTER AND OBJECT. 97 be presumed to speak technically, unless, from the statute itself, a different use of the language may be apparent. 7 Hence where at act] gave the effect of judgments to rules of Court, for the payment of money, and a later one (the Common Law Procedure Act, 1854, s. GO) authorized creditors who obtained judgment to recover the amount by the new process, which it introduced, of foreign attachment,, it was held that this remedy did not apply to rules of Court, the object of the former Act appearing to be merely to give to rules the then existing remedies of judgments, and of the latter, to confine the new remedy to judgments in the strict acceptation of the term (a). [And where an act directed that the coroner should serve process in cases in which the sheriff was a parti/, it was held that he must be technically a party, and that his merely being interested in a suit was not sufficient. 8 So, where an act declared that a judgment entered in certain proceedings should be final, it was declared that the word should be taken in its technical sense and as precluding an appeal. 9 Again, proceedings in insolvency were held not to be an action within the meaning of that word in a statute saving from the effect of the pass- age or repeal of an act actions pending at the time. 10 Nor does the term proceeding in the provision of a code, that "no action or proceeding commenced" before its adoption shall be affected by it, include a judgment, the latter, being an entire act, and incapable, in any proper sense, of being said to be commenced before a certain day." Nor is an election covered by a similar clause as to "proceedings." 15 Nor, again, is a petition for partition an action within the meaning of a statute giving costs, to the prevailing party in all actions. 13 A writ of levari facias sur mortgage is civil process within the meaning of the Pennsylvania stay-laws ;" 'Merchants' B'k v. Cook, 4 K C. (N. Y.) 422. Pick. (Mass ) 405. 9 Snell v. Bridsrewater, etc., Co., (a) lie Frankland, L. R. 8 Q. B. 24 Pick. (Mass.) 206. 18 ; Best v. Pembroke, L. II. 8 Q. 10 Belfast v. Folger, 71 Me. 403. B. 363. " Daily v. Burke, 28 Ala. 328. 8 Merchants' B'k v. Cook, 13 Gordon v. State, 4 Kan. 489. supra. See, for similar con- I3 Couuce v. Persons Unknown, struciion of "party" under act 76 Me. 548 ; Comp. post, § 77. compelling production of books, u Coxe v. Martin, 44 Pa. St. etc. : Adriance v. Sanders, 11 Abb. 322. 7 98 SUBJECT MATT Eli AND OBJECT [§ 75 and so is a writ of assistance with fieri facias for costs. 1 ' But a landlord's distress warrant is not "process" within the meaning of the act making the obstruction of process as indictable offence." A provision abolishing imprison- ment for debt does not prohibit commitments under attach- ment for failure to comply with an order of the court. 17 And where a statute authorizes a criminal prosecution to be instituted on complaint, the technical meaning of that term implies a complaint under oath or affirmation ; 18 and the requirement of service of a notice means personal serWce unless otherwise specified. 19 § 75. [But the rule giving to a word its technical mean- ing holds equally good in the construction of statutes deal- ing with other subjects as to which words and phrases used in a statute have acquired such a meaning, whether it be a legal technical meaning or not ; i. e., whether it be a techni- cal meaning which the word or phrase has acquired in the law, or a technical meaning which it has acquired in any other science, art, or business, if the enactment relates to any of these, the technical meaning the word has in the law, in any other science, in any art, or in any business is to be given to it, accordingly as the one or the other is the subject of the enactment. [It has already been seen, 20 that a word which has a settled common law meaning, when used in an act upon the subject- matter as to which it has acquired such meaning, is to be so understood. So, in dealing with criminal or penal mat- ters, the statute is presumed to use its language with refer- ence to the ascertained meaning of the language of the criminal law. The word steal thus implies simple larceny, 21 the word murder malice aforethought, 23 and the word rob- bery its technical significance. 23 An act declaring that " all 15 Clark v. Martin, 3 Grant (Pa.) 19 Ruthbun v. Acker, 18 Barb. 393. (N. Y.) 393. 16 Com'th v. Leech, 27 Pitts. L. -° Ante, § 3. J. (Pa.) 233. -' Alexander v. State, 12 Tex. 11 Wood v. Wood, Phill. L. (N. 540. C.) 538. Compare ante, § 14, -State v. Phelps, 24 La. An. Pierce's App., 102 Pa. St. 27. 493. 18 Campbell v. Thompson, 16 ™ U. S. v. Jones, 3 Wash. 209. Me. 117. / § 75] SUBJECT MATTER AND OBJECT. 99 ioint obligations and covenants shall hereafter be taken and .J o held to be joint and several obligations and covenants," was, because of the technical sense of the word obligation, when used with reference to the contract itself, not the duty or liability arising thereon, 24 held not to include oral ones. 25 Similarly the word purchaser, having a well-defined techni- cal meaning, including every holder of the legal title to real and personal property where such title was acquired by deed, was, when used in a statute, held to embrace a mort- gagee. 28 And, upon the same ground of technical meaning, the same words were declared not to include a judgment creditor, under the Pennsylvania recording act protecting ■certain purchasers and mortgagees against unrecorded mort- gages. 27 Again, under the Pennsylvania married women's act of 1848, which declared that the property of such mar- ried woman should be her " sole and separate " property, free from the control of her husband, etc., it was decided, that, in conformity with the accepted technical meaning of that phrase, the proper construction of the act was to make the property of a married woman hers in all respects as if set- tled to her sole and separate use, and that the rules of law governing such estates in equity were thereafter to be applied to the legal estates of married women under the statute. 28 Again, under an act prohibiting preferences of creditors in assignments for the benefit of creditors, it was decided that a mortgage for the benefit of creditors was not included, an assignment importing an absolute transfer. 29 24 See Crandall v. Bryan, 15 stated that no purpose could be How. Pr. (N. Y.) 56, as to incur- discovered from the act, ils objects inc; an obligation by fraud. or preamble, to protect judgment 25 Exch. B'k v. Ford. 7 Col. 314, creditors ;) Hiester v. Fortner, 2 cit. Sturgis v. Cowninshield, 4 Binn. (Pa.) 40; Cover v. Black, 1 Wheat. 193 ; Gage v. Bank, 17 111. Pa, St. 493 ; Stewart v. Freeman, 62 ; Strong v. Wheaton, 38 Barb. 22 Id. 123. ; Rawley v. Raw- being used in reference to the same ley. 1 Q. B. D. 4G0. subject matter, were all held to be 4 * Cortun v. Ball, 4i Barb. (N. substantially synonymous. Com- Y.)452; Lux v. Hasrgin, 69 Cal. pare ante, § 74. 255 ; Coatsworth v. Barr, 11 Mich. 4S McBride's App., 72 Pa. St, 480; 19!). Gyger's App., 74 Id. 48 ; Taylor v. 46 Fleming v. Burgin, 2 [red. Eq. Kelly, 80 Id. 95. (N. C.)584. (b) R. v. Hants. 1 B. & Ad. 41 Lansdale v. Cox, 7 J. J. Marsh. 654 ; R. v. Purdey, 34 L. J. M. C. (Ky.) 391. And sec Calderwood v. 4 ; 5 B. & S. 909. See R. v. Brad- Calderwood 38 Vt, 171, where, in laugh, 2 & 3 Q. B. D. & 47 & 48 an act providing thai interest shall L.J. R 77] BUBJECT MAI I i.i: am> OBJECT. L05 AmeDdment Act of 1852, which enacted ili.it any "party" who made an affidavit in a suit should he liable to cross-ex- amination (a). [And, whilst, in a statute regulating applica- tions for change of venue, the term " party " was held to signify all the plaintiffs, or all the defendants in an action, in a statute relating to the challenging of jurors, each of the several defendants, acting upon separate defences, is to he deemed a " party." 49 ] The 17 Geo. 3, C. 20, which, after requiring the registration of annuities, to check, as the pre- amble states, the pernicious practice of raising money by the sale of life annuities, except annuities charged on lands whereof the grantor is "seized in fee simple or fee tail in possession," was construed as including in this exception a person who was tenant for life with a general power of appointment ; for such a person, though not technically a tenant in fee simple, is substantially so, since he is the absolute owner of the property (b). Although the word" children" is confined technically to legitimate children (c) it would be construed as including illegitimate children, when such seemed to be more consonant to the intention. Thus, the Marriage Act, 26 Geo. 2, c. 33, which declared void the marriage of minors without the consent of their parents or guardians, was held to apply to illegiti- mate children, since clandestine marriages by them were within the mischief which it was the object to remedy (d) ; and the 4 ec 5 Ph. & M. c. 8, s. 3, which made it penal to take an unmarried girl under sixteen from the possession of her parents, against their will, was held to apply to the taking of a natural daughter from her putative father (e). (a) 15 & 16 Vict. c. SO, s. 40 ; Re the meaning of the bankruptcy act Quartz Hill Co., 21 Ch. D. 642. so as to authorize an order com- • 19 Rupp v. Swineford, 40 Wis. pelling its payment to the trustee.] 28 (c) R. r. Helton, Burr. S. C. 187, '(b) Halsey v. Hales, 3 T. R. 194. 2 sua. lies : R. ,-. Birmingham, 8 Comp. Leach v. Jay, L. R. 9 Ch. <>. B. 410; R. v. Maude. 2 Dowl. D. 42, 47 L. J. 876. [A voluntary N. S. 58; Simmons v. Crook, L. allowance granted hy the Secretary R. 6 H. L. 265. [Technically of Stale, for [ndia, to an officer of " next of kin " includes only legiti- the Indian army on his compul- male persons : McCool v. Smith, 1 sow retirement, to which the re- Black 459.] cipient has no claim, and which (d) R. r. Hoduett, 1 T. R. 96; may be withdrawn at the discretion and sec R. o. St. Giles, 11 Q. B of the Secretary, was, in Exp. 17:5 ; R. ». Brighton,l B. & S. 447, Webber, L. 1',. "is Q. B. D. Ill, i30 L. J. M. C. 197. held not to be "income" within (c) R. ». Cornforth, 2 Stra. 1162. 106 SUBJECT MATTER AND OBJECT. [§§ 78- [ And bo the words, "inherit," " heirs," " joint, heir," in a statute, were construed to embrace illegitimate children. 60 § 78. Ordinary Meaning Preferred.— [Indeed, it is probably not inaccurate to say that, as between two meanings of a word, the ordinary and popular meaning is, in general, to be preferred," and is most frequently in harmony with the subject matter and object of the enactment. A few additional illustrations will suffice to elucidate this subject. Thus the word '"state," in an act of Congress may include a territory ; 52 and in a state statute of limitations, the phrase " beyond seas," borrowed from the English law, has been construed to mean " out of the state ;" 53 whilst in Pennsyl- vania it has been held to mean "out of the limits of the United States," the saving of a right of action in favor of persons beyond seas being considered intended to operate in favor of persons in a foreign country, not of citizens of another state, who are under a common government, and, by the provisions of the federal constitution, entitled to the privileges of citizens of the several states. 64 Under an act providing, that, to enable a mechanic or other person fur- nishing material or performing labor to a contractor, to acquire a mechanic's lien, he must at or before the time he furnishes the material or performs the labor, notify the owner or his agent," etc., it was held that a verbal notifica- tion was all that could be required, such being the general significance of the word "notify." 66 § 79. [A township in Pennsylvania being unable to Comn Dorin v. Dorii), L. It. 7 II. Cobleigh, 13 N. H. 79 ; Pancoast L 568 • Dickinson o. N. E. R. Co., v. Addison. 1 LI. & .1. (Aid.) 320 ; 2' II ic 7:5.") 33 L. J. 91 ; Be Richardson v. Richardson, 6 Ohio, Wright 2K & J. 595. 125; Wesl v. Pickeisraer, 7 Id. so Swanson v. Swanson, 2 Swan. P. ii. 2:55 ; Stephenson v. Dor, 8 Tenn j 446 Blackf.(Ind.)508; Forbes v. Foot, 2 « Sec Scbrifer v. Wood. 5 McCord (S. C.) 331 ; Johnston v. Blatohf 215 ; Mayor of Wetumpka White, T. U. P. Charlt. (Ga.) 140 ; v Winter 29 Ala. 651; Gyger's Denham v. Holeman, 26 Ga. 182; Est 65 Pa. St. 311 ; Parkinson v. Field v. Dickenson, :; Ark. 409; State 14 Md 184; and cases in Wakefield v. Smart, 8 Id. 488. ntte^c^S 2 76 54 Ward v. Hallam, 2 Dall. (Pa.) m /.V Bryant. Deady, 118. 217 ; 1 Ycates 329; Thurston v. " Murray v Baker, 3 Wheat. Fisher, 9 S. & II. (Pa.) 288 ; Kline 541 • Shelby v. Guy, 11 Id. 361 : v. Kline, 20 Pa. St. 503; Gondcr Bank of Alexandria v. Dyer, 14 v. Estabrook, 33 Id 3,4 Pel 111- Faw v. Roberdeau, 3 M Vinton v. Builders, &c, Ass n, Cranch, 171 ; Ruggloa v. Keeler, 3 109 Ind. 351. See ante, §35. Johns. "(X. V.) 263; Galusha v. § 79] SUBJECT MATTER A.M. OBJECT. 107 procure volunteers under the Bounty law of 1SG4 for $300, the citizens voluntarily advanced money to pay bounties beyond that amount, with the understanding that it was to bo repaid when an act should be passed authoriz- ing taxation to repay the same. An act was passed, in 1865, authorizing taxation to repay all "loans made in good faith,"and it was held that the term "loans" should In- con- strued, not in its technical sense, as "debts contracted by persons authorized to borrow the money and make the township responsible," but as having- reference to ail claims upon the conscience and moral sense of the community relieved by the contribution referred to. 56 So it was held to be no objection to the defense of usury, in New Jersey, that the mortgage sought to be foreclosed was given in part of the purchase money, and not for a technical loan or lending. 67 The phrase " legal representatives," in an act relating to land was construed as synonymous (as, in popular usage, it may be said to be,) with " heirs and assigns." 6 ' The word " connection VB9 as applied to societies, is held to mean any relation, organic or conventional, by which one society is linked or united to another. 60 Asapplied to railways its common and popular significance is such an arrange- ment that freight and passengers can be conveniently passed from one to the other by transition of cars or other- wise. 61 And a " branch railroad," authorized by an act to be built, was held to include a short elevated railroad from the terminus of the main railway to another point." The phrase " laying out " as used in a statute relating to high- ways, includes not only the initiatory act of laying out the road by the selectmen, but also the acceptance of the survey by the town and the recording thereof ;" and in an act « Weister v. Hade, 52 Pa. St. co Allison v. Smith, 16 Mich. 474. S,c ante, 3 76. 405. 61 Diercks v. Kennedy, 16 N. J. •> P. & R li. R. Co. v. Cata- Eq. 2to. wissa. &c., K. R. Co. 53 Pa. St. 68 Com'lh v. Bryan, 6 Serg. & K. 20. (Pa.) 81. See also Duncan v. «* McAboy's App., 107 Pa. St. Walker, 2 Dall. (Pa.) -JO.-). Comp. 548. Warneckev. Lembea, 71 111. 91, 63 Wolcotl v. Pond, li) Conn. that legal or personal representa- 507. This interpretation was put tives may mean heirs, next of kin, on the ground of liberal coustruc- descendants. tion of a remedial and publicly 59 1 Mich. Comp. L., § 2032. beneficial act. X Q3 SUBJECT MATTER AND OBJECT. [§ 79 allowing a bounty to "any person liable to draft," who should furnish, etc., a substitute, the phrase "liable to draft" was held to refer to the whole process of drafting, not merely to the drawing of the name from the wheel, and to apply, not only to enrolled men, not yet drawn, but to drafted men as well. "' So, a "bridge" includes the necessary abutments. 011 And in its popular sense a bridge is viewed as the means for passage of persons, cattle, etc , so that a prohibition in a grant to a bridge company against the building of a bridge within a mile of the toll bridge provided for in the charter was held not to include a rail- road bridge, 00 and a statute making " all bridge structures" across any navigable stream forming the boundary of the state assessable as real estate in the county where located was held inapplicable to bridges constituting a railroad track exclusively." A barn, not connected with the mansion house, but standing alone, several rods distant from it, may be an outhouse, 08 and one standing eighty feet from the ■dwelling house, in a yard or lawn between which and the house there was communication by a pair of bars, may be embraced under the term " curtilage." 09 within the mean- ing of an act, its object and subject matter. The term " misdemeanor" in Wisconsin, Acts 1860, ch. 196, was held not to denote a criminal offence, but a trespass by the sheriff in his official capacity. 70 An act enabling married women to acquire land by "grant," includes a power to purchase by deed of bargain and sale." The word " destroy," in an act of Congress punishing with death a person destroying a vessel, means to unfit her for service, beyond the hopes of C4 Q V(i iTregon territorial act of L0 Dec., L850, were held to mean "term." 74 "Children," in a statute of distributions, aiming at the equal division of an in tate's estate, will include grand-children, so as not to dis- inherit the offspring of a deceased child ; 70 while the " ancestor from whom the estate came" has been held to mean the next ancestor. 7 ' A bank discounting a note, whilst not technically or literally the assignee of the note, is such nevertheless within the meaning of a statute excepting, from its provision removing the incompetency to testily on the score of interest, the case in which the assignor of the con- tract or thing in action is deceased, so as to leave its stork- holders under disability where the maker of the note has died. 77 Under an act which provides that the words " grant, bargain and sell," in a deed, are to be construed as a covenant of seisin, of quiet enjoyment, and against incum- brances, only such incumbrances are intended as affect the title, not such as affect the physical condition of the land, as roads and the like. 78 So, in ordinary parlance, there is a distinction between "sell" and "give," which will be regarded in the construction of those words in a statute ; the former meaning a transfer for a valuable consideration, the latter a gratuitous transfer, without any equivalent. 79 Again, the provision, in an act, invalidating all bequests,, etc., made to charities within one calendar month of the donor's death, relates only to the physical act of executing the deed or will, and not to the date from which, for certain purpose's and in the fiction of the law, the will is presumed to speak ; so that the addition, within one calendar month of the testator's death, of a codicil to a will executed more than one calendar month before that event, diminishing such a M U. S. v. Johns, 1 Wash. 363 ; tion of "next of kin" as exclud- 4 Dull. -I L2. ing representation. 13 U. S. v. At liens Armory, 2 " Foster v. Collner, 107 Pa. St. Abb. U. S. 305. 305. m Gird v. State. 1 Oreg. 308. ■" Memmert v. McKeen, 112 Pa. 15 Eslielman's A.pp., 7-1 Pa-. St. St. 316. Compare Stainbaugh v. 46. Smith, 23 Ohio St. 584. " 6 Clayton v. Drake, 17 Ohio St. « Parkinson v. State, 14 Mdj 307. See same case upon construe- 184. 110 SUBJECT MATTER AND OBJECT. [§ 81 bequest made therein and otherwise disposing of certain portions of the estate, will not invalidate the gift, upon any theory of constructive republication. 60 Similarly, a child born out of lawful wedlock before the date of the father's will, but rendered legitimate, by the force of a general statute, by the subsequent marriage of its parents after the date of the will, is not an after born child within the meaning of an earlier act which provides, that, where a person, having made a will, afterwards marries and has children not provided for in said will, and dies leaving a widow or child, he shall, so far as regards the widow or after-born children, be deemed to die intestate, this provision, according to its plain and unambigu- ous meaning, referring to physical birth, not legislative legiti- mation, after making the will. 81 Thus, too, the employment of a person in the United States service, with the rank of colonel, the employment not being in a military capacity, will not entitle him to a pension underact of 1832. 82 Perhaps more than in any other case, " where particular terms are used to describe objects of taxation, they should be construed according to their popular acceptation, not by any refined or strained analogies, and especially where that acceptation corresponds with the use of those terms in recent legisla- tion ;'' 83 so that a statute imposing a tax upon ground rents does not authorize a tax on a widow's interest in land secured to her in a proceeding in partition where the eldest son accepts, although her interest is in the nature of a rent charge. 84 § 81. Rules of Grammar.— [As the technical construction of the words themselves may have to give way to a more in- artificial interpretation, so the technical rules of grammar may, in the construction of sentences, be overridden by a more common-sense reading, based upon consideration of 80 Carl's App. , 106 Pa. St. 635. from the testator's death : lb. at p. The act refers to the signing and 642. attesting as the acts which are to 81 MeCulloch's App., 113 Pa. St. preeede death !)>' at least one cal- 247. endar month ; and, if the construe- B2 i\n*n\t v. U. S., 15 Leg. Iut. tion above stated were not correct, 318. See post, § 00, note 131. there could be no charitable 83 Deitz v. Beard, 2 Watts (Pa ) bequest at all. where, by .statute, 170. the will is declared to speak as ei lb. § 82] 81 BJE( I MAT! I i: AND OBJEl l. Ill the object and subject matter of the act, than could result from their strict application. "The grammatical construc- tion of a statute is one mode of interpretation. But it is not the only mode, and it Is not always the true mode. We may assume that the draftsman of an act understood the rules of grammar, hut it is not always safe to do so." 85 Thus, where an act prescribed that the Register should issue letters of administration to the widow, if any, or to such of the rela- tions or kindred of the decedent as by law might be entitled to the residue of the estate, etc., and then proceeded : "or lie may join with the widow in the administration such relation or kindred . . . as he shall judge will best adminis- ter the estate, preferring always, of those so entitled, such as are in the nearest degree of consanguinity with the decedent," etc., it was held that the phrase " preferring always," etc., applied not only to the joint administration with the widow, but also to cases where there was no widow, or where she renounced ; i. e., to the first clause, as well as to the second, separated from the former by a semi-colon, although, it was intimated, the rule of strict grammatical construction would have applied the phrase in question to the last clause only. 86 § 82. [So, the use of the future tense in a statute does not necessarily prevent it from having a present operation. An act of Congress directing that certain lands " shall be given " to certain persons, was construed as an absolute donation and as conferring a present right upon the bene- ficiaries. 87 The description in a statute of a cause of action, " if any damage shall happen," docs not obviate the appli- cation of the act to an existing case stated, if such an inten- tion otherwise appears. 88 The phrase "who shall come" into the state, was construed to include a married woman who had already come into the state when the act was passed. 80 85 Fisher v. Connard, 100 Pa. St. 8T Rutherford v. Greene, 2 63, 60, per Paxson, J. Wheat, 196. 86 Gyger's Est., 65 Pa. St. 311 88 Ludington v. U. S., 15 Ct of {where, also, the word "always" CI. 453. was held to mean "in all cases). ( Maysville, etc., R. R. Co. v. Compare post, §§ 414-415. Herrick, 13 Bush. (Ky.) 122. 112 SUBJECT MATTER AND OBJECT. [§ 83 [Conversely, when an act declared a forfeiture of dower or curtesy " whenever a married man shall be deserted by his wife, or a married woman by her husband, for the space of one year," it was given oidy a prospective operation, applying to cases of desertion beginning after the statute took effect. 90 And where an aet, not ^oinjr into effect until a future day, declared certain results in all cases in which certain tilings " shall have been done," it was held applicable only to cases arising after the date when the act, was to become operative. 91 § S3. Commercial, etc., Terms. — [A statute applicable to a large trade or business should, if possible, be construed, not according to the strictest and nicest interpretation of the language, but according to a reasonable and business inter- pretation of it, with regard to the trade or business with which it is dealing. 92 ] In a Custom's Act, which imposes duties on imported commodities, the articles specified would generally be understood in their known commercial sense (a). [Such laws are intended for practical use and application by men engaged in commerce. 93 They " tax things by their common and usual denominations among the people, and not according to their denominations among naturalists, or botanists, or men in science." 04 Hence the designation of an article of commerce by merchants and importers, when it is clearly established, determines the construction of a tariff law in which that article is mentioned. 96 ] Thus, u J>oliea" tea was understood to mean, not the pure and unadulterated article to which the name strictly belongs, and which alone is known by it in China ; but all teas usually bought and sold at home as Bohea (h). [And under a statute imposing 90 Giles v. Giles, 22 Minn. 348. § 80. Deitz v. Beard, 2 W. (Pa.) 91 Dewart v. Purdy, 2!) Pa. St. 170.] 113. As to the class of cases of 93 Elliott v. Swartwout, 10 Pet, construction falling-, as these did, 137. under the presumption against 91 U. S. v. Breed, 1 Sumn. 159, retrospective operation, see this per Story, J., at p. 164. subject, post, §g 271 et seq. 95 Arthur v. Morrison, 96 U. S. 92 The Danelm, L. R. 9 P. D. 108. See also Curtis v. Martin, 3 171, per Brett, M. R. How. 106. (a) Atty-Gen. v. Bailey, 1 Ex. (b) Two hundred chests of tea, 9 281; Elliott v. Swartwout, 10 Wheat, 430; '-Gin," Webb r. Peters, 137. [Roosevelt v. Max- Knight, 2 Q. B. D. 530 ;" Spirits," well, 3 Blatchf. 391. Cornp. ante, Atty-Gen. v. Bailey, 1 Ex. 281 ; §§ 84, 85] SUBJECT MA ill i: AND <>l;.ii:< T. 1 1 a certain duty upon "silk veils," etc., and another upon li manufactures of silk,"' etc., not covered by former enumer- ations, it was held that "crape veils" were included in the latter, and not in the former, although admittedly manufac- tured entirely of silk. 08 [The rule, however, works both ways; and whilst it in- cludes what is commonly covered by the commercial sense of the term, it excludes what is not so covered. Thus it was held, that, in order to permit the entry od a certain article under a certain denomination, it must have been previously known by that name in commerce." 7 And the rule is subject to this limitation, that, if it appears that the Legislature intended something different from the usual meaning, as, e. g., where the word has been used in a different sense in a former tariff act, that intention must prevail. 98 ' § 84. Meaning Differing in Different Localities. — Where a Stat- ute applied to the United Kingdom, and the technical mean- ing of words differed in the different Kingdoms, the lan- guage would be taken in its popular sense (a). § 85. Meaning of words at Date of Enactment. — [The rule which requires the construction of statutes with reference to their objects and subject matters, obviously also requires] the language of a statute, as of every other writing, to be construed in the sense which it bore at the period when it was passed (/>). [An act of Parliament spoke of " bread usually sold as French or fancy bread," and it was at first held by two out of three judges that this phrase was not eon- lined to bread usually sold under that denomination at the time when the act was passed." But subsequently the con- trary view of the dissenting judge was approved. 100 [where it was held that the word Pennsylvania, and not to include '"spirits" did not include sweet spirits manufactured in another spirits of nitre. And see, as to the state ami rectified in Pennsylvania. phrase "ad valorem," U. S. v. (a) Saltoun V. Advocate-General. Clement, Crahbe, 4!)0.] 3 Macq. 659. [But see as to usage 96 Arthur v. .Morrison, supra. in different localities, pus', ^ 362.] 97 U. S. v. Sarchet, Gilp. 273. ('<> See ex. ST. Si. Cross o. IIow- 98 Roosevelt v. Maxwell, 3 aid, li T. R. 338 ; and see further Blatchf. 31)1. And see Com'th v. inf. §8 3o7 seq. Giltinan, 04 Pa. St. 100, 104-5. »>R, v. Wood, L. R. 4 Q. B. where upon (hat ground " domestic 559. distilled spirits" were held to mean 10 ° ^Erated Bread Co. v. Gregg, spirits distilled in the state of L. R. 8 Q. B. 355. 114 SUBJECT M ATI KK AND OBJECT. [§ 85 Undoubtedly, all laws must be executed according to the sense and meaning they imported at the time of their pas- fiage. 101 Hencs, where an act gave a railroad company the right to build a railway from a certain borough then bounded by a certain line, and the borough was subsequently extended beyond that line, the Court said : " We are very clear that this alteration of the borough lines did not, in the least change the rights or obligations of the railroad com- pany. . . The amendment of one [law, i. e., that fixing the borough limits] is not to be taken as a supplement to the other.""'" Conversely, where a turnpike charter prohibited the erection of a toll-gate within the town of T., whilst it was left undecided whether it meant the then limits, or the limits as they might be extended, 103 it was held clear that an amendment to such charter giving the right to extend the turnpike to a certain street within the city limits, pro- vided no toll-gate be placed within the city limits, meant the limits as then existing. 104 The obligation imposed upon a canal company by its charter, as to bridging roads crossed, refers to roads in existence at the time of incorporation. 105 Where an act was passed to take effect on the first day of the succeeding May, which contained a reference to the Code of Practice ; and, after the passage of the act, and before the day when it was to take effect, a new code was adopted, itself to go in effect on the first day of May, — it was held that the act must be construed to refer to the Code in use at the time of its passage. 100 101 Com'th v. R. R. Co., 27 Pa. 105 Morris Canal, etc., Co. v. State, St. 339, 353 And see Mobile v. 24 N. J. L. 62. Eslava, 16 Pet. 23-4 ; and compare 106 Griswold v. Atl. Dock Co., Amer. Fur Co. v. U. 8., 2 Id. 358. 21 Barb. (N. Y.) 225. That, how- 103 Com'th v. It. R. Co., ubi ever, to some extent, a change in supra. See to similar effect Pont- the circumstances of the people, chartrain Co. v. Lafayette, 10 La. with reference to which an act was An. 741. passed, may affect its construction, 103 Compare, however, Collier v. ought probably to be conceded. Worth, L. It. 1 Ex. D. 464, where Thus, where, in 1833, the pro- ihe mention, in an act, ol the visions of the marriage laws of ■" town of Rochdale " was held not Pennsylvania, enacted in 1700 and confined to the town as it existed L729, came before the Supreme when the act was passed, but Court for construction, it was said including streets subsequently that many of their provisions, added. "though doubtless wholesome 104 Detroit v. Detroit, etc., Co., when they were enacted." were 12 Mich. 333. " ill adapted to the habits and §§86-87] SUBJECT MATTER AND OBJECT. 115 [Upon the principle 6tatcd seems to rest the rule, that an act adopting by reference the whole or a portion of another statute, means the law as existing at the time of the adop- tion, and does not adopt any subsequent addition thereto or modification thereof. 107 ] § 80. Restriction of General Words to Subject Matter. — But it is iu the interpretation of general words and phrases that the principle of strictly adapting the meaning to the partic- ular subject matter in reference to which the words are used, linds its most frequent application. However wide in the abstract, they are more or less elastic, and admit of restriction or expansion to suit the subject matter. 108 While expressing truly enough all that the legislature intended, they frequently express more, in their literal meaning and natu- ral force ; and it is necessary to give them the meaning which best suits the scope and object of the Statute, without extending to srround foreign to the intention. It is, there- fore, a canon of interpretation that all words, if they be general and not express and precise, are to be restricted to the fitness of the matter (a). They are to be construed as particular if the intention be particular (b) ; that is, they must be understood as used in reference to the subject mat- ter in the mind of the Legislature, and strictly limited to it. § 87. "Persons," and other General Words. — Thus, enact- ments, which related to "persons" would be variously understood, according to the circumstances under which customs of society as it now 10S Somerset v. Dighton, 12 Mass. exists," and they were accordingly 882; Whitney v. "Whitney, 14 Id. held directory only : Kodebaugh 88, 92 ; Holbrook v. ilolbrook. 1 v. Sanks, 2 Watts (Pa.) 9, 11, per Pick. (Mass.) 2 18 ; Maxwell v. Col- Gibson, C. J. lins, 8 Ind. 38. 101 See U. S. v. Paul, 6 Pet. 141 ; (a) Bac. Max. 10. [See also Kendall v. U. S., 12 Id. 524 ; Shrew Brewer v. Blougher, 14 Pet. 178 ; v. Jones, 2 McLean, 78; Re Free- Atkins v. Disintegrating Co., 18 man, 2 Curt, 491 ; Kuapp v. Wall. 272.1 Brooklyn, 97 N. Y. 520; lie Main (b) Stradling v. Morgan, Plowd. Btr. 98 Id. 457; Schlaudecker v. 204. [So that, if the purpose of Marshall, 72 Pa. St. 200 ; Darms- the act plainly be to affect only a taetter v. Moloney. 45 Mich. 621 ; particular class of persons, the State v. Davis, 22 La. An. 77; generality of the language will not Oleson v. R. R. Co.. 36 Wis. 3S3 ; Lave the effect of intituling a sin- and see further as to reference gle individual not belonging to statutes, post, SS 492-493. that class : U. S. v. Sanders, 22 Wall. 492.] 1 L6 SUBJECT MATTER AND OBJECT, [§sr they were used, as including or not including corporations (a). [In its legal significance, it is said, the word " person' 7 ' is :i generic term, and as such, prima facie, includes artificial as well as natural persons, 109 unless the language indicates that it is used in a more restricted sense. 110 Hence, under the crimes act of 1804, §2, prescribing a penalty for the destruction of a vessel insured, the phrase "any person," was held to include corporations. m So in a statute re- straining any person from doing certain acts, 112 as for ex- ample, the taking of usurious interest. 113 So, too, a corpora- tion has been held to he a " person" within the meaning of an act making liable in damages a person inflicting injuries resulting in death; 1 ' 4 of an act forbidding a municipality to agree, by ordinance, contract or otherwise, with any " person or persons" for the extension of gas works for supplying the corporation or its inhabitants with gas ;" B of the revenue laws of Kentucky ; 110 of the Wisconsin Mill Dam act ; m of an act providing that persons may be sued for a trespass in the county where it is committed ; 118 of sec. 832 of Gantt's Ark. Dig. providing, that, if any person shall convey any real estate . . and shall not at the time . . have the legal estate in such lands, but shall afterwards acquire the same, the legal or equitable estate afterwards acquired shall imme- (ti) R. v. Gardner, Cowp. 79 ; R. v. York, 6 A. & E. 419 ; R. v. Beverley Gas Co., Id. . 385, 388, per Lord Esher, M. R., thai "the momenl of time whi'h governs the question of set- tlement, is the lime when t lie proper persons have tomakeupthcir minds as to the removal, in other Avoids the moment of adjudication," cit. R. v. Guardians of Bridgnorth. 11 Q. B. D. 314. Hence, a " wife," under such an enactment, is " not a person who has been, or will be, a wife, but who is so at that mo- menl." and "a widow who has been a wife, but is not so at the moment of adjudication cannot be called a wife :" per Lord Esher, ubi supra.] 138 Exp. Christy, 3 How. 292. 133 Commercial B'k v. Buckner, 2 La. An. 1023. And see to similar effect : Chapman v. Forsyth, 2 LIoav. 202; Hayman v. Pond, 7 Mete. (Mass.)328 ; Austill v. Craw- ford, 7 Ala. 335. 134 Maxwell v. Evans, 90 Ind. 596. 8§ 91, 92] SUBJECT MATTER AXI> OBJECT. 1-1 § 91. 'Inhabitant," ''Resident," etc.— TllC Complex terms " inhabitant," [" resident, "J may be cited as having frequent- ly furnished illustrations of this adaptation of the meaning to what appears to suit most exactly the object of the Aet. In the abstract, the word would include every human being dwelling in the plaee spoken of. A right of way over a field to the parish church granted to the "inhabitants" of a parish would include every person in the parish (a). But where the object of an Act was to impose a pecuniary burden in respect of property in the locality, the expression was construed as comprising all holders of lands or houses in the locality, whether resident or not, and corporate bodies as well as individuals, but as excluding actual dwellers who had no rateable property in the place, such as servants ; it being " infinite and impossible " to tax every inhabitant being no householder, and who could not be distrained upon for non- payment, and therefore highly improbable that the Legisla- ture intended to tax them (b). § 92. On the other hand, where the object is to impose the performance of a personal service within the locality, the word "inhabitant" would probably be construed as not comprising either corporate bodies or non-resident proprie- tors. Thus, it was held that a person who occupied premises in one parish and carried on his business in person there, but resided in his dwelling-house in another, was not an ''inhabi- tant" of the former parish so as to be bound to serve as its constable (o). So, an Act which authorized the imposition of a rate on all who ''inhabited or occupied" any land or house, and the appointment of a number of " inhabitants" to collect the rates, was held to throw the latter duty only on actual dwellers in the locality (d). I>ut here the word "occupied" would suggest a meaning for "inhabitants" distinct from " occupiers." [So, where a personal right is given to the inhabitants of a locality, the meaning of the word may be still more narrowed. 135 Thus, under an act (a) R. v. Mashiter, A.& E. 165, East, 330 ; Williams v. Jones, Id. per Littledale, J. 387. (b) 2 Inst. 703. K. v. North Cur- (d) Donne v. Martyr, 8 B. & C. ry, 4 B. & C. 038, per Bayley J. 62. (c) R. v. Adlard, 4 B. & C. 772 ; n3 See post, § 97. and see R. v. Nicholson, 12 122 SUBJECT MATTER A.NH OBJECT. [§ 93 authorizing towns and cities to subscribe for railway stock, after submission of tbe question to, and approval by, the " inhabitants," the latter means legal voters. 136 And where an act required the consent of "residents" to the bounding of a town, it was held that the phrase did not include a canal corporation whose canal extended through the town. 137 On the other hand, the term "householder" was deemed to include an unmarried man who kept house and employed domestic servants, within the meaning of a law calling for petition by householders for the establishment of a road. 138 ] § 93. Again, another meaning would be given to the [term " inhabitant," or " resident"] where the object, was to deter- mine the settlement of" a pauper, or the qualification of an elector. In those cases, a person is an inhabitant or resident of the place in which he usually sleeps (a). What amounts to inhabitancy in this sense, it is impossible to define. Sleeping in a place once or twice does not constitute it; and, on the other hand, such residence generally in a place, in this sense, is quite compatible with much absence from it (I). [Simi- larly, under an act fixing a limitation of two years, within which alone certain misdemeanors mentioned in the act may be prosecuted, but providing, that, where any offender " shall not have been an inhabitant of the state, or usual resident therein during the respective times for which he shall be subject and liable to prosecution," he shall be so subject within a similar period of time during which he shall be an inhabitant of, or usually a resident within, the state, one, who, after having committed an offence affected by this statute, entered the military service of the United States, served outside of the state, returning occasionally on furlough, and finally after his discharge, returned to his family and 130 Walnut v. Wade, 103 U. S. Riley v. Read, 4 Ex. D. 100. 683. (6) Wescomb's ( !ase, L.R.. 4 Q.B. 181 People v. Shooumaker, 63 110; Taylor v. St. Mary Abbott, L. Barb. (N. Y.) 44. R. 5 C. P. 309; Bond v. St. 138 Earner v. Clatsop Co., G Oreg. George's, Id. 314; and see Wbitc- 228 borne v. Thomas, 7 M. & Gr. 1; (a) St. Mary v. Radcliffe, 1 Stra. Ford v. Pye, L. R. 9 C. P. 269; GO, per Parker, C. J.; R. v. Charles, Ford v. Hart, Id. 273; McDougal Burr. Sel. C. 706 ; It. v. Stratford, v Paterson, 11 C. B. 755, 2 L. M. 11 East, 176; R. v. Miklenball, 3 B. ' & P. 681; Dnnston v. Paterson, 5 & A. :;; I ; Beal v. Ford, 8 C.P.D. C. B. N. S. 267. 73; Ford v. Drew, 5 C. P. D. 59; §94] SUBJECT MATTER AND OB J I 123 residence in the state, was held not to have lost his character as " an inhabitant of the state or usual resident therein," and consequently a prosecution after his return and more than two years subsequent to the commission of the offence was barred by the statute. 130 ] But if an Act requires residence for a certain time at least, as a qualification, it would he under- stood to make actual bodily presence in the place for that time indispensiblc ; as was held in the construction of the Act which constituted the congregation of the University of Oxford, of residents; and required that those residents should have resided at least twenty weeks in a year (a). §94. The same expression has received another meaning where the object of the Act was to preserve information as to the place where a person was to be found at times when it was most likely that he should be sought ; as in the enact- ment which requires an attorney to indorse his " place of abode" on the summons which he issues ; or a witnesss to a bill of sale, to add to his signature a description of his occu- pation and " residence." In these cases it has been held, considering the object which the Legislature had in view, that the place of businesss was the abode or residence in- tended (l>). But in general the place of business would not be regarded as the place of abode (c). Under the provisions of the County Courts Act, which gives the Superior Courts concurrent jurisdiction when the parties dwell more than twenty miles apart, the principal office of a railway company is its dwelling (//); but not its 139 Graham v. Com'th, 51 Pa. & R. 561 ; Blackwell v. England, St. 255. ^7 L. J. Q. B. 124, 8 E. & U. 541; (a) R. v. Oxford (V. C), L. P. 7 A.ttenborough v. Thompson, 27 L, Q. V> 471. [Ordinarily the term in- J. Ex. 23, 2 H. & N. 559 ; A.blett habitant, resident, imports a perma- v. Basham, 25 L.J. Q. 15. 239, 5 E. nent abode, and does not apply to & P>. 1019; Hewer v. Cox, ;J0 L. J. a mere temporary sojourning : lb. ; Q. B. 73; Larchin v. N. W Bank, Recderv. Ilolcomb, 105 Mass. 93 ; L.R. l«» Ex. 64, per Blackburn, J. Way v. Way, 64 111. 407. And si e See Thorpe v. Browne, L. R. 2 II. Fry's Election Case, 7 1 Pa. Si. 302, L. 220. as to construction of constitutional 3ee R. v. Hammond, 17 Q.B. provision requiring residence for a 772; 21 L. J. Q. r>. 153. certain length of tunc in the state (d) Adams V. Gt. Western It. Co. and election district as a prere- Gll.ec N. 404 ; Taylor v. Crow- quisite to the right of voting, to land Gas Co., 11 Ex. 1; Minor v. the exclusion of students al a col- N. W. Et. Co., 1 C.B. N.S. 325, 20 lese. Sec also post, 6 519.] L. J. C. P. 39. >) Roberts v. Williams, % C. M. L24 SUBJECT MATTER AND OBJECT. [§ 95 offices or stations (a). But the manufactory or shop, where the business is substantially carried on, and not its registered office, is the dwelling, within the meaning of the same pro- vision of a manufacturing company (b). For fiscal purposes, a corporation is regarded as residing where the governing body carries on the supreme management, though the scene of its operations and sources of profit, and even the majority of the shareholders, are out of the country, and though it has a foreign domicil and is registered abroad (c). A foreign corporation which had any establishment in this country would for the same purpose be considered as resident here, as regards the question of jurisdiction (d). [The State, as a political body, cannot be said to reside anywhere, and therefore is not included under an act allow- ing deductions from the valuation of taxable property of debts due, "creditors residing within this state ;" so that no deduction could be made from the valuation of an indi- vidual's real estate by reason of a mortgage upon it, given to trustees for the support of public schools. 140 ] § 95. « Occupier," etc.— In the same way, the word " occu- pier " has received different meanings, varying with the object of the enactment. Ordinarily, the tenant of premises is the " occupier" of them, although he may be personally absent from them (e), while a servant or an officer who is in actual occupation of premises, virtute officii, would not be an "occupier" (/). J>nt in the Bill of Sales x\ct of 1854, which provides that personal chattels shall be deemed in the possession of the grantor of a bill of sale so long as they are (a) Skids v. G. N. R. Co., 30 L. Congr. 3 June, 18G4) is said to be J.Q.B. 331; Drown v. London and an indefinite term, to lie construed N. W. R. Co., 4 B. & S. 3:20; 32 L with reference to the connection in J." 318. which it is used, the subject matter ' \b) Kevnshain v. Baker, 2 II. & and the object in view : Clapp v. C. 729. 33 L. .1. Ex. 41; see also Burlington, 42 Vt. 57!).] Aberystwith Pier Co. v. Cooper, 14 ° Slate v. Trenton, 40 N. J. L. 35 L. . J. (I B. 44. 89. (c) Newby v. Colt's Arms Co., (e) R. v. Poynder, 1 B. & C. 178. L R 7 Q.B. 293 ; Carron Iron Co. See Morrow v. Brady, 12 R. J. \-'>0. v. Maclaren, 5 II. L. 459. See Atly.- (/) Clarke v. Bury St. Edmunds, Gen. v. Alexander, L. R. 10 Ex. 1 C. B. N. S. 23, 20 L. J. 12 ; Bent 20. v. Roberts, 3 Ex. D. G6, 47 L. J. (d) Cesena Sulphur Co. v. Nichol- 112 ; R. v. Spurrell, L. R. 1 Q. B. son, 1 Ex. I). 428. [So the place 72, 35 L. J. 74. where a bank is located (§ 41, Act §95] SUBJECT MATTER AND 0BJ1 < I. L25 on the premises " occupied " by him, actual personal occu- pation, and not merely tenancy is intended ; and therefore the owner of chattels in rooms which he does not personally occupy is not in the apparent possession of them, within that Act (a). [So, under an act providing for taxation of residents, etc., one who has piled sawed lumber upon a wharf, to season, and pays wharfage therefore is not an occu- pier. 141 Nor under a homestead exemption act can that word apply to a public street, or alley, the fee of which is in debtor. 143 But, under an act giving a district court of the United States jurisdiction over offenses committed in a part of the Indian Territory " not set apart and occupied " by certain Indian tribes it was held that actual occupancy of the land by the tribes was not necessary to exclude juris- diction, the word " occupy" being construed to mean sub- ject to the will or control of the tribes. 143 Under a statute exempting from taxation property occupied by a charitable corporation, it. was held that a ease in which the property in question had been lately acquired by such a cor- poration, and the purchase had been promptly followed by diligent present preparations to build and occupy for the purposes thereof, was included. 144 But one who let a shed contiguous to a passage-way between it and his store, and received rent for the same, knowing it to be used for gaming, could not be punished as for " any house, building, yard, garden or other appendages thereof by him actually occvpied for gaming.' ,14& ] (a) 17 & 18 Vict. c. 36 ; Robinson ton. 113 Mass. 518. Compare ■v. Briggs, L. R. 6 Ex. 1. As to Mullen v. Erie Co., !<5 Pa. St. 288. the word " traveller," sec Taylor v. where a contrary construction was Humphreys, IT C. B. 539, 10 C. B. put upon a statute exempting from N. S. 429; Fisher v. Howard, 34 taxation "all churches, ... or L. J. M. C. 42; Atkiiisnn v. Sel- other regular places of stated wor- lers, 5 C. B. N. S. 442 ; Saunders ship." construed together with a v. S. E. R. Co., 5 Q. B. D. 456. constitutional prohihition against "Lodger," and "occupier," Brad- exemptions except as to "actual ley v. Baylis, 8 Q. B. D. 195 ; places of religious worship," etc. Morton v. Palmer, Id. 7. So, a provision or exception relat- 141 Stockwell v. Brewer, 59 Me. ing to vessels "engaged in naviga- 287. Comp. post. § 103, Dawson tion" of a particular kind, cannot v. R. R. Co., 8 Ex. 8. embrace a vessel lying at a wharf. »"- Weisbrod v. Daenicke, 36 in process of construction, unfin- Wis. 73. ished and hence as yet unfit for navi- 143 U. S. v. Rogers, 23 Fed. Rep. gation': The Vermont. 6 Ben. 115. 658. 145 Com'th v. Dean, 1 Pick. 144 New Engl. Hospital v. Bos- (Mass.) 387. 12G SUBJECT MATTEB AND OBJECT. [§ 96 § 96. ''Owner." — So, the \vov>\ "'owner " may lnean occu- pier; as in the Towns Police Act, 1847, which requires the owners of the lands and buildings where a fire happens to pay the expense of Bending fire engines to put it out (a). [Cinder statutes providing for compensation to the "owner " of lands taken for highways, railways, or the like, the term applies to any one having a legal interest, in the same, 149 whether his estate he an estate in fee or less than a fee." 7 A tenant is an '"owner or party interested" within such an act. 148 A trustee under a deed of trust is an " owner," so as to be a necessary party to a suit for the enforcement of a lien for taxes. 110 But a tenant for life of property fronting on a street has been held not to be an owner within a statute authorizing the paving, etc., of a street when a majority of the " owners " of property on the same shall apply for it. 160 A qualified interest in real estate coupled with possesssion has been held to make a man the owner of real estate within the statutory requirement making ownership of real estate a qualification for service as a juror ; 151 and as used in the Minnesota homestead law, the term includes equitable as well as legal ownership. 162 So, the pledgee of stock, transferred to him as collateral and standing in his name, is affected with personal liability in respect of the same as the owner of it within the meaning of a statute making stockholders personally liable to the creditors of the corporation in an amount equal to the stock owned by them. 163 Again, a («) 10 & 11 Vict. c. 89 ; Lewis v. of way, inchoate right of dower Arnold, L. It. 10 Q. B. 245. See or curtesy, or charges or liens on Exp. Saffron Hill, 24 L. J. M. C. the legal estate, by judgment or f>6 ; School Board v. Islington, 1 mortgage. See post, § 103 ; New Q. B. D. 65; Ancketill v. Baylis, Yorkv. Lord, 17Wend. (N. Y.)285. 52 L. J. Q. B. 104. ,49 Gitclicll v. Kreidler, 84 Mo. 116 State v. R. R. Co., 36 K J. 472; though the omission to join L. 181 ; and see Smith v. Ferris, him will not render the tax sale 13 N. Y. Supr. Ct. 553. wholly void, but merely leave his 147 Schoff v. Improvement Co., interest unaffected : lb 57 N. H. 110. 15 ° Baltimore v. Boyd, 64 Md. 10. 148 Pa. R. R. Co. v. Eby, 107 Pa. 151 Territory v. Young, 2 New St. 166; North Pa. R. It. Co. v. Mex. 93. Davis, 26 Id. 238. See, however, 15i Wilder v. Ilaughey, 21 Minn. State v. R. It. Co., supra, as to the 101 ; Hartman v. Munch, Id. 107. meaning of the phrase "persons 168 Ault man's App., 98 Pa. St. interested," including not only 505 ; the term " subscribed," used persons having an actual legal in the statute, being construed estate, but also those having some "owned," in conformity with a independent right not amounting constitutional provision in pari to such an estate, as, e. g., a right materia : see post, § 181. § 96] SUBJECT MATTEK AND OBJECT. 127 statute imposing upon the " owners " of factories tbe duty of erecting fire-escapes, it is held that by. the term " owner" is to be understood he who is in the actual possession and occupancy of the premises, who places the operatives in a position of danger and enjoys the benefit of their services; and if a tenant is in such possession under a lease from the owner of the building, the tenant and not the landlord, is liable under the act, 154 even though the latter occupies another portion of the building. 1 " So, the same term, in a statute making the owner of a vehicle driven against another, through failure to turn to the right, liable in treble damages, means the person in mediate or immediate control of the vehicle, though he be not the actual owner; 106 and in an act giving a right of action against the owner of any locomotive or car for an injury sustained by reason of a defect in the same, the word "owner" is not confined to the person who has the absolute right of property, but means the person who is the owner at the time of the injury and for the purpose of operating the railroad on which they are used, thus mak- ing a railroad company hiring cars from a builder and run- ning them on its road, liable to such action. 1 " But a tax upon all property " owned " by a railway company would .not include Pullman cars leased to it. 168 And in the aban- doned and captured property act of Congress giving the " owner " of property sold by the government the right to recover the proceeds of the sale, that term obviously cannot include a factor, who, being entrusted with the property for the purpose of selling it, had made advances upon it, •which would give him a lien upon it, with the right of possession, — a special property, — but could not make him the owner within the purposes of the act. 169 jNTor is a husband, occupying the statutory separate property of the wife as a homestead, its owner within the meaning of the Ohio statute exempting property from execution. 160 ] 151 Scliott v. Harvey, 105 Pa. St. v. Cattarns, 34 L. J. C P. 46. 222 (cit. Lee v. Kirby, 10 Col. & 158 State v. St. Louis Co. Ct., 13 Cine. \\ .Law Bull. 449) ; Keely v. Mo. App. 53. O'Connor, 106 Pa. St. 321. 169 U. S. v. Villalonga, 23 Wall. 168 Heelyv. O'Connor, supra. 35,42. See infra, note 204, Stone v. 156 Camp v. Movers, 44 Conn. 291. New York, 25 Wend. (N. Y.) 177. >" Proctor v. R R. Co., 64 Mo. 160 Davis v. Dodds, 20 Obio St. 112. See also, post, § lOU. Doggett 473. 128 SUBJECT MATTER AND OBJECT. [§ 97 § 97. Additional illustrations. — This restriction of meaning may be carried still further to promote the real intention, and not exceed the object and scope of the enactment. Thus, an Act, which, reciting the inconveniences arising from churchwardens and overseers making clandestine rates, enacted that those officers should permit " every inhabitant " of the paiish to inspect the rates, under a penalty for refusal, was held not to apply to a refusal to one of the churchwardens, who was also an inhabitant. As the object of the Act was limited to the protection of those inhabit- ants only who had previously no access to the rates (which the churchwardens had), the meaning- of the term " inhabi- tants" was limited to them (a). In another case, the majority of the Judges of the Queen's Bench went further than the Chief Justice thought legitimate, in giving an unusual and even artificial meaning to a word, for the purpose of keeping within the apparent scope of the Act. The treaty between Great Britain and the United States of 1842 and the 6 & 7 Vict. c. 76, passed to give the Executive the necessary powers for carrying its provisions into effect, having provided that each State should, on the requisition of the other, deliver up to justice all persons, who, being charged with murder, " piracy," or other crimes therein mentioned, committed within the juris- diction of either State, should seek an asylum or be found within the territories of the other; it was held that the word "piracy" was confined to those acts which are declared piracy by the municipal law of either country, such as slave-trading, and did not include those which are piracy in the ordinary and primary sense of the word, that is, jure gentium : for as the latter offence was within the jurisdiction of all States, and was triable by all, and the offenders could not, consequently, be said to seek an asylum in any State, since none could be a place of safety for them, that species of the crime was not within the mischief intended to be remedied by the treaty or the Act. (b). (a) Wethcred v. Calcutt, 5 Scott (b) Re Ternan, or Tivnan, 33 L. N. R. 4ii'.i ; see also R. v. Master- J. M. C. 201, 5 B. & S. 645. See ton, 6 A. A- E. 15:5. [See also, ante, also Kwok Ah Sing v. At y.-Genl. 6 92; Walnut v. Wade. 103 U. S. 5 P. C. 179. 683. ] § 9SJ SUBJECT MATTER AND OBJECT. 129 [Again, under an act forbidding the selling of wine, etc., without a license, except by a wine grower selling " on his own premises," it was held that the latter must be the place of production or manufacture. 101 § 98. [As further illustrations of construction conforming with the rule in question, the following instances are worthy of notice. A statutory exemption of shipowners from liability for loss by fire, but excluding from the bene- fit of the act the owners of vessels engaged in inland navi- gation, was held, nevertheless, to extend to vessels navigat- ing the great lakes, such navigation not being inland within the meaning of the exception. 163 An act authorizing the issuing of bonds by a county in aid of the building of a railroad and other works of internal improvement, was held not to authorize the issuing of bonds for the building of a courthouse, it appearing, from the fact that another statute had authorized the borrowing of money for county buildings, that this particular object could not be within the intention of the general language of the later act. 163 A statute requir- ing certain contracts to be in writing, and the consideration to be expressed therein, applied to executory contracts only, and not to instruments which, of themselves, by words of grant, assignment, surrender or declaration of trust, are effectual to pass the estate, title or interest. 164 An act allow- ing the issuing of warrants of attachment in any action aris- ing on contract, for the recovery of money only, was, by reference to other provisions upon that head, showing that its subject matter was only claims of liquidated and ascer- tainable amounts, held inapplicable to suits upon breach of promise of marriage. 165 In an act, whose manifest object was to prohibit sheriffs and their deputies, in their official capacity, from becoming purchasers at their own sales and being induced to act corruptly in relation to them by their interests as purchasers, the generality of the language for- bidding any sheriff or any deputy sheriff to purchase any 161 State v. Wyl, 55 Mo. G7. 164 Cruger v. Cruger, 5 Barb. (N. 162 Moore v. Transp. Co., 24 Y.) 225. How. 1. 165 Barnes v. Buck, 1 Lans. (N. 163 Lewis v. Sherman Co. Com- Y.) 268. m'rs. 1 McCrary 377. 9 130 SUBJECT MATTER AND OBJECT. [§ 99 property at any execution sale, and declaring all purchases so made void, was so restricted as not t<> interfere with the right of a sheriff or deputy to bid upon and purchase prop- :rty sold by another on an execution issued upon a judg- ment held by the former, i. e., with the collection of his own demands. 1 * 8 Where a municipal ordinance forbade the sale of fresh meat, within certain limits, except by licensed per- ms, but contained a proviso in favor of fanners permitting them to sell meats, the produce of their farms, it was held that one whose business was that of a butcher was not within the proviso although the meat sold by him came from his farm, if the latter was only an appendage to his business as a butcher. 167 Conversely, one employed to buy a piece of real estate, that not being his regular business, does not thereby become a real-estate broker, within the meaning of a statute requiring such to be licensed. 168 § 99. [In the numerous statutes which give laborers cer- tain preferences over other creditors, liens or immunities, the word " laborers " has been variously construed. Under statutes giving preferences to laborers for their wages out of the proceeds of execution against, and sale of, the property of their employer, it has been held that as laborers should be regarded only those, who, with their own hands, perform the contract they make with the employer, and that one who performs a contract to deliver lumber, by hiring teams and drivers, is not a laborer within the mean- ing of the act. 109 Moreover, as the object of these acts is to secure to the manual laborer the fruit of his own toil, for the subsistence of himself and his family, the term " laborer " was held not to embrace a civil engineer; 170 the members of an engineer corps or an assistant general manager ; 171 the 166 Jackson v. Collins, 3 Cow. Overall v. Bezeau, 37 Mich. 506 ; (N. Y.)85. Comp. post, ? 070. Barton v. Morris, 10 Phila. (Pa.) 'Rochester v. Pettingev, 17 360 ; State v. Yearby. 82 N.C. 561. Wend. (N. Y.) 265 See also Eastman v. Chicago. 97 1 Chadwick v. Collins, 26 Pa. 111. 178. Bui Comp. Stale v. Pad- St. 138. Bo, "The word 'dealer' dock, 24 Vt. 312. alone, in a variety of statutes, in- ''' Weutworth's App., 82 Pa. St. eluding criminal ones, is held not 469. tu he satisfied by a single instance m Pa., etc., R.R. Co. v. Leuffer, of traffic :" Bish., Wr. L.,% 210, 84 Pa. St. L68. Carter v. State, 44 Ala. 29 ; '"■ State v. Rusk, 55 Wis. 465. §99 | SUBJECT MATTER AND OBJECT. 131 president of an insolvent manufacturing corporation, in respect of his salary ; m or an overseer. 173 So, under an act forbidding preferences in assignments for the benefit of creditors, except in favor of laborers, servants and employees, a manufacturer, who, under the contract with the assignor, sawed at his own establishment, by his machinery and hands, a certain quantity of lumber furnished by the assignor, was held not entitled to any preference made in his favor in the assignment. 114 Similarly, under statutes prohibiting the attachment of laborer's wages, the pay of a boss of a depart- ment, at a certain rate per month, he employing and dis- charging the hands, was held not protected ; 175 nor the money due under a contract to one who had contracted to excavate and grade a street at a certain rate per cubic yard, and used two carts and several horses in the prosecution of the work, with a number of men sufficient, with himself, to keep the carts and horses employed. 178 But it is otherwise as to the money earned by, e. {/., a miner, by his own labor, who employs a common laborer to assist him at so much per day ; 177 for a man who earns his livelihood by his own per- sonal manual labor is a laborer, although his superior skill and care may entitle him to a greater compensation than the common laborer, 178 and it is immaterial whether the wages agreed to be paid are measured by time, by the ton, or piece, or any other standard : 179 and the helpers or assistants of the chief workman, where the nature of the work requires 172 England v. Organ, etc., Co., elude these among the laboring 41 N. J. Eq. 470. classes." (p. 173.) 173 Whitaker v. Smith, 81 N. C. "« Campfleld v. Lang, 25 Fed. 340. But see Cullins v. Mining Rep. 128. Co., 2 Utah, 219, to the effect that " 5 Kyle v. Montgomery,' 73 Ga. it includes a superintendent or 337. foreman of a mine ; and Stryker v. 17ti Heebner v. Chave, 5 Pa. St. Cassidy, 70 N. Y. 50, that the word 115. But that a teamster is a " labor " in. the mechanics' lien law laborer, see Mann v. Burt, 35 Kan. of 1862, includes skilled labor, e. g., 10. of an architect, irrespectively of m Pa. Coal Co. v. Costello, 33 the grade of employment. Com- Pa. St. 241. pare'with this Pa., etc., R. K. Co. 11S Ibid. (The decision in Heeb- v. Leuffer, 84 Pa. St. 168, per Shars- ner v. Chave, supra, is doubted in wood, J. :" It is true, in one sense this case; but it is approvingly the engineer is a laborer ; but so is quoted in Pa., etc., R. R. Co. v. the lawyer and doctor, the banker Leuffer. supra.) Comp. Stryker v. and corporation officer, yet no stat- Cassidy, supra. istician has ever been known to in- 119 Seiders's App., 46 Pa. St. 57. L32 SUBJECT MATTER AND OBJECT. [§ 10O such, are as much within the protection of these statutes as are those of the principal workman, though the former be employed by the latter as the agents of the proprietor. 180 A "consulting engineer" was held not to be a "laborer" or " operative" within the meaning of an act charging stock- holders for the services of such rendered to the corpora- tion. 181 § 100. [An act prohibiting wagers or bets upon the result of elections was, with reference to its object, construed to refer only to elections to pnblic offices, not to primary, or corporate elections. 183 An act relative to costs in partition proceedings provided " that the costs in all cases of parti- tion . . with a reasonable allowance to the plaintiffs or petitioners for counsel fees, to be taxed by the court or under its direction, shall be paid by all the parties in pro- portion to their several interests." It was held that the object of this provision was to equalize the burden of mak- ing partition ; that, therefore, it authorized the court to fix a reasonable allowance for plaintiff's counsel fee, graduated according to the nature and extent of the services necessa- rily rendered for the common benefit of all ; but not for services in an adversary proceeding, resulting from a defense to plaintiff's demand for a partition, or from any other cause. 183 An act provided that " the widow or the children of any decedent . . may retain property to the value of i8o iijitl. knowlingly gives more than one 181 Ericsson v. Brown, 38 Barb, ballol al one time," etc., was held iN. Y.) 390. inapplicable to a municipal elec- 182 Com'th v. Wells, 17 "W. K tion upon a question of granting C. (Pa.) 164 ; whilst, from the same license for the sale of liquors. The consideration, a constitutional decision is based upon the " obvi- provision disqualifying from hold- ous purpose" of the original enact- ing any office of trust or profit, ment and subsequent re-enactment and depriving, for the period of of the statute, and upon a rcfer- f our years, of the right of suffrage, ence to the acts concerning elec- any person "who shall, while a can tions in force at the time of the dilate for office, willfully violate enactment of the statute, there be- any election law, was' held to ing none for such elections (See extend to laws regulating primary, ante. § 85), and to oilier acts in or delegate elections : Leonard v. pari materia showing that the Com'th, 112 Pa. St. 007. Post, § word " ballot " was not used con- 508. In Com'th v. Howe, 144 cerning such elections. Mass. 144, an act punishing lsa Fidelity, etc., Co's. App., 108 •' whoever ... at any national, Pa. St. 339. state, or municipal election .... § 101] SUBJECT MATTER AND OBJECT. L33 $300 . . for the use of the widow and family." The ohject of the act being ascertained to be merely a temporary pro- vision for the widow and those immediately dependent upon the deceased, it followed that the allowance could not be claimed bj 7 a widow who had deserted her husband; who was living in a foreign country, separated from and her husband and never part of his family in the state ; who had married again ; nor by children who were adults, not members of the decedent's immediate family, but who had left his home to provide for themselves; 184 nor by a widow who had been divorced from the decedent, a mensa et thoro. 185 And the main purpose being to provide for the widow, the act was held not to apply to the property of a wife and mother, in favor ot her children, as against her husband, 186 whilst it did apply to the property of a widow, in favor of her children, as against her creditors. 187 Again, the charter of a railway company gave it all the rights and privileges for the settling and obtaining the right of way, then enjoyed by certain other railway companies ajso incorporated by special acts. The latter referred to and designated the manner in which those corporations might acquire the right of way over private property. This, therefore, being the object and subject-matter of the provision, the generality of its language was restricted thereto, and not permitted to include or extend to the mode of settling differences between township authorities and the railroad company when the latter had taken possession of a public road. 188 A posthumous child of a brother of an intestate would not be a " posthumous relation " within the meaning of an intes- tate act unless born after the death of the intestate ; for the reference is to him. 189 § 101. [Where an act provided for the improvement of a road from the village of H. to that of M., a construction of its language with reference to the subject matterdemonstrated that the phrase " from " the village of II. was intended to in- i» 4 Nevin's App., 47 Pa. St. 230. 187 Hine's App., 94 Pa. St. 381 185 Hettrick v. Hettrick, 55 Pa. I88 Danville, etc., R. 11. Co. v St. 290. Oom'th, 73 Pa. St. 29, 36. ' 86 King's App., 84 Pa. St. 345 ; 189 Shriver v. State, 65 Md. 278. Waiter's App., 105 Id. 346. 134 BDBJECJ MATTER \M> OBJ] CT. [§ior elude a partof the same. 190 A statute whose main object was taxation, authorized the treasurer to collect sums to be paid by curators of vacant successions. It was held to be restricted to sums that should go into the treasury as a revenue, and not to include those which should be deposited there for absent heirs and which constituted no part of the rev- enue. 1 '"" The object of the New Hampshire statute permit- ting an allowance to be made by the probate judge to a widow, out of her deceased husband's estate, for her " pres- ent support " being that of a provision for her immediately after her husband's death, there was held to be no authority for making her the allowance after the lapse of several years, upon settlement of the estate. 193 Where the charter of a cemetery company provided that a certain number of acres of land should be forever appropriated and set apart as a cemetery, which, so long as used as such, should not be lia- ble to any tax or public imposition whatever, it was held, that, as the object was to exempt the property from all taxes and charges imposed for the purpose of revenue, but not to relieve it from impositions inseparably incident to the location in regard to other property, a paving tax, for paving the street in front of the property in question was not embraced in the exemption, notwithstanding the general and sweeping language in which it was declared. 193 [On the general principle under discussion would seem also to rest the rule that an act adopting another by refer- ence does not adopt it beyond the purposes of the new act. 194 190 Smith v. Helmer, 7 Barb. (N. Y.) 416. " Succession of D'Aquin, 9 La. An. 400 ; I. cake v. Linton, (i Id. 262. "- Hubbard v. Wood, 15 N. II. 7 1. Four years Lad elapsed 193 Baltimore v. Grcenniount ( - m'y, 7 Md. 517. And see, to similar elTect : Re Mayor, etc., of New York, 11 Johns. (N. X.) 81; Bleecker v. Ballou, 3 Wend. (X. Y.)2(>:j ; People v. Brooklyn, 4 N. Y. (4 Comst.)429. Lnt. where the Charter of a cemetery company provided that the lands thereof should he " exempt from taxation, except Cor state purposes," and the city within whose boundaries they lay, and which had constructed a sewer on a street along the line of which part of the company's bury- ing lots lay. and had levied an assessment upon them to defray pari of the cost of such improve- ment, it was held that the assess- men1 was a species of local taxation and within the exemption clause of the charter : Olive Cem"y Co. v. Philadelphia, 93 Pa. St. 129. '"' Com'th v. Letts, 76 Pa. St. 465, 171 ; Graver v. Fehr, 89 Id. Kin. KM. In Jones v. Dexter, 8 Fla."270, it is said that a reference §§ 102, 103] SUBJECT MATTER. AND OBJECT. 135 ^ 102. Object may Supply Unexpressed Condition. — [A COnsid- eration of tlie object and subject matter of an act may also circumscribe the broad meaning of words by supplying that in the language of the statute which must have been the intention of the same but is not expressly stated. Thus, where a statute required insurance companies, before com- mencing business, to have a certain amount secured by mortgage "on unencumbered real estate," it was held that the land must be within the state. 195 So, under an act which entitled a defendant against whom judgment had been recov- ered to a stay of execution, if he " in ilic opinion of the court is possessed of a freehold, worth the amount of such judgment clear of all incumbrances," it was held that the freehold must be within the county where the judgment was entered. 196 The object, in each instance, was to create or furnish a security. In order to be effectual, the security, in the first case, must be within the state's jurisdiction, in the latter, within the reach of the judgment creditor and the efficacy of the judgment as a lien. 197 ] § 103. Beneficial Construction. — It is said to be the duty of the judge to make such construction of a statute as shall suppress the mischief and advance the remedy (a); and the widest operation is therefore to be given to the en- actment, so long as it does not go beyond its real object and scope. When, for instance, the language, in its usual mean- ing, falls short of the whole object of the legislature, a more extended meaning may be attributed to it, if fairly suscept- ible of it. The seope of the Act being ascertained, the words are to be construed as including every case clearly within that object, if they can do so by any reasonable con- in one act to another incorporates (Pa.) 432. in the former only the general 191 No distinction has been made powers and provisions of the latter, in the application of the rule dis- not the special ones?; sucb only as cussed in this chapter, as between will stand with reason and right: penal and other statutes. A glance and that the incorporated provis- at the decisions cited will show ions will be more liberally con- that the nde, thus far, applies to struedin the incorporating, than in both classes. the incorporated statute. Sec (a) Heydon's Case, 3 Rep. 7b. Quinn v. Fid. Ben. Ass'n, post, Per Lord Kenvon in Turtle v. § 108. Ilartwell. G T. R. 429 ; per Cock- 195 State v. King. 44 Mo. 283. burn, C. J., in Twycross v. Grant, 195 Com'th v. Meredith, 2 Binn. 2 C. P. D. 530. 1.36 bubject matter and object. [§ 103 .st ruction, although they point primarily to another or a more limited class of cases (a). Thus, Arts which gave a iv single woman " who had a bastard child the right to sue the putative lather for its maintenance have been held to include in that expression, not only a widow (//), hut a married woman liv- ing apart from her husband (a) ; for, the general object of the Act being to compel men to contribute to the support of their illegitimate offspring, even a married woman living under circumstances incompatible with marital access, though not in popular language a single woman, is nevertheless, for the purposes of the Act, and therefore in the contemplation of the legislature, as "single" as a woman who has no hus- band. [So, where the object and context of a statute require it, the phrase " single man " may he taken in a generic sense, as including an unmarried woman. 108 And under a statute punishing any person, who, in the night, should willfully disturb any " neighborhood or family," an indictment lies for disturbing a woman occupying a dwelling-house alone. 199 So, a surety was held included in the phrase "co-partners, or joint or several obligors, or promissors, or contractors," the death of one of whom was not to discharge his estate. 800 And an act giving to a married woman the power to convey, with the assent of her husband, any real or personal proper- ty which might come to her by "gift of any person except her husband," was held to confer the right to alienate land conveyed to her by a third person for a pecuniary considera- tion. 201 The word "grain," in a penal statute, was held to include millet, or sugar cane seed, 2 " and the phrase "inhab- ited dwelling house," in a statute against arson, to embrace a (a) Per Cleasby. B.. iu Scolt v. water basin which was a necessary Lc. B. G81 ; R. v. Luffe, 8 East, Somerville, 80 Pa. St. 59. 193. < .mp. Stacey v. Lintell, 4 1M N oe v. People, 39 111. 96. t^. II. D. 2IU. 20 ° Bowman v. Kistler, 33 Pa. 19 ^ Silver v. Ladd, 7 Wall. 217. St. 100. Where a pari of an entire tract of ' m Chapman v. Miller, 128 Mass. 'and upon which plaintiff's mill 209. was built, including the pond or 8M Holland v. State, 34 Ga. 456. § )03] SUBJECT MATTER AND OBJECT. 137 jail. 203 ] The authority given by the Municipal Corporations Act to expend the local funds upon " corporate buildings" was construed as extending to the cost of lining the corpor- ation pew in the church (a). [So, under a statute authorizing the destruction of a building, by order of the mayor of a city, to prevent the spreading of a conflagration, and a recovery against the municipality in favor of the owner and all persons having any estate or interest therein, it was held that injury to personal property in the building could be recovered by the tenant occupying the same, in addition to the recovery by the owner of the building itself for the damage done to it. 204 ] An Act which required a rail- way company to make, for the accommodation of the •owners and occupiers of the adjacent lands, sufficient fences for protecting the lands from trespass, and. the cattle of the owners and occupiers from straying thereout, was held to include in the term "occupier " a person who merely had put his cattle on laud with the license of the occupier (a). And the same word, even when coupled with "owner," has been construed, with the view of promoting the object of the enactment and reaching the mischief aimed at, as includ- ing a person standing on a spot in a park or place, where he had no more right to stand than any other person (b). So, it was held that a fishing-boat of ten tons provided with masts, which unshipped, and sails. used for going to sea, but which was propelled by four oars in harbor and shallow water, 203 p e0 pie v. Cotteral, 18 Johns, not to be the grant of a right of (N. Y.) 115 ; Com'th v. Posey, 4 eminent domain, and therefore Call (Va.) 109. not within the constitutional pro- («) 5 & 6 W. 4, c. 76 : It. v. vision requiring compensation for Warwick, 8 Q. B. 92(5. t he taking of private property; but 204 New York v. Lord, 17 Wend, the provision of the statute was (N. Y.) 285 ; 18 Id. 126. But this only i lie regulation of a right which doctrine was not extended so as to even individuals possess, in cases permit the lessee to recover the of inevitable necessity, of destroy- value of merchandize destroyed ing property to prevent an impena- which did not belong to him, but ing calamity. See Klopp v. Live was the property of others, in his Stock Ins. Co., 1 Woodw. (Pa.) possession as factor, or merely on 445. storage: Stone v. New York, 25 (a) Dawson v. Midland R. Co., 8 Wend. (N. Y.) 177. See ante. 8 96, Ex. 8 ; and see Kittow v. Liskeard, TJ. S. v. Villalonga, 2:5 Wall. 35. L. R. 10 Q. B. 7. [See ante, § 95.] The authority conferred upon the (b) See Doggelt v. (.'attains, 34 mayor to order the destruction of L. J. C. P. 46; Bows v. Feuwiek, a building iu such eases was held L. R. 9 C. P. 339. [See ante, § 96.] 138 SUBJEI I MATTER AND OBJECT'. .' 104, 105 was "a ship" within the Merchant Shipping Act of 1862, which provides that when a collision between two"ships" takes place, the master of eaeli ship is bound to render assistance to the other, on pain of the cancellation or suspen- sion of his certificate. Though the Merchant Shipping Act? 1854, s. 2, enacted that the term "ship" should "have the meaning" thereby "assigned" to it, viz., that it should " include every description of vessel used in navigation not propelled by oars," this was considered not to be a definition, and as not excluding vessels which it did not include (a). [Similarly, the term "vessel" has been applied to a floating elevator, unlicensed, unenrolled, with no motive power or capacity for other cargo than the elevator; 206 and under a statute giving a lien to the builder of a vessel, it was held to include a canal boat. 308 In a statute allowing recovery of damages for injuries to a man's team, cattle or horses driven in droves along the highway, are held included; 207 and a " yoke " of oxen, in an exemption statute, is not necessarily confined to cattle broke to work, if they are intended by their owner for use as work cattle and are old enough to be so used. 208 Under a similar statute, a " buggy " is a " wagon." 209 ] § 104. "Done " including "Omitted." — The statutes which require notice of action for anything "done" under them are construed as including an omission of an act which ought to be done as well as the commission of a wrongful one (/;). § 105. Qui facit per Alium, etc.— A statute which requires (a) In re Fergusson. L. R 6 Q. Townsend Sav. B'k v. Epping, 3 B. 280. Comp. The Mac, 7 P. D. Woods. 390.] 38. See 36 & 37 Vict. c. 85, s. 16. 205 The Hezekiah, 8 Ben. 556. [A statute el' Georgia, of 1843, gave 206 King v. Greenway, 71 I s !. Y. a lien to those furnishing logs to 413. steam saw mills. The act of 1857 Elliott v. Lisbon, 57 K H. repealed this act as to all saw-mills 27. upon the several mouths of the 208 Mallery v. Berry, 16 Kan Altamaha, and declared that the 294. " mouiths of the Altamaha " should 209 Allen v. Coates, 20 Minn. 46; include all mills within 10 miles of and so is a hearse: Spikes v. Bur- Darien, in a straight line. It was v,ess, li."> Wis. 428. held that a mill, not strictly on one ~ (6) Wilson v. Halifax, L. R. 3 of -aid mouths, but, vvithin'lO miles Ex. Ill ; Poulsum r. Thirst. L. R. of I), by a straight line, was within 2 C. I'. 4 19 ; sec also Davis v. Curl- the terms of the act of lsr,7 : ing, 8 Q. B. 286 ; Nevf ton v. Ellis, 5 E. & B. 115. § 105] SUBJECT MATTER AND OBJECT. 130 something to be done by a person would be complied with, in general, if the thing were done by another for him and by his authority ; for it would be presumed that there was no intention to prevent the application of the general princi- ple of law that qui facit per alium facit per so ; unless there was something cither in the language or in the object of the statute which showed that a personal act was intended. On this ground, an Act of Parliament which requires that notice of appeal shall be given by churchwardens is complied with if given by their attorney (a) ; [and a statutory requirement of an oath to be administered " by the court or judge " is satisfied by an oath administered by the clerk of the court, in open court, under the direction of the court, and tested by the clerk. 210 ] So, the Dramatic Copyright Act, 3 & 4 Will. 4, c. 15, which requires the written consent of the author of a drama, to its representation, would be sufficiently complied with if the consent were given by the author's agent (h). When an Irish Statute, after giving to tenants for lives, or for more than fourteen years, the right of felling any trees which they had planted, required that " the tenant so planting" them should file an affidavit within twelve months, in a form given by the Act, which purported throughout to be made by the tenant personally, the House of Lords construed the Act as satisfied by the affidavit of the tenant's agent. A stricter construction, it was said, (a) R. v. Middlesex, 1 L. M. & P. G21 ; R. v. Carew, 20 L. J. M. C. 44n.; R. v. Kent, 8 Q. B. 315. See other instances in Walsh v. South worth, 20 L. J. M. C. 165, 2 L. M. & P. 91 ; R. v. Huntingdon- shire, 1 L. M. & P. 78 ; Charles v Black well, 1 C P. D. 548 ; Re Lancaster, 3 CI). D. 498 ; Nicholson v. Hood. 9 M. & W. 365 ; Brooker v. Wood, 5 B. & Ad. 1052 ; Jory v. Orchard, 2 B. & P. 39; Philps v. Wincheomb, 3 Bulstr. 77. Comp. Hider v. Douell, 1 Taunt. 383. [See ante, § 74, Rulhbun v. Acker, 18 Barb. (N. Y.) 393, that a requirement of notice to a person, in a statute, prima facie means personal notice to him.] 210 Oaks v. Rogers, 48 Cal. 197. Somewhat analogous to the prin- ciple here discussed is that involved in the decision in Borlin v. High- berger, 104 Pa. St. 143, that an act authorizing the recorder of deeds to certify the recognizances of the sheriff, taken by him, to the pro- thonotary, in order to create a lien on the lands of the sureties, etc., was complied with by a transmis- sion of a cert i fici 1 copy of such recog- nizance. Seeante£19. But under an act requiring an affidavit of loss to be served on a railway company in order to render it liable for stock killed on its track, service of the original affidavit is essential, and that of a copy thereof insufficient : Cole v. R. R. Co., 38 Iowa 311. (b) Morton v. Copeland, 16 C B. 517, 24 L. J. 169. 140 SUBJECT MATTER AND OBJECT. [§ 105 -would have rendered the Act inapplicable to most of the es which it bad in view (a). [So, under various statutes requiring, in certain actions, that the defendant, within a specified time, should file an amdavil of defense, and author- izing the entry of judgtnenl for plaintiff in default thereof, it has been held, that, in order to prevent frequenl failures ,,{' justice, an affidavit of defense may, in eases of disability or absence of defendant, he made by another person, conu- sant of the facts, and acting for the defendant, and always by a party in interest though not of record. 311 ] The principle is well illustrated by two decisions under the G & 7 Vict. c. 18, which required that the person who objected to a voter should sign a notice of his objection, and deliver it to the postmaster. This was held to require personal signature, but not personal delivery or receipt. It was material that the person objected to should be able to ascertain that he really was objected to by the objector, which he could not so easily do if a signature by an agent was admitted ; just as. to guard against personation, the sig- nature of a voting paper under the former Municipal Corpor- ations Ad must be personal and not by agent (/>). But there was no valid reason for supposing that the legislature did not intend to give effect to the rule qui facit per alium facit per so, in the case of the mere delivery (c). The knowl- edge of the servant, maybe constructively that of the master within the meaning of an Act, even when making the master penally responsible (<:/). An Act (18 & 19 Vict. c. 121) which authorizes justices to summon a person by whose act a nuisance arises, or, if that person cannot be ascertained the occupier of the premises in which it exists, was held to authorize the summoning of the occupier, if the person who (a) Mountcashel v. O'Neil, 5 II. (b) 5 & 6 Wm, 4, c. 76, s. 32 ; R. L. 937. v. Tart, 1 E. & E. 618, 28 L. J. •-'" See Sleeper v. Dougherty, 2 173; and see Monks v. Jackson, 1 Wliart. (Pa.) 177; West v. Sim- ('. I'. D. 683. mons, Id. 261 ; Hunter v. Reilly, (c) Cuming v. Toms, 7 M. & Gr. 86 Pa. St. 509; Frailey v. Stein- 29 and 88. metz, 22 Id. 437; Marshall v. (d) Core v. James, L. J. 7 Q. B. Win,, l Phila. 177. And see to 135, per Lush, J. ; R. v. Stephens, similar effect. Bingham v. Athna, *L. R. 1 Q. B. 702 (111.) 2 Mon. Jur. 125. §§ 106, 107] SUBJECT MATTER AND OBJECT. 141 had actually done the act was his servant, since in law the act of the latter is that of the former {a). § 106. On the other hand, Lord Tentenden's Act, 9 Geo. 4, which requires an acknowledgment " signed by the party chargeable thereby," to take a debt out of the Statute of Limitations, has been held to require personal signature, and not to admit of a signature by an agent (b). But this con- struction was based partly on the circumstance that another Statute of Limitations made express mention of an agent (c). Where an Act required that notices should be signed by certain public trustees, or by their clerk, it was held that the signature of the clerk of their clerk, who had a general authority from his employer to sign all documents issuing from his office, was not a compliance with the Act (d). [An act requiring the oath of the principal is not in general com- plied with by an oath of his agent. 212 So, e. g., under an act authorizing the issuing of a distress warrant for rent, upon the oath of the person to whom the rent is due. 218 ] Again, where the statute required that the act should be done by the party "himself," it would hardly admit of its being done by an agent, as in the case of the provision that the nomination paper of a candidate for municipal office should be delivered to the town clerk by the candidate him- self, or his proposer or seconder (e). §107. Liberal Construction of Remedial Acts. — [Although] even Criminal Statutes, which are subject to the strictest construction, are found to furnish abundant illustrations of giving an extended meaning to a word (/), [the method of interpretation under discussion is particularly and most libel-ally applied to so-called remedial statutes, — statutes (a) Barnes v. Ackroyd, L. R. 7 as to acknowledgment by wife and Q. B. 474. husband respectively, of theother's (b) Hyde v. Johnson, 2 Bing. N. debt.] C. 778. See also Swift v. Jews- (d) Miles v. Bough, 3 Q. B. 845. bury, L. R. 9 Q. B. 301 ; Williams ' 21 ' 2 See People v. Fleming, 2 N. v. Mason, 28 L. Times, 232 ; Bar- Y. (2 Comst.) 484 ; Philadelphia v. wick v. London S. Bank, L. R. 2 Devine, 1 W. N. C. (Pa.) 358. Ex. 259. 213 Howard v. Dill, 7 Ga. 52. (c) See ante, § 52. [Compare, (c) Monks /• Jackson, 1 C. P. D. upon this subject, 3 Pars., Contr. G83. The Munic. Corp. Act, 1882, pp. 79, et seq. But see : Powers omits ''himself;" see 3rd Sched- v. Southgate, 15 Vt. 471, and ule, part 2, s. 7. Orcutt v.^Benett, 12 La. An. 178, (/) See infra, §§ 329, 330. 142 61 BJECT MATTER AM) OBJECT. [§ 10S " made from time to time to supply defects in the existing law, whether arising from the inevitable imperfection of human legislation, from change of circumstances, from mis- take, or any other cause." 9 " Of such statutes, as distinguished from penal statutes, 918 more especially is it said that they are to be construed liberally, to carry out the purpose of the enactment, suppress the mischief and advance the remedy contemplated by the Legislature; 9 " i.e., and this is all that liberal construction consists in — they are to be construed "giving the words . . the largest, the fullest, and most extensive meaning of which they are susceptible." 217 The object of this kind of statutes being to cure a weakness in the old law, to supply an omission, to enforce a right, or to redress a wrong, it is but reasonable to suppose that the Legislature intended to do so as effectually, broadly and completely, as the language used, when understood in its most extensive signification, would indicate. § 108. What are Remedial Acts. — [It would, of COUl'Se, be impossible to enumerate, in detail, the different classes of statutes which go to make up this great division. A few of the more prominent ones, in which the rule of liberal con- struction seems most generally recognized, may, however, be mentioned as illustrations. Such are statutes having for their end the promotion of important and beneficial public objects; 218 e. {/., in connection with the necessary regulation and regular supply of a great and growing city ; 219 or curing -" Sedw. p. 32. And see Avery 382 ; Schuylkill Nav. Co. v. Loose, v. Groton, 36 Conn. 304. 19 Id. 15; Cullerton v. Mead, 22 215 " Of all classifications of acts Cat. U5 : White v. The .Mary Ann, of Parliament the most important Id. 402; Fox v. New Orleans, 12 is Unit by which they are divided La. An. 154; Fox v. Sloo, 10 Id. into Remedial and Penal Statutes, 11 ; Franklin v. Franklin, 1 Md. or rather into such as are construed Ch. 342; MeCormick v. Alexander, liberally and such as are construed 2 Ohio, 74; Lessee of Burgett, 1 strictly:" Wilb. 230. Id. 481; Pancoast v. Ruffln, Id. 218 See Vigo's Case, 21 Wall. 648; 385; Wilber v. Paine, Id. 256; Smitli v. Moffat, 1 Part). (N. Y.) Slate v. Blair, 82 Ind. 313; White 65; Hudler v. Golden, 36 N. Y. Co. v. Key, 30 Ark. 603, and cases 44(5 ; Smith v. Stevens, 82 111. 554 ; infra. See also Bish., Wr. L. § Chicago, etc., R R, Co. v. Dunn. 120. 52 Id. 260 ; Jackson v. Warren. 32 2n Wilb., p. 2;;:.. Id. 331 ; Davenport v. Barnes, 2 N. - lj See New Orleans v. St. .1. L, 211; Poor Distr. v. Poor Romes, 9 La. An. 573 ; Wolcott v. Distr., 109 Pa. Si. 579; Hassen- Pond, 19 Conn. 597. plug's App., 106 Id. 527; Quinn « 9 Marshall v. Vultee, 1 E. D. v. Fidelity Ben. Ass'n, 100 Id. Smith (N. Y.) 294. 108] SUBJECT MATTER AND OBJECT. 143 irregularities in the formation of school districts. 520 So, an act permitting the City of New York to enlarge the .-lips for ship- ping was held to include both lengthening and widening, and not to be limited to those already existing. 3 " Similarly, the phrase "internal improvements," in a statute conferring powers in aid of such upon a municipality would not be construed to mean merely improvements internal to the town. 2 '" Such agrain are statutes relating to the administration of justice, 223 and the practice of the law ; 224 e. (/., statutes per- mitting amendments, 226 giving the right of appeal, 220 orextend- ing, 227 or preserving 228 the same 229 ; providing for the arbitration of causes; 230 allowing the Court to open judgments, obtained by fraud, 231 or to open, re-examine and correct the accounts of public officers. 232 To illustrate : an act passed in 1857 authorized suits to be brought against fire insurance com- panies in the county in which "the property insured" may be located ; an act passed in 1868 extended " all the provi- sions" of the act of 1857 to life and accident insurance com- panies, and it was held that suit might thereafter be brought against life insurance companies in the county where the person insured, resided, on the ground that the act of 1868 was a remedial one, and that, without this adaptation 220 Stratford Sch. Distr. v. Ufford, 52 Conn. 44. 221 Ibid. 222 Set; Wetumpka v. Winter, 29 Ala. 651 ; also Low v. Marysville, 5 Cal. 214. 223 Mitchell v. Mitchell, 1 Gill. (Md.) GG. And see Russell v. Wheeler, Hemps. 3, that statutes creating limited jurisdictions are to be construed liberally as to the procedure : see §§ 152, 351. 224 Receivers v. Sav. B'k, 10 N. J. Eq. 304. 223 Fidler v. Plershey, 90 Pa. St. 3G3 ; so as to apply to equity pro- ceedings as well as actions at law : Dick's App., 106 Id. 589, 59G ; and to authorize an amendment of a declaration after verdict and before judgment : Bolton v. King, 105 Id. 78. ~ 226 Pearson v. Lovejoy, 53 Barb. Cadbury v. Duval, 10 Pa. Si. Bokenham, 11 Mod. 150; see also 205, 270; Ihmsen v. .Navigation Harbert's Case, 3 Kep. L3b. [Lee Co., 32 Id. 15:3, 157; Com'th v. v. Forman, 3 Mete. (Ky.) Ml; Shopp, 1 Woodw. (Pa.) 123,129. McAfee v. R. R. Co., 36 Miss. 669; And see I Kent, Comm. 464. Pavamore v. Taylor, 11 Gratt. (Va.) (d) 1 Hawk. P. C, c. 65, s. 45 ; 220 ; Schepp v. City of Reading, i lie Peerless, 1 Q. B. 153; R. v. Woodw. (Pa.) 460; Kerlin v. Fylingdales, 7 B. & C. 438. Bull, 1 ball. (Pa.) 175.] (e) ft v. Cheltenham, 1 Q. B. (6) 2 Cranch, 390. 467. (c) Per Sir J. Romilly in Minet (/) Bonham's Case, S Rep. 118a; v. Leman, 20 Beav. 278, 2 1 L.J. Great Charte v. Kennington, 2 Ch. 547; Wear Commissioners v. Stra. 1 1 7 ;J ; R. v. Sainsbury, 4 T. \ damson, 1 Q. B. I). 546, per 11.456. Mellish, L. J., 2 A pp. 783. {n H4] SOOPE AND PURPOSE OF ACT. 153 any other course of proceeding than that established by law (a). So, the Debtors Act, 18G9, which empowers " any (Inferior) Court " to commit lor default of payment of a debt under fifty pounds, in pursuance of an order or judgment of " that or any other competent Court," did not authorize such a Court to commit, unless the debtor was subject to its general jurisdiction by residence or business (b). An Act which authorized a distress would not author- ize a seizure of goods in eustodia legis (c). [And foreign attachments, under statutes authorizing such, being held to lie only for the recovery of debts or damages arising ex con- tractu," an act providing that, " where two or more persons shall be jointly but not severally liable to the suit of another, if one or more of such persons shall be liable to attachment as aforesaid, and another, or others shall not be liable to such process," an attachment may be issued against the for- mer and a summons against the latter, was held confined to its object of giving the action when one of the joint debtors resided out of the state and had property within it, and not to change the rule limiting the remedy by foreign attach- ment to claims ex contractu, to the exclusion of demands founded in tort. 3 ] The provision in the Judicature Act of 1873, that the Court might grant an injunction in all cases in which it should consider it "just and convenient " that such an order should be made, did not extend the authority of the Court beyond cases where there is an invasion of re- cognized legal or equitable rights (d). [An act provided, that, in all proceedings in courts of law and equity, in which it should be alleged that the private rights of a party, etc., were injured or invaded by any corporation claiming to have a right or franchise to do the act from which such injury resulted, it should be the duty of the court to (a) Dalt. c. 6, s. 6. Barnes v. Buck, 1 Lans. (N. Y.) (b) 32 & 3:! Vict. c. 62 ; Washer 268. v. Elliot, 1 0. P. D. 169. 3 Boyer v. Bullard, 103 Pa. St. (c) 17 & 18 Vict. c. 104, s. 523 ; 555. The Westmoreland, 2 W. Rob. (d) Sect. 25, subs. 8; Beddow 394 v. Beddow, 9 Ch. 1). 89; Day v. - See Jacoby v. Gogell, 5 Serg. & Brownrigg, 10 Ch. D. 294; and per U (Pa) 450"; Porter v. llilde- Lord Uatheiley, in Reuss v. Bos, brand, 14 Pa. St. 129. And see L. R. 5 A.pp. 193. 151 -'' 'I'l. ami l'l!;i' ISE OF A.CT. [§ 114 examine and ascertain whether such corporation in fact possessed the right or franchise thus claimed by it. It was held that this act merely enabled private citizens to call upon a corporation to show, by its charter, that it had the power to . ). [Upon the same principle, it was held, that, under an act unqualifiedly em- powering justices of the peace to take the separate acknowl- edgment of married woman of their free and voluntary execu- tion of deeds conveying their property or interest in property of the husband, a magistrate bound to make title himself or by a conveyance from a third party is incompetent to receive; the acknowledgment of the grantor's wife. 6 ] So, an Act which directed the election of officers would be understood 1 Western Pa. R. R. Co.'s App., 28 L. J. 310 ; R. v. Tewkesbury, 101 Pa. Si. 399. Comp. on this L. R. 3 Q. 15. C:J9 ; It. v. Milledge, subject, Endlich Build'g Ass'ns, {& 4 Q. B. 1). 332, S. C, nom. R. v. 504,512. and casus there referred Weymouth, 48 L. J. 139. i,,. B Withers v. Baird, 7 Watts (Pa.) Foster v. G. W. R. Co.. 51 227. Thai the taking of such li. .1. o. B. 2:;:;. [Comp. Cotn'th acknowledgment is a judicial act, v. Quinter, 2 Woodw. (Pa.)377.J see, Hud.; Jamison v. Jamison, 3 (b) R. v. Owens, 2 E. & B. 86, Whart. (Pa.) 457; London v. §115] SCOPE AND PURPOSE OF ACT. 155 as authorizing it only on a lawful day, and not on a Sunday (a); and if it declared that the candidate who had the major ity of votes should he deemed elected, it would he construed as not intending to override the general principle, that voters who vote for a person whom they knew to he ineligible, throw away their votes (h). § 115. In the same way, a statute requiring a recognizance would not he understood as giving competency to minors and married women to hind themselves by such an instru- ment (c). The Wills Act of Hen. 8, which empowered " all persons" to devise their lands, did not legalize a devise of land to a corporation (//), nor would it have enabled lunatics or minors to make a will, even if the 33 & 34 lien. 8, s. 1-t, had not been passed to prevent a different construction (e). The object of the Legislature was, obviously, only to confer a new power of disposition on persons already of capacity to deal with their property, not to relieve from disability from disposing or taking those who were under such incapacity. [So, where an act gave to all persons of full age and sound mind the right to dispose of their real estate, as well by last will and testament in writing, as otherwise, by any act execut- ed in his or her life-time, it was held not to extend to married women, on the ground that it was not the design of the Legis- lature to alter the relation between husband and wife, or the legal effect of that relation by mere implication from language not expressing any such intention. Nor does an act pro- Blythe. 10 Pa. St. 5:32, 540 ; Heeler App. C. 01 ; Li re Free Grammar v Glasgow, 7!) Id. 79 ; Singer Man. School, 12 hi. 444, 450.] Co. v. Rook, 84 Id. 442 ; Com'th v. (e) Custodes v. Jinks, Styles, Haines 0? Id. 228; Uomceop. 283; Draper v. Glenfield, Bulstr. Life Ink Co. v. Marshall, 32 N. J. 345; Coleman v. Birmingham, Eq. 103. And as to Hie principle Q. B. I>. 015: 20 L. .). 92 (see :)\i that interest disqualifies tor a judi- 1». & Cli. 219.* [So, "entitled." in a A. 492. statute, means legally entitled : In G Osgood v. Breed, 12 Mass. re Coldneld Grammar School, 7 530 ; Wilbur v. Crane, 13 Pick. * See Addenda. 150 SCOPE AND PUliPOSE OF ACT. [§115 viding that '* any married female may take . . . convey and devise real or personal property," authorize a married female infant to devise real estal The 43 Eliz. c. 2, in making the mother and grandmother of an illegitimate child liable to maintain it, did not reach them when under coverture, and so in a state of inability to perform that duty (a) ; and an Act which punished "every person'' who deserted his or her children would not apply to a married woman whom her husband had deserted (b). [Xor is one, who, in his official capacity, makes, and incorporates in his official report, sketches and the like, to be deemed the " author " of the same within the copy-right laws. 8 ] So, the enactment which gave a vote for the election of town councillors to every " person " of full age who had occupied a house for a certain time, and provided that words importing the masculine gen- der should include females for all purposes relating to the right to vote, was held, having regard to the general scope of the Act, to remove only that disability which was founded on sex, but not to affect that which was the result of marriage as well as sex, and therefore not to give the right of voting to married women (c). An Act which simply left the deter- mination of a matter to a majority of vestrymen " present at (Mass.) 284. It is said, that, in lay as well as legal writings, the word " all " is frequently and care- lessly used where its generality is to be restricted by context and intention : Phillips v. Saunders, 15 Ga. 518. So the phrase "every case," in La. Civ. Code, 8 3521, was held to mean every class of cases or subject matter expressly legislated upon in the Code : D'Apremont v. Berry, G La. An. 464. 1 Zimmerman v. Schoenfeldt, G Th. & C. (X. Y.) 142 ; 3 Hun, G92. (a) Bennett v. Watson, ;; M. & S. 1 ; Exp. Barrow, 3 Vcs. 554 ; Hussey's Case. 9 Rep. 73. [An act authorizing the court of Quar- ter Sessions to order children to support their indigent and disabled parents, was held not to relieve i he poor-district from the legal liability to provide for such per- sons not haviug a settlement there, until the\ r could be removed to the place of their last settlement : Kelly Tp. v. Union Tp., 5 Watts &Serg. (Pa.) 535.] (b) Peters v. Cowie, 2 Q. B. D. 131. 8 Heine v. Appleton, 4 Blatchf. 125. Nor an official reporter of judicial decisions, except as to the lieadnotes prefixed to his reports of cases : Whealon v. Peters 8 Pel. 591,698 ; Little v. Gould, 2 Blatchf. i <;:>. (c) 32 & 33 Vict. c. 55, s. 9 ; R. v. Harrald, L. R. 7 Q. B. 361 ; see Chorlton v. Lin^s, L. R. 4 C. P. 874. [See Thicknesse, llusb. and \\\, at p. 19 : " When the result is not revolutionary but remedial, and consistent with another act, made the following session, the word 'person' wili be interpreted in its natural meaning, and will include not only a single woman, but a married one also. "J § 116] SCOPE AND PURPOSE OF ACT. 157 the meeting " would not affect the common law right of the minority to demand a poll ; and the " meeting" would there- fore he understood as continuing until the end of the poll (a). A charitable provision for the support of "maimed" soldiers would not extend to soldiers who had been maimed in the service of a foreign state, or in punishment* for a crime (h). A statute which enacted that " every convey- ance " in a particular form should be " valid," would not receive the sweeping effect, so foreign to its object, as that of curing a defect of title (c). [Nor will a statute author- izing a county to convey to the State certain lands "as the said county shall now hold by virtue of tax deeds issued upon sales for delinquent taxes heretofore made," validate, or apply to land held by the county, under tax-deeds void on their face ; and this, although, in fact, there were no lands to which the act, thus construed, could apply. 9 So a statute declaring of full force all ordinances of a city, etc., "in operation" at the date of its passage, has no effect upon one, which, before that time, had been judi- cially pronounced inoperative. 10 Again an act validating certain sales made by persons in a fiduciary capacity in the event of any irregularity or defect existing in the appoint- ment or qualification of such trustee, etc., cures only defects in the proceedings where the court had jurisdiction of the subject matter, and does not validate a sale made by a trustee, etc., who was irregularly and defectively appointed or qualified by a court that had no jurisdiction to make such an appointment. 11 ] § 116. So, the Tithe Commutation Act, in declaring maps made under its provisions, "satisfactory evidence" of the matters therein stated, would not have the effect of making them evidence on a question of title between landowners, a (a) 5 & Win. 4, c. 7G, s. 18 ; R. see also Whidborne v. Ecclcs, v. How, 33 L. J. M. 0. 53 (Q. B.) ; Coin., 7 Ch. D. 375, 47 L. J. 129 : White v. Steel, 12 C. B. N. S. 383, Forbes v. Eecles. Com., 15 Eq. 51. 31 L. J. 265 ; 11. v. St. Mary, 3 9 Haseltine v. Hewitt, 01 Wis. Nev. & P. 410 ; R. v. D'Oyley, 12 121. A. & E. 139. 10 Allen v. Savannah, 9 Ga. 286. (6) Duke, Charit. Uses, 134. » Ilaklermau v. Young, 107 Pa. (c) Ward v. Scott, 3 Camp. 284 ; St. 324. L58 'PE AM) PI BPOSE OF A.CT. [§ UG matter foreign to the scope of the Act (a). So, ;i ship built in England for a foreigner would not be ;i " British ship" within the provisions requiring registration and transfer by bill of sale, even while still the property of the English builder (b). [Nor did the New Jersey statute declaring every ^warrant of attorney for the confession of judgment, included in any bond, bill, or other instrument, void, prohib- it the making, in that state", of such warrant of attorney for use in other states. 18 ] The Bankrupt Act, which makes a composition accepted under certain circumstances by credi- tors binding on all creditors " whose names are shown in the debtor's statement," with the proviso that it "shall not affect any other creditor," would exclude only non-assenting creditors, but not creditors whose names were not stated in the debtor's statement, if, in fact, they assented; for it would be understood as not intending to interfere with the general principle that it is competent to a person to bind himself by such an assent (c). The 12 Car. 2, c. 17, which enacted that all persons presented to benefices in the time of the Commonwealth, and who should conform as directed by the Act, should be confirmed therein, " notwithstanding any act or thing whatsoever," was obviously not intended to apply to a person who had been simoniacally presented ( (a) London "Waterworks Co. v. 19 Delafield v. Colden, 1 Paige Bailey, 4 Bins:. 283 (N. Y.) 139. (b) 10 Geo. 4, o. 56, s. 27 ; Morri- 2 ° Carters App., 10 Pa. St. 144. sou v. Grover, 4 Ex. 430. See also 21 Fliniham v. Forsythe, 9 Serg. Prentice v. London. L. II. 10 C. & R. (Pa.) 133. P. 679 ; Fleming v. Self, 3 De G., M Bvrnc v. Walker, 7 Id. 4S3. M. G. 997 ; Mulkern v. Lord, 4 (c) Marshall v. Bown, 7 M. & A pp. 182, 48 L. J.Ch. 745. Comp. Gr. 188; Uoyland v. Breumer, 2 Wright v. Monarch Invest. Soc, 5 C. B. 8-1. Ch. D. 726, and Hack v. London ((0 Philpotts v. Philpotts, 10 C Provid. Building Soc, 23 Ch. D. B. 85. 103. 11 162 SCOPE A.\ii PUKPOSE OF A.< C. [§ 1 19 entire instrument containing the grant of such land, but only those portions thereof as are in violation of the statutes. 23 ] § 119. In the 21 & 25 \ r ict. c. 96, which consolidates the law relating to larceny and analogous offences, the provision which imposes apenaltyfor ''unlawfully and wilfully " kill- ing a pigeon under circumstances not amounting to larceny, was construed as not applying to a man who had intention- ally and without legal justification shot his neighbor's pigeons which were in the habit of feeding upon his land ; his object being to prevent a recurrence of the trespass. His act was " unlawful," in the sense that it was actionable; and it was undoubtedly " wilful " also ; but as the object and scope of the Act were to punish crimes and not mere civil injuries, the word "unlawfully" was construed as " against the criminal law " (a). [So, one who removes a seal from property which has been sealed up by officers of the customs, in ignorance of its character, and in the honest execution of a supposed duty in the care and transportation of the property, is not liable to punishment under a statute prohibiting" wilfully " removing an official seal. 84 ] An Act which visited with fine and dismissal a road surveyor who demanded or wilfully received higher fees than those allowed by the Act, would not affect a surveyor who, under an honest mistake of fact, demanded a fee to which he was not entitled (h). [Similarly, a statute annulling any " wil- fully false claim " would not affect the case of a mere dis- crepancy in the amount of the claim as filed of such a des- cription as may be consistent with good faith. 25 Nor would a contract made usurious by a mere mistake in the calcula- tion, and not by any wrongful intent, be void under a statute I'owle v. Smith, 2 Robt. (N. state of intoxication). An act may, Y ) 48'.). And sec ante, § 98, Jack- however, be " wrongful," although son v Collins, 3 Cow. (N. Y) 85. committed entirely by mistake: (a) Taylor v. Newman, 4 B. & 8. Webber v. Quaw, 40 Wis. 118. 89 32 L J. M. C. 186. See also See "Knowingly and wilfully, Kenyon v Hart, 6 Best & S. 249, post, § V.'A>, U. S, v. McKim, 3 :i L. .1. M. C. 87; Daniel v. .lanes, Pilts. Rep. 155.1 2 C P. D. 351 ; Spicer v. Barnard, 24 U. S. v. R. R. Cars, 1 Abb. U. 1 E. & E. 874, 28 L. J. 176. [As S. 196. See post, § 129. to the meaning of " wilfullv," Bee (6) It. v. Badger, 6 E. & B. 13, 25 State v. Preston, 34 Wis. 675; L. J. M. C. 8. Smith v.Wilcox, 47 Vt. 537 (in 25 Barber v. Reynolds, 44 Cal. relation to acts committed in a 519, o'S'i. § 120] SCOPE AND PURPOSE OF ACT. 1G3 avoiding usurious contracts. 28 Conversely, an act of the Legislature of Missouri, of March 17, 1868, approving the sale and confirming the title of the Iron Mountain Railroad Company in the purchaser, did not prevent the State from prosecuting claims against the parties who had committed frauds against the state in relation to the railroad. 27 ] An Act which empowered inspectors to inspect the scales, weights and measures of persons offering goods for sale, and of seizing any found " light and unjust," was construed as limited to cases where the injustice was prejudicial to the buyer, but as not applying to a balance which gave seven- teen ounces to the pound, that is, which was unjust against the seller ; since the object and scope of the Act were limited to the protection of the former (a). § 120. An Act which, after appointing trustees to pull down and rebuild a parish church, authorized them to allot the pews and to sell the fee simple of such of them as were not appropriated bj T the Act, to the inhabitants of the parish, with power to the owners to dispose of them, was held not to authorize a conveyance of the soil and freehold of the land on which the pews stood, but only the easement, or right to sit in the pew during divine service (Z»). And where a church was built, under a similar Act, by subscrib- ers in whom the freehold was vested, and the trustees had power to sell the pews ; and a subsequent Act, reciting that doubts had arisen as to the estate and interest which the sub- scribers and proprietors had in the pews, enacted that the fee simple should be vested in them, it was held that it was not the freehold interest in the soil that was vested in them, but a special interest created by Parliament in the easement (c). So, the Public Health Act of 1875, which enacted that the streets should vest in the local authority was con- strued as intending, not that the soil and freehold should 26 Sutton v. Fletcher, 6 Blackf. 4 B. & A. 212 : East Gloucestershire (Ind.) 362. And see Mortimer v. R. Co. v. Bartholomew, L. R. 3 Ex. Pritchard, 1 Bailey Eq. (S. C.) 15. 505. (b) Hinde v. Chorlton, L. R. 2 C. 27 State v. McKay, 43 Mo. 594. P. 104. (a) Brooke v. Shad^ute, L. R. 8 (c) Brumfitt v. Roberts, L. R. 5 Q. B. 352. See Edwards v. Dick, C. P. 224. 104: SCOPE AND PURPOSE OF ACT. [§ 120 vest, but only the surface of tlie soil, and as much of it in depth as was necessary for doing all that was reasonably and usually done in streets (a), and for so long only as it con- tinued to be a street {b). [Similarly, where an act authorized the Orphans' Court to appoint trustees of the estates of absentees, durante absentia, it was held that such appoint- ment imported only the absence of the person for whom the trustee was desired, and did not adjudicate the ownership of any property made the subject of the trust, or that the absentee is either dead or alive. 28 An act providing that "every will shall be construed, with reference to the real and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will," affects only the property devised or bequeathed, and does not create a disposing power in the testator just before his death which he did not possess when he executed the will : " if lie was clearly incompetent to make a will when he executed one, the fact that just before his death he became entirely competent to execute one, but did not," does not validate the will. 29 An act exempting a homestead to a debtor decides nothing as to his title. 80 ] The Metropolitan Building Act of 185;"), which gives a right to raise any party structure authorized by the Act, on condition of " making good all damage " occasioned there- by to the adjoining premises, was held not to authorize the raisins: of a structure which obstructed the ancient lights of the adjoining premises; for the only damage contemplated, by the Act was structural, and not that which resulted from the invasion of a right. And, having regard to the scope of the enactment, the expression " making good ' : was understood to mean that the adjoining premises were to be {a) Covcrdalc v. Charlton, 4 Q. a separate estate in favor of a B. D. 104, 48 L. J. 128. daughter then 10 years of age and (b) Rolls v. St. George, South- not in immediate contemplation of wark, 14 Ch. D. 785. marriage, is not rendered effectual 28 Esterly's App., 109 Pa. St. by the fact that 8 years thereafter, 222, upon the act 11 Apr. 1879, P. and before the testator's death, the L. 21. girl married : Ibid. 29 Neale's App., 104 Pa. St. 214. ao Re Svvearinger, 5 Sawyer, 52;. Hence a will undertaking to create Spencer v. Geissmau, o7 Cal. 90. § 121] SCOPE AND PURPOSE OF ACT. 165 restored to their original state, not that pecuniary compen- sation should be made (a). § 121. Some decisions on the construction of the 74th section of the Harbors Act of 1847, illustrate the principle under consideration. That section enacts that the owner of a vessel is to be answerable for any damage done by it, or by any person employed in it, to a harbor, pier or dock, ex- cept when the vessel is in charge of a compulsorily taken pilot. Construed literally, as it was by the Queen's Bench (h), it made an owner responsible for the injury done by his ship to a pier, after she had been driven aground and neces- sarily abandoned by her crew, and was dashed by the storm against the pier. The Court of Exchequer Chamber thought that the enactment was to be construed as tacitly ex- cepting damage done by the act of God and the Queen's enemies, for which by the general law of the land, a ship owner is not responsible (c). The House of Lords held that the owner was not liable, on the ground that the general scope and object of the Act were merely to collect the clauses which Parliament usually inserted in local har- bor bills, and to give facilities of procedure to the under- takers of such works ; and that the section did not create a new liability, but only facilitated proceedings against the •registered owner when damages were recoverable (cl). The Act 16 & 17 Vict. c. 96, for regulating the care and treatment of lunatics, furnishes a remarkable illustration of the principle under consideration. Its provision that any superintendent, officer, nurse or servant of any registered hospital or licensed house, "or any person having the care or charge of any single patient," who ill-treated a patient, was held not to apply to a husband who ill-treats his lunatic wife ; for it was not within the scope of the Act to deal with cases where the custody of the lunatic was owing to domes- tic relationship ; and the woman was in her husband's cus- tody, not because she was mad, but because she was his (,r) Crofts v. llaldane, L. R. 2 Q. (b) 10 Vict. c. 27; Dennis v. B. 1!)4. [See for construction of Tovell, L. R. 8 Q. B. 10. the phrase "make good all losses (f) Wear Commissioners v. to depositors:" Queenau v. Palmer, Adamson. L. R. 1 Q. B. D. 546. 117 111. 619.] (d) Id. 2 App. 74o. L66 SCOPE AND PURPOSE OF A.CT. [§ 122' wife (a). Bat the Act would apply toa man who ill-treated his lunatic brother in his charge, for he has no legal custody of him by virtue of his relationship (b). § 122. [As further instructive illustrations of this princi- ple of construction the following instances may be cited. Where a statute provided that the original jurisdiction of the Circuit Court of the Southern District of New York should be confined to causes arising within said district, and should not extend to causes arising within the Northern District, — the object of the provision clearly being to appor- tion jurisdiction and business as between the two districts only, — it was held, that, from the jurisdiction of the Southern District Circuit Court only such causes were to be deemed excluded by the act, as arose in the Northern District, not, however, such as arose outside of both districts. 31 Similarly, a statute, providing that a person should not be sued before any justice of the peace except in the township in which he resided, having for its immediate object to prevent justices at the county seat from monopolizing the business in the county, was held not to apply to the case of a resident of another county or state coming into a town and there served with process. 32 So, where the object, of an act was merely the disposal of certain property of a city, and, in the descrip- tion of the same in the statute, a certain street was referred to as a boundary of the entire one side of the same, whilst in fact, it extended along only part of it, such reference was held ineffectual to extend the street itself in length. 33 And an act extending the bounds of a town over adjacent navigable waters, the extension being merely for the purpose of civil and criminal jurisdiction, was held not to operate as a grant to the town of the land covered by the waters. 34 An act conferring equity jurisdiction in " all cases of trust arising (a) 11. v. Rundle, Dears. 482, 24 should be understood in a particu- L. J. M. C. 129. lar sense ; and (2) of t he presump- (b) R. v. Porter, Leigh & 0. 894, tion againsl an intention to narrow 33 L. J. M. C. 126. the jurisdiction of a court: see post, 31 Wheeler v. McCormiek, 8 g£ 151 et seq. Blatchf. 267. This interpretation 32 Maxwell v. Collins. 8 Ind. 38. seemsalso justifiable on the grounds 33 People v. Dana, 22 Cal. 11. (1) of an intention appearing from. 34 Palmer v. Hicks, G Johns. (N. the context that the general words Y.) 133. § 12*2] SCOPE A.ND PI RPOS] ( I l' ; ~ under deeds, wills, or in the settlement of estates" was held to apply only to express trusts arising from the written con- tract of the decedent, not to such as are implied by law or grow out of the official situation of an executor or adminis- trator." Another, relating to uses and trusts, was similarly confined to real estate ; 30 and the provision of the judiciary act declaring the laws of the several states the rule of decis- ion in federal courts in certain cases, was held inapplicable in the construction of ordinary contracts and questions of general commercial law. 87 So, an act causing forfeiture of a life estate leaves unaffected the estate in remainder, 88 and one making long terms of years real estate for certain pur- poses has no effect upon the reversions expectant upon those terms. 39 Similarly, a private act directing the sale of a per- son's property by the Surveyor-General without warranty, and the application of the money in payment of certain cred- itors, operates only as a quit claim of any right or interest of the State in the property and does not take away the rights of third persons. 40 An act legalizing the action of certain townships as to paying bounties, etc., does not extend to refunding advances made by individuals on their own account and not on the credit of the townships, or in reli- ance upon their subsequent ratification. 41 An act permitting a turnpike road company to abandon a portion of its road, does not discharge its directors from a penalty incurred in reference to such portion of the road previously to the act authorizing its abandonment. 43 A provision that the trans- fer of a public contract shall cause its annulment, does not apply to a preliminary arrangement for the purpose merely of uniting capital to obtain the means of fulfilling the con- tract, in the absence of any corrupt intention to influence the bidding or evade the duties and responsibilities of a pub- lic contractor. 43 Nor does an act "regulating criminal pro- 85 Given v. Simpson, 5 Me. 303. 41 People v. Supervisors, 14 86 Baker v. Terrell, 8 Minn. 198. Mich. 336. Comp. Weister v. 31 Swift v. Tyson, 16 Pet. 1. Hade, 52 Pa. St. 474, ante, § 79. 38 Archer v. Jones, 20 Miss. 583. ; Kane v. People, 8 Wend. (N. 89 Burnett v. Thompson, 7 Jones Y.) 203. L (N. C.)407. « Field v. U. S., 16 Ct. of CI 40 Jackson v. Catlin, 2 Johns. 434. (N. Y.) 248. l(J8 S OPE AND PURPOSE OF Al I. [§ 123 ceedings" extend to collateral issues ;" nor a statute requir- ing a contractor for work for the state to give bond with sureties to pay all laborers employed by him on the work included in his contract, to laborers employed by a sub- contractor." So, it was held that the act 2 March, 1867, relating to removal of suits from state to U. S. Circuit courts, had no application to a controversy between a citi- zen of the state in which suit is brought and an alien. 40 An act annulling " all agreements to pay attorney fees, depend- ing on any condition," made part of any bill, note, etc., for- bids only conditional agreements, not absolute or unqualified ones ; 47 and by reference to its purpose, an act may be shown to be designed to have a retrospective or curative operation only, and to be without prospective force. 48 § 123. [So, where an act declaring the property of mar- ried women to be theirs and empowering them to use and enjoy the same, as if sole, was construed to have been in- tended merely for the protection of the wife's property against the husband's interference and his creditors, it was held to be beyond its scope to give her an absolute right to dispose of her estate without the husband's consent, or in any other way to alter the legal incidents of the marriage relation. 49 Nor would a provision, that on a judgment recovered against husband and wife for the tort of the latter, execution shall first issue against the property of the wife, give any exemption to the husband from liability for his wife's torts, beyond this primary liability of her estate."" Nor can a provision making the wife liable for her own torts have the effect of removing the husband's liability for acts of the wife done under circumstances amounting to coercion on his part, which, therefore, the law regards, as the torts of the husband. 01 And it has been held that an en- « People v Youngs, 1 Cai. (N. 49 Pcttit v. Fretz, 33.Pa. St. 118 Y .) 37. l "> Quiek v. Miller, 103 Pa. St. 45 McCluskey v. Cromwell, 11 07. jj y 593 M See Longey v. Leach, 57 Vt. 46 Stinson v. 11. R. Co., 20 Minn. 377 ; Doherty v. Madgett (Vt.) 2 490 Ail. Rep. 115; Weber v. Weber, «' Churchman v. Martin, 54 Ind. 47 Mich. 569. See Atty.-Gen. v. 380 Riddle, 2 Cr. & Jer. 493 ; Taylor 4 * See Marsh v. Nelson, L01 Pa. v. Greene, 8 Car. & P. 316 ; 34 E. St. 51 ; Lucas v. Stale, 86 End. 180. C L. R. 754. £124] SCOPE ami PUKPOSE OF A.CT. 169 actment declaring that a married woman may be sued for her torts, without joinder of her husband, and in all respects as if sole, does not take away her common law Immunity from arrest on capias ad respondendum. 02 Xor does a statutory provision rendering a married woman capable of suing, in all respects as if she were a feme sole, without joinder of her husband, abrogate the rule that a married woman cannot act as guardian ad litem, next friend, etc. ; the provision being designed to let her sue only for her own benefit." An act prescribing the manner in which husband and wife may il dispose of and convey the estate of the wife or her right of, in, or to any lands, tenements, or hereditaments whatsoever," was held to enable a married woman to convey or incumber only her existing interest in realty held in possession, remain- der or reversion, and not to make, e. g., a valid mortgage of an estate resting in mere possibility, which could be effectual, at best, only as a contract to convey and as in the nature of a covenant to stand seized. 54 Nor does an act giving to the wife, as her separate property, with or without the right of suit, the earnings of her labor, change the law so as to give her a claim for work done by her for her husband, or in his business. 65 ^ 124. [An act intended to remove the incompetency of parties to suits and other legal proceedings, on the score of interest, to testify therein, cannot have the effect of render- ing incompetent one, who before the act, was a competent witness. 00 Nor will an act declaring that all former deeds shall have a certain effect, if certain requisites are observed, prevent their being used as evidence in the v the debts of her husband, that being a power she had before, and the transaction not necessarily, or even properly, being included under the term suretyship." Similarly, an act prohibiting preferences in assignments by debtors, in trust for benefit of creditors and requiring the assignment to stand for the benefit of all the creditors, does not impliedly prohibit all compositions with creditors, the law, before that act, recognizing compositions with, as welL as an assignment for creditors, 69 nor, indeed, does it annul a preference in any other mode than by such an assignment. 80 § 125. [An act authorizing a writ of error to be sued out by any person aggrieved " by the judgment of any court of common pleas upon any writ of quo warranto," etc., does not change the rule of law that the allowance of the writ, in the first instance, is discretionary, and hence the action of the court upon a rule to show cause why the writ should not issue is not the subject of a writ of error. 81 So, an act giving an appeal from the refusal of the court to open judgments entered on warrants of attorney, does not change the rule that the exercise of such jurisdiction lies within the sound discretion of the Court, and all the reviewing court has to determine is, whether the discretion was properly exercised below. 88 Moreover, where a judgment has been revived, the act will apply in those cases in which the revival was amicable ; 83 but not in those in which the revival was by adversary proceeding: 64 the former case being within the obvious purpose of the statute, i. e., to give the defendant a day in court ; and the latter being as obviously beyond its scope ; for the defendant has had his day. 86 And so, where " Jackson v. Bradt, 2 Cai. (N. 60 York Co. B'k v. Carter, 38 Pa. Y.) 1G9. St. 44G. 68 See Butterfield v. Okie, 36 N. 61 Com'th v. Davis, 109 Pa. St. J. Eq. 482 ; Baldwin v. Flagg, Id. 128. 48 ; Bartlett v. Bartlett, 4 Allen 6i Barley's App., 90 Pa. St. 321. (Mass.) 1-10 ; Ik-burn v. Warner, •» Lamb's App.. 89 Pa. St. 407. 112 Mass. 271. C4 First Nat. Bank's App., 106 ' Wiener v. Davis, 18 Pa. St. Pa. St. 68. 331 65 See lb. p. 71 § 12GJ SCOPE AND PURPOSE OF ACT. 171 an act provided, that, upon the trial of all cases, exclusively triable in the court of Oyer and Terminer, " exceptions to- any decision of the court may be made by the defendant, and a bill thereof shall be sealed in the same manner as is provided and practised in civil cases; and the accused, after conviction and sentence, may remove the indictment, record, and all proceedings to the Supreme Court," it was held that the act did not authorize exception or writ of error to a matter, which, in civil cases, was recognized as one of dis- cretion with the trial court ; e. g., to the refusal of a new trial or a continuance, attachment of witnesses, and the like, or the granting of a continuance on motion of the common- wealth. 6n § 126. [Again, a statute will not be construed as permit- ting an act, e. g., gaming, which is prohibited by previous statutes, if such construction can be fairly avoided." An act rendering parties in interest competent to testify on their own behalf will not affect the established rule that an indorser of a negotiable instrument shall not be a witness to invalidate the instrument to which he is a party. 68 The immediate object of the Pennsylvania interpleader act of 1848 being the protection of sheriffs, etc., it does not relieve the plaintiff in an execution, who directs the seizure of property of a person not a party against whom the process is issued from liability in trespass, unless, under the sheriff's rule, the owner voluntarily becomes a party to the adjudication of his claim." 9 So, an act giving the Court of Quarter Sessions jurisdiction to lay out public streets within the limits of boroughs in the county, and providing that " damages to the owner of land injured thereby shall be assessed as pro- vided under the general road laws," does not make the same payable under those laws, by the county, but loaves that liability upon the boroughs under tin 1 general borough law. 70 So an act providing for a method of assessing, etc., damages for injuries arising from an excavation or embankment within 66 Alexander v. Com'th, 105 Pa. 6S John's Adm'r v. Pardee, 109 St. 1. Pa. Si. 545. 61 Aicardi v. Alabama, 19 Wall. «» Larzelere v. Haubert, 109 Pa. 635. St. 515. '•/« re AirvStr., 113 Pa. St. 281. 17- SCOPE AND PURPOSE OF ACT. [§ 127 the boundaries of a public highway, will not, it is said, be extended beyond the purpose it expresses, e. (j., to the case of a railroad laying an additional track in front of plaintiff's lands, obstructing the approach to the same. 71 An act giving an adopted child the right to inherit was held not intended to change, in any respect, the law relating to collateral in- heritance taxes, from which only lineal descendants were exempted." Nor does an act authorizing attachment of wages for boarding debts deprive the debtor of the benefit, of the exemption laws, but can apply onty where the benefit of these laws is not claimed in proper time or form, or where the wages exceed the amount exempted. 73 Again, an act " to provide for the admission of certain classes of the insane into hospitals," etc., was held not to supply, modify or repeal any of the provisions of an earlier act respecting the issuing of a commission de lunatico inquirendo, and the disposition and control of the estates of lunatics ; so that the summary inquiry under the later act did not dispense with or prevent the inquisition under the earlier act, as related to the appoint- ment of a committee, the sale of real estate, etc. 74 Nor does an act imposing a penalty for cutting timber extend to the case of a co-tenant ; 75 or a statute limiting the time for recovery of fines and forfeitures to cases of murder or other felony. 76 § 127. Change of Common Law.— [It is observable from the decisions referred to in the preceding sections, that the pre- sumption against an intent to alter the existing law beyond the immediate scope and object of the enactment under con- struction, applies as well where the existing law is statutory, as where it is promulgated by decisions. 77 It refers to the whole system of pleading and practice to which the statute applies and of which its rule is to form a part : the latter 11 Cumberland, etc., R R. Co. v. « Wheeler v. Carpenter, 107 Pa. Rhoadarmer, 10? Pa. St. 214. St. 271. And Bee Newcastle, etc., R. R. Co. ; " State v. Taylor, 2 McCord (S. v. McChe'sney, 85 Id. 526. C.) 483. " Com'th "v. Nancrede, 32 Pa. " Sec Scd^w. p. 224, note ; for St. 389. the judicial decisions upon the 13 Smith v. McGiuty, 101 Pa. St. Statutes, as lias been seen, ante, § 402. 1, note 1, form a part of the statute ■' Ilaldennau's App., 104 Pa. St. law. 251. § 127] SCOPE AND PURPOSE OF ACT. 173 must be construed consistently with the former." And it refers equally to the common law, in whose rules and princi- ples a statute is not presumed to make any change beyond what is expressed in its provisions, or fairly implied in them, in order to give them full operation.™ It has been said that acts of congress are to be construed by the rules of the common law ; 80 that statutes are to be interpreted in the light of the common law, 81 with reference to the principles of the common law in force at the time of their passage ; M that technical legal terms are to be taken, as a general rule, and in the absence of a countervailing intent, in their estab- lished common law significance ;" 3 and that statutes in affirm- ance of the common law should be construed, as to their consequences, in accordance with the common law. 81 In all these cases and many others, the principle is recognized that an intent to alter the common law beyond the evident purpose of the act is nut to be presumed. It has, indeed, been expressly laid down, that "statutes are not presumed to make any alteration in the common law further, or other- wise, than the act does expressly declare ; therefore, in all general matters, the law presumes the act did not intend to make any alteration ; for, if the Parliament had that design, they would have expressed it in the act ;" 85 that " the rules of the common law are not to be changed by doubtful implica- tion." 86 And it is probably true, that, taking one case with another, "an intention on the part of the Legislature to- 78 McDonegal v. Doucjhertv, 14 v. La Crosse, etc., Co., 10 Minn. Ga. 074. 386 ; Blackmail v. Wheaton, 13 Id. 79 Scaife v. Stovall. 67 Ala. 237. 300. Tims the common law prin- 80 liice v. R. R. Co., 1 Black, ciple, that dispenses with notice of 358. The legislature is presumed cause of arrest where a person is to know the common law ; -tones taken in the commission of an v. Dexter, 8 Pla. 2?f>, 286. offence, or upon fresh pursuit 81 Scaife v. Stovall, supra. thereafter, is held not changed hy 82 Howe v. Peckham, How. the word "escape" in § 5038 of Pr. (N. Y.) 229. the Code of Tennessee, providing 83 Apple v. Apple, 1 Head an exception to the requirement of (Tenn.) 348 ; and see ante, s, 3. notice of cause of arrest where the 84 Baker v. Baker, 13 Cal. 87. person is taken in the actual com- 85 Arthur v. Bokenham, 11 Mod. mission of the offence, "oris pur- 150. And see, to substantially sued immediately after the escape," same effect, Heiskcll v. Baltimore, that word being used, not in its 65 Bid. 207. technical sense, but as equivalent 88 Wilbur v. Crane, 13 Pick, to "flee from:" Lewis v. State, 3 (Mass.) 284, 290. And see Bennett Head (Tenn.) 127. v. Hollman, 44 Miss. 323 ; Sullivan 174 SCOPE AND PCKPOSE OF ACT. [§127 alter the statute law is sometimes presumed upon much slighter grounds than would support any such inference in the case of the common law." 87 But in this country, the rule has assumed the form of a dogma, that all statutes in derogation of the common law, or out of the course of the common law, are to be strictly construed. 88 Undoubtedly, wherever the construction of an act falls under and is affected by the operation of the presumption against a change of the existing law beyond its immediate objects and purposes, the result is a certain strictness of construction. 89 But the ''strict construction" referred to in the formula stated goes beyond this, and requires, as in the interpretation of penal laws, 90 that a case, in order to be within the meaning of a statute in derogation of the common law, must be as well within its letter as within its spirit. 91 There arc, indeed, decisions scattered through the reports in which this doc- trine has not been followed, or possibly which establish, at least within their respective states, recognized exceptions to it. Thus it has been said, that, where a statute is intended to be a substitute for the common law rule, and not merely cumulative, it is to be liberally construed in accordance with that intention ;■* and in Iowa it was held that the code 81 Wilb., Stat. L. p. 21. 88 See Brown v. Barry, 3 Dall. 363 : Shaw v. II. R. Co., 101 U. S. 557 ; Burnside v. Whitney, 21 X. Y 148 ; Newell v. Wheeler, 48 Id. 4*6 ; Smith v. Moffat, 1 Barb. (N. Y.)65; Graham v. Van Wyck, 14 Id. 531 ; Perkins v. Perkins, 62 I<1. 531 ; Bussing v. Buslinell, 6 Hill (N. Y-) 382; Rue v. Alter, 5 Denio (X. Y.)119; Millard v. R. R. Co., 1) How. Pr. (IN. Y.) 238; Melody v. Reab, 4 Mass. 471; Gibson v. Jennv, 15 Id. 205 ; Com'th v. Knapp, 9 Pick. (Mass.) 4'JO ; Wil- bur v. Crane, 13 Id. 284; Lord v. Parker, 3 Allen (Mass.) 127; Schuyler Co. v. Mercer, 9 111. 20 ; Lock v Miller, 3 Stew. & P. (Ala.) 13; Gunterv. Leckey, 30 Ala. 591; Hollmauv. Bennett, 44 Miss. 323 ; Slat.' v. Norton, 23 N. J. L. 33 ; Esterley's A pp., 54 Pa. St. 192; Mullin v. McCreary, Id. 230; Hotaling v. Cronise, 2 Cal. 60; Sibley v. Smith, 2 Mich. 486; State v. Whetstone, 13 La. An. 376 ; Crowed v. Van Bebber, 18 Id. 637 ; Develly v. Develly, 46 Me. 377 ; Sullivan v. La Crosse, etc., Co., 10 Minn. 386; Warner v. Fowler, 8 Md. 25; Thistle v. Coal Co., 10 Id. 129 ; Stewart v. Stringer, 41 Mo. 400; llowey v. Miller, 67 N. C. 459; Bailey v. Bryan, 3 Jones L. (N. C.) 357; Young v. McKenzie, 3 Ga. 31 ; Hearn v. Ewin, 3 Cold. (Term.) 399. 89 See 1 Kent, Coram. 464, and Bish. Wr. L. § 155, where it is said that " statutes in derogation of the common law, or of a prior statute, are construed striotlv." 90 Sec post, § 329." 91 See Uewey v. Goodenough, 56 Barb. (X. Y.) 54. 92 Hanuon v. Madden, 10 Bush. (Ky.) 664. P 127] SCOI'K AND PURPOSE OF ACT. 175 was intended to furnish a system of practice and compact law, and, when in derogation of the common law, it was to be liberally construed to carry out the objeet of that sys- tem. 03 And so in some instances in which the statutes under construction were held remedial, e. g., statutes giving mechanics' liens; 94 statutes altering the legal status of mar- ried women ; 05 and in the case of a statute limiting the lia- bility of ship-owners in respect of any "goods or merchan- dise whatever," where that phrase was construed as includ- ing basrsrafire." Bat in general, the formula of the rule, at least, in the sense indicated, has been adhered to, if its application lias been somewhat relaxed. It is perhaps sig- nificant that in England, from whence this rule is professed to be derived, 07 it was said in a recent case, that the fact that a statute interferes with a man's common law rights is no reason why it should be construed differently from any other act of Parliament. 08 The " enthusiastic loyalty to a body of law, the most peculiar features of which the activity of the present generation has been largely occupied in uprooting and destroying," 89 would appear to have its prin- cipal professors in that portion of the world in which it is most out of place. It is submitted, that, as a rule of con- struction, in the sense above indicated, the formula referred to has no justification as applied to the existing common law, any more than as applied to the existing statute law. In nearly every instance in which it has been invoked to control the result with proper effect, the same end would have been reached by a little diligent search for, and dis- criminating application of, other rules of construction which will hereafter appear, and under which those cases will be 93 Kramer v. Rebman, 9 Iowa, are not included in "personal U4. goods," in a penal act. "Buchanan v. Smith, 43 Miss. 9T See Sedgw. p. 273. 90; Chapinv. Persse, etc., Works, 9S The Warkworth, L. R. 9 P. 30 Conn. 461 ; Oster v. Rabenean, Div. 01, affirmed in Court of 46 Mo. 595- Appeals, ll is also noticeable that »« Corn Exch. v. Babcock, 42 N. Judge Maxwell's learned work Y. 013 ; De Vries v. Conklin, 23 refers in no place to the doctrine Mich. 25."). thai statutes in derogation of the 8B Chamberlain v. West. Transp. common law are to be striclty Co.,44N. Y. 305. But see U. S. construed, as a rule of conslruc- v. Davis, 5 Mason, 350, that choses tion. in action, like bonds, bills, etc., 99 Sedgw. p. 273- 17G SCOPE AND PUBPOSE OF ACT. [§ 127 cited ; and in the remainder of the cases, signally those con- struing by the above formula statutes enfranchising married women, the result has been wrong, and has had to be set right by subsequent legislation. But, in so far as it recog- nizes the presumption against an intention to change the existing law, and to that extent only, the rule is accurate. [It is said by an eminent author: "With all the gross imperfection of the common law, it did contain certain grand principles, and these principles had been worked out into many practical rules bothof primary rights and of proced- ure, which protected personal rights, rights of property, of life, of liberty, of body and limb, against the encroachments both of government and of private individuals. This was the great glory of the common law. Any statutes which should take away, change or diminish these rights should be strictly construed. To this extent the rule is in the highest degree valuable, not because such statutes 'are in derogation of the common law,' but because they oppose the overwhelm- ing power of the government to the feeble power of resist- ance of the individual, and it is the duty of courts, under such circumstances, to guard the individual as far as is just and legal, or, in other words, to preserve the individual from having his personal rights taken away by any means that are not strictly legal." 100 All the matters here enumerated are covered by the rules forbidding, except in clear cases (and in such, it is conceded, even the formula " in deroga- tion," etc., would have to give way, 101 ) a construction which would create a new, or destroy an existing, jurisdiction or remedy, or give summary process, and the rule which requires a strict construction of statutes that restrict or encroach upon rights, impose burdens upon persons or property, or confer exemptions, privileges or powers. As to all other statutes changing, or departing from, the common law, the same rule applies as in the case of statutes changing a statutory rule, viz. : that the Legislature is not presumed to intend any alteration beyond the immediate objects and provisions of the enactment. 100 Sedgw. p. 271, note, Pom- 101 State v. Norton, 23 N. J. K. eroy. 33. § 128] SCOI'K ANI> PUKI'oSK OF AOT. ITT § 128. [To the class of statutes falling under this rule belong those changing the rules of evidence, or permitting persons to he witnesses in their own cases. 10 ' Thus, where an aet declared that no "interest or policy of law" should exclude a party or person from being a witness in any civil proceeding, it was held that a married woman was not there- by made a competent witness to bastardize her issue. 101 "When wc come to consider,'' said the court, "that the ' interest or policy of law' which the legislature had in view in passing that act, was that, which, before that time, excluded parties from testifying in their own suits, or where they had an interest in the subject matter in con- troversy, it becomes obvious that a case, such as the one under discussion (an appeal from the order of justices removing a pauper from one poor district to another) was not in the legislative mind when that act was passed. It. would, therefore, be an unnecessary and violent construction of the statute to make it include a ' policy of law ' wholly different from that under contemplation when it was framed." 104 Nor, as has been seen, could the act, which was an enlarging one, make any one incompetent who was com- petent before, 105 as little as the provision forbidding a woman to make a contract of suretyship, in a statute whose main purpose was to enlarge her powers over her property, could abridge her common law right to mortgage it for the debt of her husband. 108 On the other hand, where the purpose of a statute relating to the rights and powers of married women over their property was merely to protect the same against her husband's interference and creditors, it was held to be be- 3'ond its scope to confer upon her any power or capacity to contract which she did not possess before, or which was net expressly or by necessary inference given her in the act ; 10 ' and this although the act was recognized to be an enlarging and enabling one, to be administered in the spirit of the 102 See "Warner v. Fowler, 8 Md. 104 Ibid., at p. 437. 25; Thisile v. Coal Co., 10 Id. 1M See ante, § 124. 129 : Hotaling v. Cronise, 2 Cal. 106 See ibid. 60. 107 Moore v. Cornell, 63 Pa. St. 103 Tioija Co. v. South Creek Tp., 320. 75 Pa. St. -133. 12 17S SCOPE AND PURPOSE OF ACT. [§ 129 rights enlarged by it.' 08 ] And so, too, where the effect of such a statute was simply to assimilate whatever property might accrue to a married woman to an equitable estate ttled to her use, it was held that it gave no legal validity to any contracts except such as, under a chancery jurisdiction, would have; had equitable validity; and hence as a matter of course, that it was beyond its scope to confer upon married women who possessed no property a right to make contracts which they could not have had before. 109 [Other statutes belonging to this class are such as allow a judgment debtor to pay his debt to the sheriff in discharge thereof ; 110 changing the commercial law," 1 and the like.] § 129. Intent as an Element of Crime.— Oil this general princi- -ole of construction, [that the operation of an act, though -couched in general language, is not to be extended beyond the immediate purpose it is designed to serve or accomplish, because it is not to presume that the law is designed to be changed further than is necessary therefor,] a statute which made in unqualified terms an act criminal or penal, would be understood as not applying where the act was excusable or justifiable on grounds generally recognised bylaw. [Where the language of the enactment indicates its applicability only in the ease «i!' an absence of excuse, there can be no difficulty io3 Bergcy's App., 60 Pa. St. 408, 30 (Hi. D. 109. See to similar 418. effect, under an act making ajudg- 109 Eckert v. Renter, 33 N. J. L. ment obtained against a married 263; Vankirk v. Skillman, 34 Id. woman recoverable only out of her 10!) ; Lewis v. Perkins. ;50 Id. 133; separate estate, Offutt v. Dangler. Wilson v. Herbert, 41 Id. 454; (D. C.) 5 Centr. Rep. 430; and see Mather v. Brokaw, 43 Id. 587 ; Leinbach v. Templin, 105 Pa. St. Heywood v. Shreeve, 44 Id. 94 ; 522; Spering v. Laughlin, 113 Id. Morris v. Lindsley, 45 Id. 435 ; 209. Put comp. Frecking v. Roll- Bradley v. Johnson, Id. 487; 40 Id. and, 5:5 N. Y. 422; Ackley v. Wes- 27; Condon v. Parr (N. J.) 5 tervelt, 80 Id. 448; Tiemeyer v. Centr. Rep. 556. Under the Eng- Turnquist, 85 Id. 516; Adams v. lish Married Women's Property Act Curtis, 4 Lans. (N. Y r .) 104; Speck of 1882; 45 & 46 Vict. c. 75, s. 1. v. Gurnee, 25 Hun (N. Y.) 644; sub. s. 2, permitting a married ('ashman v. Henry, 75 N. Y. 103; woman to bind herself by her con- Cramer v. Hanaford, 53 Wis. 85; icts •' in respect of and to the ex- Tallman v. Jones, 13 Kan. 438, tent of her separate property " it is and also Zurn v. Noedel, 113 Pa. held thai her ownership of separate St. 336. property at the time of making the uo llowey v. Miller, 67 N. C. contract is essential to its validity 459. is against her: Palliser v. Gurney, '" Crowell v. Van Bebber, 18 L. R. 19 Q. B. D. 519. And see La. An. 637. In re Shakespear, Deakin v. Lakin, 8 129] SCOPE AND PURPOSE OF ACT. IT' 1 id limiting its scope and consequent operation to snch instances. Thus it has been held, that, to "suffer" a ram to go at large, or oul of the owner's enclosure, implies con- sent or willingness on the hitter's part j" 2 and that a penalty imposed for " suffering" hogs to run at large is incurred only where they are voluntarily suffered so to do, and not where they escape from the owner without his default."' But in the absence of such an indication,] a statute which imposed three months' imprisonment and the forfeiture of wages on a servant who " absented himself from his service" before his term of service was completed, would necessarily be understood as confined to cases where there was no lawful excuse for the absence (a). A Statute which made it felony " to break from prison," would not apply to a prisoner who broke out from the prison on fire, not to recover his liberty, but to save his life (b) : and one which declared it piracy to " make a revolt in a ship," would not include a revolt necessary to restrain the master from unlawfully killing persons on board (c), even if it could be justly called a revolt. And a seaman would not be guilty of " deserting,'' who was driven by the cruelty of his officers to leave his ship (d). The sheriff who arrests under a warrant the driver of the mails, is not indictable for knowingly and willfully obstruct- ing and retarding the mail (e). \ And, where a statute gave treble damages against any person who should commit waste ■on land, pending a suit for its recovery, it was held that the act did not apply to a party wholly ignorant of the fact that a suit was pending, on the ground that the statute should be •limited to the object the Legislature had in view. 114 Simi- larly, statutes giving punitive, double or treble, damages 1,2 Selleck v. Selleck, 19 Conn. Steed v. McRae, 1 Dev. & B., L. 501. And see Hall v. Adams, 1 (N. C.) 435.] Aik. (Vt.) 166 ; 2 Id. 130. (6) 2 Inst. 590. liS Com'th v. Fourteen Hogs, 10 (c) 11 & 12 Wm. 3, c. 7, s. 9 ; R. Senr. & U. (Pa.) 393. v. Rose, 2 Cox, 329; The Shep- (e punishable under Statutes which prohibited such acts in general terms ; though it turned out that his title was bad and the property was not his (b). [So, an entry on the land of another, under a bona fide claim of right, e. g., by an em- ploye of a railroad company, ordered to fell trees on land conveyed to the company, adjacent to its track, was held not to be a criminal offense under the laws of North Carolina. 121 ] If one demanded goods with threats, bona fide believing that they belonged to him, he would not be guilty of robbery, though civilly liable (c). [So, when a party bought cotton of a firm, which was stored in certain houses, and, in removing it, carried off cotton belonging to the firm in an- other house, openly, and under a claim of right, as a party of the trade, such taking was held not to be a felony. 1 "] If one forcibly took a girl under sixteen from the custody of her guardian in the honest but mistaken belief that he was, himself, invested with that character, and acted simply in the exercise of his right as guardian, he would not be guilty of the criminal offence of abduction, though that is defined 119 Wenz v. State, 1 Tex. App. m State v. Crosset, 81 N. C. 579, 36. But as to mere belief, after warn- m People v. Walker, 38 Mich. ing, sec State v. Bryson, Id. 595. 156. See also, Hopt v. Hopt, 104 (c) R. v. Hale. 3 C. & P. 409. U. S. 631 ; Mevling v. Coin'tb, 98 See also and comp. li. v. Crid- Pa. St. 322 ; Smith v. Wilcox, 47 land, 7 E. & B. 853, ^T L. J. M. C. Vt. 537. 287, and Morden v. Porter, 7 (a) See ex. gr. Lee v.- Simpson, C.B. N.S. OH ; 29 L.J. M.C. 213. 3 C. 15. 871. '•' Newton Manuf'g Co. v. (b) It. v Burnaby, 2 Lord Raym. While, ti:; Ga. 097. 900. 182 SCOPE AM) PURPOSE OF ACT. [§132 as "unlawfully taking a girl under sixteen out of the pos- session and against the will of the person having the law- ful care of her'' (a). A man who fished in a tidal river, in the assertion of the general right which the law gives to fish in such rivers (/>), and in ignorance or in contestation of the exclusive riffht of iishin!) Sec R. v. Speed, 1 Lord {b) Carter v. Murcot, 4 Burr. Raym. 583 ; R. v. Burnaby, 2 Id. 2103. Willi ; Legg v. Pardoe, 9 C. B. N. (c) R. v. Stimpson, 4 B. c^ S. S. 289 ; Burton v. R., 2 Moo. P. C. 801, 32 L. J. 2U8. See supra, § 19. Jl!». (e) Heane v. Garton, 2 E. & E. 183 S Sue § 129. 66. §132] SCUPK AND PURP08I OF ACT. 183 9 & 10 Win. 3, c. 14, which after reciting that convictions for embezzling government stores were found impractic- able, because direct proof of the immediate taking could rarely be made, but only that the goods were found in the possession of the accused, and that they bore the king's mark, enacted that the person in whose possession goods so marked should be found, should forfeit the goods and 200/., unless he produced at the trial an official certificate of the occasion of their coming into his possession, it was held by the Court for Crown cases reserved, that such a person was not liable to conviction, in the absence of proof that he knew (though he had reasonable means of knowing,) that the goods bore the government mark (a). [So, where a statute subjected the master of a steamboat to a penalty tor failing to deliver any letter that he should have " in his care or within his power," it was held that there must, in order to guilt, be knowledge on his part, and that the mere posses^ sion of the letter by the clerk of his boat was not enough. 121 ] (a) R. v. Sleep, 1 L. & C. 44 ; 30 L. .). M. C. 170 ; R. v. "Wilmett, 3 Cox, 281 ; It. v. Cohen, 8 Cox, 41. This decision, however, might be questioned, on the authority of another case, which was not cited, where the Court of Exchequer held that a dealer in tobacco was liable to the penalty imposed by the Statute for having adulterated to- bacco in his possession, though ignorant of the adulteration. (5 & G Vict. c. 93 ; R. v. Woodrow, 15 M. & W. -h)4. See also per Parke, B.. inBurnby v. Bollett, 16 M. & W. G44 ; R. v. Trew, 2 East, P. C. 821 ; R. v. Dixon, 3 M. & S. 11, 4 Camp. 12.) It may he doubted whether the literal construction of the language, en forcing vigilance for the protection of the public from danger or robbery, by visiting negligence (comp. R. v. Stephens" and It. v. Walter, cited infra, § 135) as well as misdeed with penal conse- quences, would not have been more in harmony with the intention, and have more completely promoted the object of the Legislature. See Aberdare v. Ilammett, L. R. 10 Q. B. 102 ; also a case reported only in the Law Times, where a person *' found in possession of the young of salmon." in contravention of the Salmon Fisheries Act, 24 ) Hudson v. McRae, 4 B. & S. 188 People v. Norton, 7 Barb. (N. 585, 33 L. J. M. C 65; Leath v. Y.) 477 ; and see People v. Bogart, Vine, 30 L. J. M. C. -JOT; liar 3 Park. Cr. (N. Y.) 153; 3 Abb. greaves v. Didiams. L. It. 10 Q. Pr. 193 ; U. S. v. Adams, 2 Dak. B. 582 ; Wat kins v. Major, L. It., 305. IOC. P. 00-2. Sec also The Char- 121 U. S. v. Leathers, 6 Sawyer, lotta, 1 Dods. 887. 17; and see Smith v. Brown, 1 (c) 4 Geo. 4, c. 34, s. 3; Cooper Wend. (N. Y.) 231. That a man, v. Simmons, T II. & N. TUT, 31 L. at least in a civil matter, need not J. M. C. 138, overruling Rider v. know the law of his State better Wood, 29 L. J. M. C. 1. See also than its Supreme Court, see Geddes Willed v. Boote, 6 II. & N", 2(5, 30 v. Brown, 5 Phila. (Pa.) 180, ante, L. J. M. C. 6 ; and Youle v. Map- .§ 1, note 1. Comp. post, § 13G : pin, 30 L. J. M. C. 234, II. & N". 753. 186 S< OPE AM" I'l KPOSE OF A.< 1. [§ 135 unfounded, that there existed a legal right to place his vehicle there (a). §135. Liability of Master for Servant's Act.— Tlie principle that mens rea is essential to criminality is subject, in some classes of misdemeanors, and especially in cases of libel and nuisance, to the more general one which makes ;i master responsible for the wrongful act or default of his servant in the course and within the scope of his employment, when the servant is not forced upon him by law, and the work on which he is employed is for the employer's private advantage or profit, and not in the discharge of a public duty (b). [Thus, where liquor was sold, or a gaming table kept, in vio- lation of law, by an agent, the employer was held liable to the penalty. 128 ] In such cases, the act of the servant, though not in obedience, and even contrary to his master's orders, is } r et taken to be the act of the master, and the latter has in some of such cases been held penally responsible for it, though personally ignorant of its committal. Thus, a baker has been held liable to a penalty for selling bread in which his servant had, without his knowledge, mixed alum (c). The owner of works carried on by his agents and workmen for his profit, was held indictable for a nuisance committed by them in the course and within the scope of their employ- ment, although they had, in committing it, acted against his orders (V). So, newspaper proprietors have been repeatedly held indictable and punishable by fine and imprisonment for a libel of which they had no knowledge, inserted by their editor and sold by their publisher in their paper (e). It has (a) Foulger v. Sleadman, L. R. 8 See Parsons v. St. Matthews, I>. R. Q. B. 65. Comp. Jones v, Taylor, 3 C. P. 58 ; Wilson v. Halifax, L. 1E.&E. 20. i;. 3 Ex. 114; Mullins v. Collins, (b) See l he cases collected in L. R. 9 Q. B. 292. [But see Noll Holliday v. St. Leonard. 11 ('. 15. v. State. 34 Ala. 262 ; Mitchell v. N. S. 192, 30 L. J. 361; Hartnall v. Minis, s Tex. 6 ; Stale v. Bacon, Ryde Commissioners, | 15. & S. 40 Vt. 456, to the effect that a 361, :!"> Ij. .1. :!!» ; Ohvby v. Id., 5 principal is not liable for the act B. A: S. 743, 33 L. J. 296 ; Coe v. of his agent without his express Wise, 5 B. & S. 440, 3:5 L. -I. 281 ; authority.] Tobin v. He- :;:; 1,. .1. 199, 204, 16 (~. director, who, at the same time, f/,) Thames Haven Co. v. Rose, was the president of a company 4 M. & Gr. 552. which had borrowed money from 188 O'Hare v. Bank, 77 Pa. St. the bank, and who, for this debt, 96, 103. Compare Perm v. Born- gave the bank bis draft upon the man, 102 III. 523, where, Dickey, treasurer of bis company, incurred Craig and Sheldon, JJ. , dissenting, no liability by the same. Corn- it was held, that, under a bank pare post, § 268. charter forbidding a director to § 137] SCOI'K AND PURPOSE OF ACT. l'.'l shares (a); but not to create any duty towards bondholders (h). [A familiar instance of this species of construction is that which has been applied to statutes relating to usury and declaring usurious contracts void, either entirely <>r to the extent of the excess over legal interest. In many instances, these statutes have been regarded as giving a defence only to the borrower, a defense personal to himself and his pri- vies, among which have been variously included sureties, 1 " accommodation indorsers, 135 representatives, heirs and the like ; 138 in others it has been held, that, where the contract would be void as to him, it would be good as againsl a third party, e. ~>o ; Reed v. Eastman, 50 Id. 07 ; New- bury B'k v. Sinclair, 60 N. II. 100; Bensley v. Homier, 42 Wis. 031 ; Ready v. Huebuer, 46 Id. 692; Draper v. Emerson, 22 Id. 1 -17 ; Lazear v. Bank, 52 Md. 78; (but see Thorn v. Doub, 8 Gill & J. (Md.) 1 ;) Ransom v. Hays, 39 Mo. 445; Cramer v. Lepper, 2(3 Ohio St. 59; Smith v. Bank, Id. 141 ; Stephen v. Muir, 8 Ind. 352 ; Con- well v. Pumphrcy, 9 Id. 135; Wright v. Bundy, 11 Id. 398; Stein v. Indianapolis, etc., Ass'n, Is Id. 237 ; Stockton v. Coleman, 39 Id. 107 ; Studabaker v. Marquardt, 55 Id. 341 (but see Cole v. Bansemer, 26 Id. 94) ; Campbell v. Johnston, 4 Dana (Ky.) 177 ; Pritchett v. Mitchell, 17 Kan. 355 ; Pickett v. Bank, 32 Ark. 846 ; Speugler v. Snapp, 5 Leiijh (Va.) 478 ; Lea v. Feamster, 2f W. Va. 108. But see contra: McAlister v. Jerman, 32 Miss. 142 (comp. Dennistown v. Potts, 26 Id. 13); Cummins v. Wire, 6 N. J. Eq. 73 (comp. Dolman v. Cook, 14 Id. 56 ; Conover v. llobart, 24 Id. 120) ; Green v. Tyler, 39 Pa. St. 361 ; Link v. Assoc'n, 89 Id. 15 ; Schutt v. Evans, 109 Id. 625 (accomm. endor- ser) ; Nisbett v. Walker, 4 Ga. 221. 102 EVASION. j ; l^S to an usurious mortgage, except as to illegal interest, which was to be deducted ; 137 and in others, again, it has been decided that the defense could not be set np against a bona fide holder of the debt without notice of 'the usury; 138 and again, that the lender eannol avoid his contract on the ground of usury. 130 So, a bond given by wav of margin, to secure the settlement of differences in a stock gambling transaction, may be void as between the original parties, but valid in the hands of an innocent assignee for value. 110 And even as between the original parties, if one of them intended a bona fide purchase or sale, the contract will be good as to him and enforceable by him, unaffected by the secret cor- rupt intent of the other. 141 ] § 138. Presumption against Permitting Evasion. — It is the duty of the judge to make such construction as shall suppress all evasions for the continuance of the mischief (a). To carry out effectually the object of a statute, it must be so construed as to defeat all attempts to do or avoid in an indirect or circuitous manner that which it has prohibited or enjoined (&). In fraudem legis facit, qui, salvis verbis legis, sententiam ejus circumvenit (c); and a statute is understood as extend- ing to all such circumventions, and rendering them unavail- ing. Quando aliquid prohibetur, prohibetur et omne per 137 See Ladd v. Wiggin, 35 N. II. crtson, 12 Cush. (Mass.) 156 (comp. 421. .act 1803, ch. 242); True v. Triple! t, 138 See Jackson v. Bowen. 7 Cow. 4 Mete. (Ky.) 57 ; and see McCul- (N. Y.) 13; Powell v. Waters, 8 lough v. Mitchell, 04 Ala. 250; Id. 669 ; Kent v. Walton, 7 Wend. Bank of Washington v. Arthur, 3 (N. Y.) 256 ; Hackley v. Sprague, Graft. (Va.) 173. 10 Id. 113; Smedburg v. Simpson, 139 Elwell v. Chamberlain, 4 2 Sandf. (N. Y.) 85 (but see Hall Bnsw. (N. Y.) 320; Gloversville v. Ernest, 3(3 Barb. 585) ; Smaller B'k v. Peace, 15 Hun (N. Y.) 504 ; v. Doughty, 6 Bnsw. (N. Y.) 60 ; Riley v. Gregg, 10 Wis. 666. Conkling v. Underbill, 4 111. 388 ; 140 See Griffiths v. Sears, 112 Pa. Freeman v. Brittin, 17 N. J. Eq. St. 523. But see Timer v. Boas, 191 ; Creed v. Stevens. 4 Whart. 13 Id. 600; Teuuey v. Foote, 4 111. (Pa.) 223 ; Clapp v. Hanson, 15 App. 594. Me. 345; Thoniasson B'k v. Stimp- 141 Williams v. Tiedeman, 6 Mo. son, 21 Id. 195 : Forbes v. Marsh, App. 269. See, to similar clTect, 3 N. II. 119; Gross v. Funk, 20 Wall v. Schneider, 59 Wis. 352; Kan. 655; Partridge v. Williams, and compare Bartlett v. Smith, 4 72Ga. 807 (note assigned as coll. McCrary, 388. security) ; and see Mitchell v. (It)N\ [§139 of the wager;" 4 an agreement between two persons, by which one was to sell and the other to buy a lot of hogs at a certain sum per pound, payable upon the happening of the •contingency; 146 a policy of insurance taken upon the life of another by one who lias no insurable interest in the insured j 149 a contract to deliver goods or stocks at a future day, the real intent of which is not to deliver the goods or stocks at all, but to speculate in the rise and fall of their prices, the one party to pay to the other the difference between the contract price and the market price upon the date fixed for the exe- cution of the contract. 147 ] § 139. An Act which prohibited under a penalty the per- formance of plays without license, would extend to a per- formance where the actors did not come on the stage, but acted m a chamber below it, and their figures were reflected by mirrors so as to appear to the spectators to be on the stage (a). Lord Campbell's Act, which requires, under cer- tain circumstances, the insertion of a full apology in a news- paper, for a libel, would not be complied with, if the apol- ogy, however suitable in its terms, was printed in such type 144 Guyman v. Burliugame, 36 111. 201 ; Sipe v. Fin arty, 6 Iowa, 394; Given v. Rogers, It Ala. 543; Nuclei v. Barnett, 14 Ind. 25. 145 Lucas v. Harper, 24 Ohio St. qno 14 ' 6 Warnock v. Davis, 104 U. S. 775 ; Gilbert v. Moose, 104 Pa. St. 74; and see Blattenberger v. llol- man, 103 Id. 555, as to the assignee of such with knowledge of the fraud. i« Irwin v. Williar, 110 U. S. 499; llentz v. Jewell, 4 Woods, 656; Kirkpatrick v. Adams, 20 Fed. liep. 287 (cotton futures); Bartlett v. Smith, 4 McCrary, 388 (wheat); Story v. Solomon, 71 N. Y. 420; Kingsbury v. Kirwan. 77 Id. 612; Yerkes v. Solomon, 18 N. Y. Supr. Ct. 471; Beveridge v. Hewitt, 8 111. App. 467; Pickering v. Cease, 79 111. 328 ; North v. Phillips, 89 Pa.St. 250; Griffiths v. Sears, 112 Id. 52:! ; Rumsey v. Berry, 65 Me. 570; Barnard v. Backhaus, 52 Wis. 593 (grain); Waterman v. Buckland, 1 Mo. App. 45; Williams v. Tiedemun, 6 Id. 269. But the mere fact that goods or stocks are sold to be deliv- ered at a future date, winch are not, at the time of the making of thecon- tract, in possession of the seller, docs not make the transaction a wager, if there is an honest inten- tion to deliver : Bartlett v. Smith, 4 McCrary, 388; Cole v. Milmine, 88 111. 349; Maxton v. Gheen, 75 Pa. St. 166; and see Gilbert v. Gaugar, 8 Biss..214 ; Barnard v. Backhaus, 52 Wis. 593. And an agreement to share the profits and losses upon the sale of stocks owned by one of the parties thereto and bought by him through a broker on margin, is not a wager contract, nor illegal stockjobbing: Bu'.lard v. Smith, 139 Mass. 492; a contract to deal in stocks on margin not being illegal, if the stocks are actually purchased and the contract is not one merely for the payment of dif- ferences : Hatch v. Douglas, 48 Conn. 116. ' (a)Q& 7 Vict. c. 68, s. 2; Day v. Simpson, 18 C. B. N. S. 680, 34 L. J. M. C. 149. § 139] evasion. 195 or in such a part of the paper as would be likely to escape the attention of ordinary readers (« Rhoads' App., 101 Pa. St. (c) Pickard v. Marriage, 1 Ex. 284. Whether such notice may be D. 304 ; Exp. Lewis. L. 11. G Cli. published in a weekly religious 626. Sec another example in Stal- paper, was nol decided. lard v. Marks, 3 Q. B. 1). 412. 0)17 & 18 Vict. c. 36; Exp. >«» Cooley v. Barcroft, 43 X.J. Mackay, L. 11. 8 Ch. 643; Edwards L. 363. v. Edwards, 2 Ch. D. 291; Branton 15 ° Vinoedge v. Shaffer, 35 Ind. v. G-riffets, 2 C. P. 1>. 212 ; Exp. 341; even where (here are no chil- Odell, 10 Ch. D.76; but comp. dren:Ib. Allsopp v. Day, 7 H. & X. 457; l " Milwee v. Milwee, 44 Ark. Byerley v. Prevost, L. li. G C. P. 112; Felkner v. Tighe, 39 Id. 357. 196 EVASION. [§ 140 t lie value, equally requires a license." 1 An agent selling tickets at a picnic, for which beer is furnished on presenta- tion, may be convicted of selling liquor without license. 168 An instrument wherebv one gave to another an irrevocable power of attorney, with the right to substitute other attor- neys, to sell land to be granted to the maker as a colonist, to a certain person or to any one the latter slaould name, was held to be a contract to sell the land before issuance of title and void. 164 And a corporation whose charter did not allow it to sell coal, but which owned large quantities of coal land which it leased to others to be worked, was held to be within an act imposing certain taxes upon corporations pos- sessing the right to mine or purchase and sell coal. 165 An act authorizing the issue of municipal bonds " at not less than par," but allowing councils to pay a reasonable compen- sation for the sale or negotiation of the bonds would not warrant the allowance of a commission to a purchaser of the bonds from the city at par ; for that would be a sale at less than par. 166 ] § 140. The Mortmain Act of Geo. 2, which prohibits the disposition to a charity, of land, or money to be laid out in the purchase of land, otherwise than by deed executed twelve months before the donor's death, to be enrolled within six months from its execution and to take effect immediately, and without power of revocation or any reservation for the benefit of the donor, has frequently been the subject of such experiments. Thus, a bequest of money to the com- mittee of a school, on condition that they would provide land for a charitable purpose, would fall within the Act; for such a transaction differs but in name from a purchase of the land and a devise of it (a). The testator did not, indeed, directly devise the land ; but he gave money in considera- tion of land being given to a charity, which was substan- tially the same tiling. So, if money were bequeathed to be " s Com'tb v. Harris, 8 B. Mori. ,56 Whelen's App., 108 Pa. St. (Ky.)878. 1G2. 168 Oom'lta v. Heffner, 8 Leg. (a) Attv.-Genl. v. Davics, 9 Ves. Gaz. (Pa.) 166. 535; and sec the judgment of Lord 164 Cooke v. Lindsay, 57 Tex. 67. Cranworth in Piiilpott v. St.. 165 Big Black Creek, etc., Co. v. George's Hospital, 6 H. L. 349. Com'tlC'.il Pa. St. 450. § 140] EVASION. 197 laid out in building houses, where there was no land already in mortmain (a) to build them on, such a bequest would be construed as an indirect instruction to purchase laud for the purpose (/>). Where the owner of land, with the object of evading the statutes, executed a deed, which be kept con- cealed till his death, whereby he covenanted that he or his executors would pay to certain trustees for certain charitable purposes, a large sum of money, which would necessarily have to be raised out of his land, this was held to fall within the prohibition of the statute. The creation of a fictitious debt on which execution might issue, and the land be taken, was but an indirect mode of making a gift of the land (c). [Under an act imposing collateral inheritance tax on "estates by will . . . or . . . transferred by deed, grant, bargain orsale made or intended to take effect in possession or enjoyment after the deatli of the grantors," and requiring the executors to pay it, a person will not be permitted to evade the impo- sition by a conveyance of his estate during his life-time,. even where possession is taken by the grantee before the gran- tor's death, if the enjoyment of the property conveyed is not intended to take effect until after his death. 1 " And, where a decedent, during his life-time had assigned certain stock to a trustee, in trust that he would pay the assignor the income for life and, after his death, certain sums and annuities to persons named in the declaration of trust, if they survived, and the remainder to purposes to be declared in his will, reserving the right to revoke all the trusts declared, it was, after his death without such revocation, held that the sum assigned was subject to collateral inheri- tance tax, and that the executors were the persons from whom it was to be demanded. 16s Under an ordinance prohibiting persons from "erecting" or "building" wooden houses, etc., the elevation or enlargement of a wooden building, so (a) Comp. Brodie v. Cbandos, 1 337, 47 L. J. 863 ; eomp. Re Rob- Bro. C. ('. -tin; and Pritchard v. son. 19 CI). D. r>) A 1 1 v. -Gen I. v.Tyndnll, Ambl. 531. 614; Mather v. Scott, 3 Keen, 172; 15S Wright's App., 38 Pa. St. Gibletl v. Elobson, :'. M. & K. ~,\;. 507. And see Trilt v. Crotzer, 13 (c) Jeffries v. Alexander, 8 II. Id. 451. But see, under the act 33 L. 594, 31 L. .1. Ch. 9; and per & 33 Vict. c. 71, a. 87, post, § 144. 'Cur. in Attrce v. I lame, 9 Ch. D. 198 i.vasion. [§ 1-H as materially to alter its character, was held to be punish- able. ,M ] § 141. So, a settlement, under the Poor law, by renting a tenement, was not obtained where the renting was color- able or fraudulent {a). It has been held that where a woman pregnant with an illegitimate child was fraudulently removed by the officers of the parish in which she was settled (0) to another parish, the child's settlement was not the parish where it was born, but that in which it would, but for the fraudulent removal, have been born (c). Indeed, it has been held that where an unmarried woman was removed to a parish by order of justices, and gave birth to a child there, and the order was quashed on appeal, the child was to be regarded as born in the parish where he ought to have been, and not where he actually was born (d). Where a woman, after failing to obtain a bastardy order where she resided, removed to a neighboring borough for the avowed purpose of trying to get the order there ; it was held that the justices of the borough had no jurisdiction to make it, under the Act which gives such authority to justices of the place where the woman " resides" (e). It would have been different if she had not removed for the sole object of getting into another jurisdiction {/). 159 Douglass v. Com'th, 2 Rawle a clause in the act permitting (Pa.) 262. But see Booth v. State, wooden dwelling houses to be 4 Conn. 65, where repairing and raised under certain circumstances. changing into a dwelling a build- (a) R. v. Woodland, 1 T. R. 261; ing originally erected for'a meeting R. v. Tillingliam, 1 B. & Ad. ISO; bouse and subsequently used as a R. v. St. Sepulchre, Id. 934. joiner's shop was held not to be an (b) See R. v. Astley, 4 Doug. erection prohibited by statute; also, 389. Tuttle v. State, I'd. 68, as to (c) Masters v. Child, 3 Salk. 66 ; removal, repair and addition ; Tewkesbury v. Twyning, 2 Bott. Daggett v. Stale. Id. 61, as to 3 ; coinp. R. v. Mattersey, 4 B. reconstruct the road, hut only the j c ] -jig line can he inflicted : lb. 200 evasion. [§§ 143, 1-44 annual payment of a tax upon " any dividend declared," etc., contemplated that the tax should be based upon the aggregate of dividends declared in any one year, and not upon any single dividend. ,oa § 143. [It has been held, that,] where the payment of rates is made a matter of personal qualification, the Act would not be complied with if they were paid by another person on behalf of him who claims the qualification (a). [But, where the agency of the person who pays the tax, the payment of which by one is a prerequisite to qualify him as a voter, is recognized by the latter, he acquires the same right as if payment were made With his own hand. 161 xYnd consequently, if such payment by another is subsequently ratified by the person for whom it is made, though, at the time, without his knowledge, it will be sufficient to confer upon him the right to vote. 104 Accordingly, it has been held in Pennsylvania, that the requirement of payment of taxes thirty days before the election, as a qualification for the right of voting, is satisfied by a payment thereof by another person, if appropriated, at the time of payment to the credit of the particular person by name, on whose account it is paid ; 18B and the voter is not obliged to show that he assumed and acknowledged the payment by the agent, before the expiration of the time limited for payment of the tax. 106 ] § 144. Limits of the Rule.— It is, however, essential not to confound what is actually or virtually prohibited or enjoined 162 Philadelphia v. Pass. Ry. Co., Lane. B. 61. 102 Pa. St. 190. 166 Contested Elect. Dauphin Co., (a) R. v. Bridgnorth, 10 A. & supra. But where a constitutional E. 66 ; Durant v. Withers, L. R. !) provision required, that, in order C. P. 257. But comp. R. v. to be entitled to vote, a person Bridgewatcr, 3 T. R. 550 ; R. v. must have, within two years, Weoblcy, 2 East. (IS; Hughes v. paid a state or country tax, which Chatham, 5 M. & Gr. 54 ; R. v. S. had been assessed at least six Kilvington. 5 Q. B. 216. See months before the election, it was Chinnery v. Evans, 1111. L. 115, held that the assessment must have and Harlock v. Ashberry, 19 Ch. been upon him individually, and D. 539 ; 51 L. J. 894. that the payment by him of a tax, 163 Humphrey v. Kingman. 5 not assessed against, him until the Met. (Mass.) 162. day before the election, but laid 164 Contested Election Dauphin upon the county more than six Co., 1! Pliila (Pa.) 645. months before, was not sufficient: »' 5 lbid.; Gillin v. Armstrong. Catlin v. Smith, 2 Serg. & R. 35 Leu. In. 282; Exp. Griffiths, 1 (Pa.) 2G7: and see Thompson v. Kulp, 157; Glazier v. Merri niter, 12 Ewing, 1 Brews. (Pa.) 102. 8 114] EVASION. 201 by the language, with what ia really beyond the contempla- tion, though it may be within the policy, of the A<-t ; for it is only to the former case that the principle under consider- ation applies, and not to cases where, liowever manifest the object of the AcC may be, the language is not co-extensive willi it (a). An Act of Parliament is always subject to evasion in this MMise ; for there is in; obligation not to do what the Legislature has not really prohibited. Thus, a hiring for a few days less than a year, though avowedly for the purpose of preventing the servant from acquiring a settlement, was not regarded as any evasion of the Act, which gave a settle- ment on a year's service (//). Where a testator after devis- ing a piece of land in a certain hamlet in fee simple, directed that if any person should, within twelve months after the testator's decease, at his or her own expense, purchase and give a suitable piece of land for almshouses, the trustees of the will should pay a sum of money to the charity so in- stituted, but so that no part should be laid out in the purchase •of land, it was held that the bequest was valid, and did not fall within the Mortmain Act (c). And again, where a tes- tator devised land to two persons absolutely, and signed an unattested paper expressing a desire, with which they were, unacquainted until after his death, that it should be applied to charitable purposes, it was held that the devise was valid, and did not fall within the Mortmain Act; for there was no binding trust for charitable purposes (d). It is not evading an Act to keep outside of it (e). Although, for instance, a beershop-keeper who is licensed to sell beer only to be drunk off the premises, evades the Act if he sells beer to be drunk on a bench which he provides lor his customers close to his shop; the intention making it, substantially and in effect, a sale for consumption on the (a) See ex. gr. Etherington v. Edwards v. Hall, 6 De G., M. & G. Wilson, 1 Ch. D. 161 ;and Pender 81, So I,. -T. 89 v Lnshington, G Ch. 1). 70, 4G L. ( I AB1 I OF POWER. 207 § 149. Discretion to be Exercised in Individual Cases — Where the discretion has been settled by practice, this Bhould not be departed from without strong reason (a). [Hence, although a statute left it to the discretion of the courl whether or not to admit an alteration of the pleadings, it was held, that, a defendant having passed over his time for putting in a plea of plaintiff's coverture pending the action (a matter which should, according to established rule practice, be pleaded puis darrein continuance.) the court prop erly rejected a motion for permission to make the plea dur- ing trial. 188 And upon similar grounds an application for the amendment of a declaration in assumpsit for goods sold and delivered, by the addition of counts for money lent and work and labor done, was denied, whilst the addition of counts for money had and received and upon an account stated was allowed. 183 ] But if a statute confers a power, with the intention that its exercise shall be subject to the discre- tion in every particular case, an exercise of it in the fetters of self-imposed rules, purporting to bind in all cases, would not be within the Act. Thus, where an Act gave the Court of Quarter Sessions power, if it thought fit, to give costs in every poor law appeal, it would be bound to exercise a fair and honest discretion in each case, and would not be entitled to govern itself by a general resolution, or rule of practice. to give nominal costs in all cases (b) ; for this would be in effect to repeal the provision of the Act. So, a licensing Act, which empowered justices to grant licenses to innkeep- ers and others, to sell liquors, as in the exercise of their dis- cretion they deemed proper, would not justify a general resolution to refuse licenses to all persons who did not con- sent to take out an excise license for the sale of spirits, in addition to the license for the sale of beer (c). [This snl>- Police, 142 Mass. 90 ; and see An- ,83 Triebel v. Deysher, 2 Woodw. drew. v. Kin-, 77 Me. 224. Ante. (Pa.) 15. ^ 51. Compr Eckloff v. Distr. of (b) R. v. Merioneth, G Q. B. 16:1; Columbia, 4 Mackey (D. C.) 572. R. v. Glamorganshire, 1 L. M. & la) 2 Inst. -.".is. Sec 11. v. Chap- P. 336; comp. Freeman v. Read, 9 man, 8 C. & P. 558. [Sec also C. B. N. S. 301, 30 L. J. M. C. Be Report of Co. Auditors, 1 123. Woodw. (Pa.) 270.] (e) R. v. Sylvester, 2 B. & S. "» Wilson v. Hamilton, 4 Serg. 322, 31 L. J. M. C. 93; R. v. Wai- & R (Pa.) 238. sail, 3 Com. L. R. 100. 208 ABUSE OF POWER. [§ 149 ject lias received elaborate examination at the hands of the Supreme Court of Pennsylvania, in a case decided in 1872. It arose under an act conferring upon the board of licensers of the city of Eric " the same power and authority to grant licenses in the said city of Erie as the court of Quarter Ses- sions now has." The various acts under which that court exercised its jurisdiction in the granting of licenses required that the court should grant no license when the public house for which it was asked was unnecessary or insufficient in the point of accommodation, or where the person by whom it was sought for was unfit, and directed that it should be law- ful for the court to hear petitions, in addition to that of the applicant, for, and remonstrances against the application, and in all cases to refuse the same, whenever, in its opinion, having due regard to the number and character of the peti- tioners for and against the application, such license was not necessary for the accommodation of the public, etc., and r upon sufficient cause shown, to revoke any license granted. "No subject," says the Court, "has been productive of more difference of opinion and practice than this, in the different judicial districts of the state ; some judges holding it to be obligatory on the court to grant every license where the applicant has brought himself within the provisions of the law as to the terms of his application, and others hold- ing that they are not bound to grant any license whatever. Clearly neither opinion is right; the discretion which the court exercises being a sound discretion upon the circum- stances of each case as it is presented to the court, and not a general opinion upon the propriety or impropriety of granting licenses. Whether any or all licenses should be granted is a legislative, not a judicial question. Courts sit to administer the law fairly, as it is given to them, and not to make or repeal it. The law of the land has determined that licenses shall exist, and has imposed upon the court the duty of ascertaining the proper instances in which the license shall be granted, and therefore has given it to the court to decide upon each case as it arises in due course of law. The act of deciding is judicial, and not arbitrary or wilful. The discretion vested in the court is, therefore, a § 150] abuse or power. 209 judicial discretion ; and to be a rightful judgment it musl be exercised in the particular case and upon the facts and circumstances before the court, after they have been heard and duly considered ; in other words, to be exercised upon the merits of each ease, according to the rule given by the Act of Assembly. TcLsay that I will grant no license to any one, or that I will grant it to every one, is qoI to deci judicially on the merits of the case, but to determine before* band without a bearing, or else to disregard what has been heard. It is to determine, not according to law, but outside of law, and it is not a legal judgment, but the exerci.se of an arbitrary will." 184 § 150. [Upon a similar question, where an act,] after fixing the hours within which intoxicating liquors might be sold, authorized the licensing justices to alter the hours in any particular locality, within the district, requiring other hours; it was held that they had no right to alter the time in every case by virtue of a general resolution to which they had come (a). And though their resolution was limited to a portion of the locality, yet as this portion comprised every licensed house of the whole district, the limitation was regarded as a mere attempt to evade the Act. The statute required them to decide, in the honest and bona fide exercise of their judgment, what particular localities required other hours for opening and closing, than those specified ; and they were bound to satisfy themselves that the special cir- cumstances of the particular locality, which they took out of the general rule laid clown by Parliament, required that the exception should be made (b). The statute had laid down a general rule, and permitted an exception ; but here the exception had swallowed up the rule ; and that which might fairly have been an exercise of discretion, became no exercise of the kind of discretion meant by the Act (c). 184 Schlaudecker v. Marshall, 72 (b) Sec the judgment of Lord Sel- Pa. St. 200. 206-7, per Agnew, J. borne, Id. 359. (a) Macbeth v. Ashley, L. R. 2 (c) Per Lord Cairns, L. R. 2 Sc. Sc. App. 35'3. App. 357. [See Addenda.} 14 210 JURISDICTIONS. [§ 151 CHAPTER VI. Presumptions as to Jurisdictions, Government, Excess of Legislative Functions and Powers, Violation of International Law, Treaties and Constitution. § 151. Presumption against Ousting Jurisdictions. Superior Courts. § 152. Justices of the Pence and Interior Courts. § 153. Ouster of Jurisdiction by Implication. § 154. Exclusive Statutory Jurisdictions and Remedies. § 155. Presumption against Creating New Jurisdictions and Remedies. § 156. Effect to be given to Necessary Implication. § 157. New Jurisdictions and Remedies not Extended by Construction. § 158. Summary Jurisdictions. § 159. United States Court3. § 160. Special Jurisdictions. § 161. Presumption against Intent to Affect Government. Eminent Domain. § 163. Statutes Imposing Taxation. § 164. Statutes of Limitations. § 165. Municipalities. $ 106. When Government is Included. j 109. Statutes presumed to have no extra-territorial force. § 170. Exceptions. § 171. Presumption against Intent to Exceed Legislative Functions and Powers. Natural Laws. 8 172. Presumption against Invasion of Judicial Functions. ' 173. Presumption against Intent to Bind Future Legislatures. § 174. Presumption against Violation of International Law. Treaties. 176. Rights, etc., of Foreigners. Remedies. | 178. Presumption against Intent to Violate Constitution. § 179. Restriction of Language to Conform with Constitution. § 180. Limits of Rule. § 181. Statute and Constitution to be Construed Together. § 151. Presumption against Ousting Jurisdictions. Superior Courts.— It is, perhaps, on the general presumption against an intention to disturb the established state of the law, or § 151] JURI8DICn [0N8. 211 to interfere with the vested rights of the subject (a), that the strons leaning now rests against construing a statute ae oust- ing or restricting the jurisdiction of the Superior Courts ; although it. may owe its origin to the pecuniary interests of the Judges in former times, when their emolument depended mainly on fees (b). It is supposed that the legis- lature would not make so important an innovation, without a very explicit expression of its intention. It would not be inferred, for instance, from the grant of a jurisdiction to a new tribunal over certain cases, that the legislature intended to deprive the Superior Court of the jurisdiction which it already possessed over the same cases. Thus, an Act which provided that if any question arose upon taking a distress, it should be determined by a commissioner of taxes, would not thereby take away the jurisdiction of the Superior Court to try an action for an illegal distress (c). Nor would that Court be ousted of its preventive jurisdiction to stop by in- junction the misapplication of poor rates, by the power given to the poor law commissioners by statute to determine the propriety of all such expenditure id). It did not follow in either case, that because authority was given to the com- missioners, it was taken away from the Court. [So, a grant to the councils of a municipality, of power to open streets, does not operate as a repeal of that power conferred by former acts upon the Courts of Quarter Sessions. 1 An act which extended the equity jurisdiction of the Supreme Court of Pennsylvania and of the Courts of Common Pleas in Philadelphia County to causes based on accounts, etc., was (rt) See Jacobs v. Brett, L. R. 20 B. 122. Eq. 1. [See, also, Overseers v. (d) Atty.-Genl. v. Southampton, Smith, 2 Serg. & R. (Pa.) 363, 3G5, 17 Sim. 0. See Birleyv. Chorlton, 3U7.] 3 Beav. 41)!); Smith v. Whitmore, (f>) Per Lord Campbell in Scott 1 Hem. & M. 676, 2 De Gex, J. & v. Avery, 5 H. L. 811, 25 L.J. S. 297,33 L.J. 713. [See People Ex. 30S." Soinconstruingcontracts, v. Vanderbilt, 24 How. Pr. (N.Y.) Scott v. Avery; Tredwen v. Hoi- 301, where it was held that a statute man, 1 II. & C. 72, 31 L.J. 398; Ed- conferring power to remove an ob- wardsv. Aberayon Insurance Co., 1 struction when erected, does no1 Q.I}. D. 503; Dawson v. Fitzgerald, take away Hie right of the courts Ex. D. 257. to prohibit the erection thereof be- to) -13 Geo. 3, c. 99; Shaftesbury fore completed, if it is unlawful, v. Russell, 1 B. & C. GOG; see, also, apart from the statute.] Rochdale Canal Co. v. King, 14 Q. ' Be Twenty-eighth Sir., 102 Pa. St. 140. 212 JURISDICTIONS. [§ 152" held not repealed by a later act giving the courts of Common Pleas throughout the state chancery jurisdiction in settling partnership accounts etc.; nor the hitter by an act giving jurisdiction to all the courts of Common Pleas of several classes of cases, including accounts which cannot be settled by actions of account render. 5 Statutes giving jurisdiction to courts of law previously within the jurisdiction of courts <»f equity, do not, ordinarily, where the language of the statute is affirmative and does not otherwise provide, destroy the jurisdiction of the latter in the premises; 3 the principle being that an act affirmatively giving jurisdiction to one court is not to be understood as ousting the jurisdiction pre- viously existing in another. 4 It may be observed that this principle 6 applies equally to constitutional provisions affecting the jurisdiction of, e. (/., the Supreme Court of the State,* whose jurisdiction, it is said, can be taken away only by express words or irresistible implication, 7 whether by statute or by the constitution, 8 and whether that jurisdiction be original or appellate. As a result of the strict construction flowing from the presumption against ousting an established jurisdic- tion, it follows that an act giving an exclusive in place of a former concurrent jurisdiction is not to be construed retro- spectively, if its language can fairly bear another interpreta- tion. 10 §152. Justices of the Peace and Inferior Courts.— Acts which give justices and other inferior tribunals jurisdiction in certain cases, are understood, in general, when silent on the subject, as not affecting the power of control and supervision which the Superior Court exercises over the proceedings of 2 Dick's App., 106 Pa. St. 589. 4 Barnawell v. Threadgill, supra. The statutes were, respectively, 6 For a recognition of which see Act 13 June 1840, § 89; Act 13 Oct. Custer Co. v. Yellowstone Co., 6 1840, § 19; Act 14'Feb. 1857. Mont. 39. 3 Crawford v. Childress, 1 Ala. 6 See post, § 522, Com'th v. 482 ; Wesley Church v. Moore, 10 Balph, 111 Pa. St. 365. Pa. St. 273; Raudebaugh v. Shel- 1 Overseers v. Smith, 2 Serg. & ley, 6 Ohio St. 807 ; Barnawell v. R (Pa.) 303, 3G5. Threadgill, 5 Ired. Eq. (N. C.) 86 ; 8 See cases in notes 6 and 7. Phipps v. Kelly, 12 Oreg. 213 ; 9 Ibid. McKoin v. Cooley, 3 Humph. 10 State v. Littlefield, 93 K C. (Tenn.) 559. And see People v. 614; and see where an exclusive Vanderbilt, 24 How. Pr. (N. Y.) jurisdiction is made concurrent, to 301 ; Gibbesv. Beaufort, 20 S. C. the same effect: Mc Michael v. 213. Also post, § 218. Skilton, 13 Pa. St. 215. §152] JURI8DIC] [0N8. t)1q such tribunals. [Thus where an net authorized the sale of the property of ;i married man deserting his wife and leav- ing her a charge upon the public, upon the order of two justices, confirmed by the Court of Quarter Sessions, it was beld that the jurisdiction of the Supreme Court to review the proceedings upon certiorari (the proceeding being statu- tory, and therefore properly reviewable by certiorari, 11 unless the jurisdiction to issue the writ was ousted by the act.) was not taken away, either expressly or by irresistible implica- tion, although, as to other matters covered by the act, other sections of the same made the decisions of the Quarter Sessions final. 19 Acts giving such inferior jurisdictions] are even strictly construed when their language is doubtful ; 13 [and this is especially so, where the jurisdiction conferred is civil."] Enactments to the effect that "no Court shall intermeddle" in the cases («), or that the case shall be " heard and finally determined " below (b), would not be construed as prohibiting- such interference ; 16 and enactments which expressly provide that such proceedings shall not be removed by certiorari to the Superior Court have no 11 Parks v. Watts, 112 Pa. St. 4. « Overseers v. Smith, 2 Serg. & P. 363. 13 Bigelow v. Stearns, 19 Johns. (N. Y.) 39 ; Davis v. .Marshall, 14 Barb. (N. Y.) 90 ; Firm- stone v. Mack, 49 Pa. St. 3S7 ; Campari v. Fairbanks, 1 Mich. 151 ; Barkis v. Slate, 4 Ind. 126 ; Wakefield v. Slate, 5 Id. 195; O'Brien v. Slate, 10 Ind. 309 ; Walker v. Wynne, 3 Yerg. (Tenn.) 02 ; and see Hersom's Case, ;!9 Me. 470 ; also Bish., Wr. L., 8 197, that statutes creating limited jurisdic- tions should be strictly construed, cit. State v. Anderson, 2 Tenn. (2 Overt.) G ; Shawnee v. Carter, 2 Kan. 115 ; Russell v. Wheeler, Hempst. 3 : but as to procedure, see same case, ante, ?' L08, note. 14 All civil jurisdiction in jus- tices of the peace i- essentially stat- utory ; it has no common law root: see "Ellis v. White. .". Ala. 540 ; Firmstone v. Mack, 49 Pa. St. 387, 392; Willey v. Strickland, 8 Ind. 453. At common law, justices of the peace were only conservators of the peace : lb. In Searcy v. Tillman, 75 Ga. 504. it was held that a note for $100 and ten per cent, attorney fee for collection was beyond the jurisdiction of a jus- tice. (a) R. v. Moseley, 2 Burr. 1011. {b) II. v. Plowright, 2 Mod. 95 ; 2 Hawk. P. C. c. 27, s. 23. See Jacobs v. Brett, L. P. 20 Eq. 1; Chambers v. Green, Id. 552; Ilawes v. Paveley, 1 C. P. D. 418; Bridge V. Branch. Id. 633; Oram v. Brearey, Ex. D. 340. [Hut sci' Snell v. Bridgewater, etc., Co., 24 Pick. (Mass.) 296, where an act declaring a judgment entered in a certain proceeding to be "final" was held to preclude the right of appeal.] u Nor docs the grant of " exclu- sive 'jurisdiction over certain offences, to a police court, exclude the authority of justices Of the peace to receive complaints and issue warrants returnable before that court against persons charged with those offences: Com'th v. O'Connell, 8 Gray (Mass.) 464; and see Exp. Bishop, I .Mo. 219. 214 JURISDICTIONS. [[§ 152 ap})lication when the lower tribunal has overstepped the limits of its jurisdiction in making the order (a), or is not duly constituted (b), for the prohibition obviously applied only to cases which have been entrusted to the lower jurisdic- tion ; or where the party who obtained the order, obtained it by fraud (c). [In conformity with this mile was the con- struction of an act relating to the jurisdiction of justices of the peace, and authorizing the issuing of writs of certi- orari by courts of common pleas to such justices, but only within a certain time, and with a proviso that the judgment of the common pleas should be final, and that no writ of error to the Supreme Court should issue thereon ; another section forbidding the issuance of any writ of certio- rari out of the Supreme Court to any justice of the peace in any civil suit or action. It was held that all these limita- tations must be understood as extending only to civil actions, because in those only was jurisdiction given by the prece- dent parts of the act; only to actions which were essentially civil actions, and not to actions for the recovery of penalties by proceedings assimilated to those for the enforcement of civil liabilities; and only to those civil proceedings which were instituted under the provisions of that act itself, and not to proceedings instituted before justices under juris- diction conferred by other and later acts of assembly, or by municipal ordinances, notwithstanding these made the jurisdiction exercisable " in the same manner" as that, act directed. 16 ] (a) R. v. Derbyshire, 2 Ken.. 299; where the statutory form of an R. v. Somersetshire, 2 B. & 0. BIG; order or proceeding has not been R. v. Si. Albans, 22 L. J. M. (J. properly pursued, by reason of 142; R. v. Wood, 5 E. & 15. 49; which the order or proceeding is R. v. s. Wales R. Co., 13 (I \l void, it may yet be treated as void- 988; Penny v. S. E. R. Co., 7 E. able, and a certiorari taken to &B 660 26 L. .) Q. 15. 225; R. quash it: Fitch v. Comm'rs, 23 v. Hyde, 7 E. & B. 859, 21 L.J. Wend. (N. Y.) 132. And it was M. O. 94 ; Exp. Bradlaugh, 'J Q. held, in lie Biuni, 1 Barb. (N\ Y.) B. D. 509 ; 47 L. J. 105. 187, that the Supreme Court of the (ft) R. v. Cheltenham, 1 Q.B. 467. State had power to review, upon (c) R. v. Cambridge, 4 A. & E. certiorari, the proceedings of a 121, per Lord Denman ; R. v. (Jill- magistrate, who, while professing yard, 12 Q. '•'>. 52"i ; Colonial Bank to exercise a jurisdiction conferred v. Willan, L. R. 5 P. C. 417. [A by act of Congress, had acted in the certiorari does not lie from a name of I he people of the; Slate, by superior loan inferior courl to re- writs of the people directed to State move a cause merely bv reason of officers.] a defect of jurisdiction : Fowler v. 16 Coui'th v. Betts, 76 Pa. St. 405 Lindsey, 3 Dall. (Pa.) 411. But §153] jurisdictions. 215 § 153. Ouster of Jurisdiction by Implication. — The Saying has been attributed to Lord Mansfield that nothing but express words ean take away the jurisdiction of the Superior Courts (a); but it. may certainly he taken away also by implication (b). Thus a provision that if any dispute arises between a society and any of its members it shall be lawful to refer it to arbitration, ousts the jurisdiction of the Courts over such disputes (c). It is obvious that the provision, from its nature, would he superfluous and useless, if it did not receive a construction which made it compulsory, and not optional, to proceed by arbitration. [So, where a statute conferred upon the Orphan's Court, charged exclusively with the settlement of decedent's estates, jurisdiction in partition of decedent's real estate among persons who took by descent from them, it was held that its jurisdiction in such eases was exclusive and ousted the jurisdiction of the courts of common pleas. 17 ] Where an A.ct imposed penal- ties and took away the certiorari ; and a subsequent one, after increasing the penalties and extending- the restriction of the first, provided that all " the powers, provisions, exemptions, matters and things" contained in the earlier should, except as they were varied, be as effectual for carrying out the latter where the authorities are collated Brearey, 2 Ex. D. 348. [See also, and examined. And see Caughey to this effect : New London, etc. v. Pittsburgh, 12 Serg. & R. (Pa.) R R. Co. v. It. R. Co., 102 .Ma-. 53 ; and Bauer v. Augeny, 100 Pa. '■»>. 389; Overseers v. Smith, 2 St. 429, where the righl of the Serg & R. (Pa.) 363 ; /.'< Twenty- Supreme Court to issue certiorari eighth St., L02 Pa. St. 11'*. 149; to a justice in a, case nut falling Cora'th v. Balph, 111 Id. 365; Gra- within (he prohibition of the act ham v. O'Fallon, :! Mo. ~>uT.| above referred to. Act •.'<> March (c) Crisp v. Bunbury, s Bing. 18lo, was exercised unaffected by 394 ; and see .Marshall v. Nichols, the Constitution of 1874. On the 18 Q. B. 882. 21 L.J. Q. B. 343 ; other hand, the provision in the Boyiield v. Porter. 13 East, 300; act of 1810 (under which a justice's Exp. Payne, 5 I). & L. 0?'.» ; jurisdiction was limited to $100) Armitage v. Walker, 2 K. & J. '.Ml; that the judgmenl of the common Reeves v. White, i ; Q. B. 995, 21 picas on certiorari should be final, L. J. 170; Wrighl v. .Monarch was not repealed by the act of 1879 [nvestmenl Soc, 5 Cb. 1>. 726; enlarging his civil jurisdiction to Huckle v. Wilson, 2 C. I'. D. U0. $300 : Pa., etc., Co. v. S tough ton, Comp. Rochdale (.'anal v. King, 14 106 Pa. St. 458. Q. B. L22. (a) R. v. Abbot, Doug. 553. » McMichael v. Skilton, L3 Pa. (b) Per Ash nest, .1., in Cates v. St. 215; Clawges v. Clawges Knight, 3 T. R. 442, and Sbipman Miles (p a .) 34. ('This rule v\ v. Henbest, 4 T. R. L16 ; /« r Jcssel, however, changed by the act of 01 M. R. in Jacobs v. Brett, L. R. 20 April, 1846, 1'. !>. 426.) And b Eq. 6; per Pollock, 15., in Oram v. Graham v. O'Pallon, 3 Mo. ooT. 216 JURISDICTIONS. [§ 154 Act as if re-enacted in it ; it was held that the clause which took away the certiorari was incorporated in the now Act, and consequently that the jurisdiction of the Superior Courts was ousted (a). [And in a later case it has been held that an act providing for the summary punishment of a seaman who neglects, without reasonable cause, to join his ship, by implication takes away any other previously existing rem- edy against the seaman for such breach of his contract. 18 Similarly, where a statute imposed a fine upon any person participating in the loaning of public money, to double the amount embezzled, this remedy was held exclusive of a civil action for the same offense.' 9 ] § 154. Exclusive Statutory Jurisdictions and Remedies. — Where, indeed, a new duty or cause of action is created by Statute, and a special jurisdiction out of the course of the common law — [a particular proceeding not theretofore existing to enforce the duty imposed or to vindicate the right conferred,] is prescribed, there is no ouster of the jurisdiction of the ordinary courts, for they never had any [and it follows that the statutory remedy, and no other, must be strictly pursued." So, when a statute creates a right and provides a specific mode for redress of injuries caused by its exercise," 1 (a) R. v. Fell, 1 B. & Ad. 380. boat, 2 Iowa 460: MoKenzie v. 18 Great Northern, etc., Co. v. Gibson, 73 Ala. 204; Camden v. Edgehill, L. R. 11 Q. B. D. 225. Allen, 26 N. J. L. 398; McKinney 19 Hancock Co. v. Bank, 32 Ohio v. Nav. Co., 14 Pa. St. 65 ; Moyer St. 194. Compare, however. Salem v. Kirby, 14 Scrg. & R (Pa.) 165 ; Turnp., etc., Co. v. Hayes, 5 Turnp. Co. v. Brown, 2 Pen. & Cush. (Mass.) 458, where the pro- W. (Pa.) 463; Turnp. Co. v. Mar- vision of a charter of a turnpike tin, 12 Pa. St. 362; Philadelphia v. company, that any person guilty Wright, 100 Id. 235; Beltzhoover v. of certain injuries to the road Gollings, 101 Id. 293; White v. should pay a certain fine, was held McKeesport, Id. 394; People v. not to take away any common law Craycroft, 2 Cal. 243; Thurston v. remedies for such injury, partly Prentiss, 1 Mich. 193; State v. Cor- upon the ground, that, in many win, 4 Mo. 609; Lang v. Scott, 1 cases, the fine would be a wholly Blackf. (Ind.) 405; McCormack v. inadequate compensation. R.R. Co., 9 lnd. 283; State v. Lof- *° Vallance v. Falle, L. K. 13 Q. tin, 2 Dev. & B. (N. C.) 81; Bailey B. D. 109; Bailey v. Bailey, Id. v. Bryan, 3 Jones (N. C.) 357; 859; Almy v. Harris, 5 Johns. (N. Pruden v. Grant Co., 12 Oreg. 308. Y.)175; Renwick v. Morris, 7 Hill 21 Sudbury Meadows V.Middlesex (N. Y.) 575; Smith v. Lockwood, Canal, 23 Pick. (Mass.) 36; Dodge 13 Barb. (N. Y.) 209 ; Dudley v. v. Essex, 3 Met. (Mass.) 380; Spang- .Uayhew, 3 N. Y. 9; Hinsdale v. ler's App., 64 Pa. St. 387; Henni- l.arned, 16 Mass. 65; Boston v. ker v. It. R. Co., 29 N. 11.147; Shaw, 1 Met. (Mass.) L30; Crosby Spring v. Russell, 7 Me. 273. but v. Bennett, 7 Id. 17; Ham v. Steam- see Fryeburg Canal v. Frye, 5 Id. § 155] JURISDICTIONS. 217 or for the neglect of a duty coupled with the grant of the privilege," or gives ;i right of action for an injury not pre- viously actionable by plaintiff." And where an act provides a remedy against the state, never liable to a common law action, that remedy is, of course, exclusive of all othi But where the Act directs that a new offence which it creates shall be tried by an inferior Court according to the course of the common law, the inferior Court tries it as a common law Court, subject to all the consequences of common law pro- ceedings, and subject therefore to removal by writs of error, habeas corpus, and certiorari ; and the Superior Court would not be ousted of this jurisdiction (a). § 155. Presumption against Creating New Jurisdictions and Remedies.— As it is presumed that the Legislature would not effect a measure of so much importance as the ouster or restriction of the jurisdiction of the Superior Court without an explicit expression of its intention, so it is equally impro- bable that it would create a new [especially a new and 38. Such is the case of a right of action given by statute to property owners for injuries sustained by them from the exercise by corpora- tions of tin- right of eminent do- main delegated to them; the pro- ceedings prescribed by the statute lor l he enforcement of the claim being exclusive of any other remedy: Hull v. R.R. Co., 21 Neb. 371 and eases before cited. But the restriction to such statutory remedy applies only where the cor- poration proceeds, in the exercise of its rights, in accordance with the statutory provisions prescrib- ing the manner of their exercise. If it deviates from, or ignores, e. //., the statutory method of appropria- tion of land, which alone can make its possession rightful, it is, like any one else in such circumstances, a mere trespasser, liable to the usual common law remedies by the owner: ibid., cit. Omaha, etc., R. R. Co.. v. Menk. 4 Neb. 20, 24; Blaisdell v. Winthrop, I is Mass. 138; Ewing v. St. Louis, 5 Wall. 413; so that the owner may enjoin its entry: Omaha, etc., I J. R. Co., v. Menk, supra; Kay v. R. R. Co.. 4 Neb. 439; Cameron v. Supervis- ors, 47 Miss. 264; Paris v. Mason, 37 Tex. II?; Floyd v. Turner, 23 Id. 292; Pierpoint v. Harrisville, 9 W. Va. 215; or may bring eject- ment: Hull v. R. R. Co., supra, Cit. Chic., etc.,R. R. Co. v. Smith, 78 HI. 96; Smith v. R. R. Co., 67 I<1. 191; Chic, etc., R. R. Co. v. Knox College, 3-1 Id. 190; or tres- pass: see Bethlehem, etc., Co. v. Yoder, 112 Pa. St. 136; Justice v. R. R. Co., 87 Id. 28. 83 Bailey V. Bailey, L. R.Li Q. B. D. 859; Bassett v. Carleton, 32 .Me. 553; Pittsb.. etc., Ry Co. v. Com'th, 101 Pa. St. 192. '- 3 So, in a statutory action by a widow against a railroad company for the death of her husband, she must bring herself within the statu- tory requirements necessary to con- fer the right of action, and they must appear in her petition or com- plaint: Marker v. Han. & St. Jos. By Co.. !U Mo. si;. '-' McKinney v. Xav. Co., l I Pa. St. 65; comp. post, >i 168. See as to strict pursuance of statutory remedies and rights, post, §§ 434, 435, 165. (a) Per Lord Mansfield in Hart- ley v. Hooker, Coup. 524. 21 S JURISDICTIONS. [§ 15& exclusive"] jurisdiction with less explicit ness; and therefore a construction which would impliedly have this effect is to- be avoided (a). It has been said that an inferior Court is not to be construed into a jurisdiction (I) ; [that, e. g., the jurisdiction of a magistrate can never be created by implica- tion from the phraseology of a statute assuming it to extend to a particular case. 20 ^ An Act, for instance, which in pro- viding that compensation should be made to all who sustained damage in carrying out certain works, enacted that " in case of dispute as to the amount," it should be settled by arbitra- tion, would be confined strictly to cases where the amount only was in dispute, but would not authorize a reference to arbitration, where the liability to make any compensation was in dispute (c). [So, under an act authorizing compulsory references in eases requiring " the examination of a long account," it was held that the mere fact that entries in books of account must be put in evidence and examined, upon the trial of a case, did not necessarily make the case one that could be so referred f but the case must be one in which the account is directly involved. 28 It is even said, that a failure of justice is not a sufficient reason for construing an 25 Custer Co. v. Yellowstone Co., construed as plainly giving justices 6 Mont. 39. jurisdiction over the offence. See (a) Warwick v. White, Bunb. Stable v. Dixon, 6 East, 163 ; R. v. 10G; Kite and Lane's Case, 1 B. & St. James, Westmr.,2 A. & E. 241 ; C. 107, per Lord Tenterden ; R. v. R. v. Worcestershire, 3 E. & B. Baines, 2 Lord Raym. 1269, cited 488, 23 L. J. M. 0. 113. [Comp. by Lord Demnan. in Fletcher v. post, § 377.] Caltlirop. 6 Q. B. 891 ; per Best, (c) R. v. Metrop. Com. Sewers, C. J., in Looker v. Halcomb, 4 1 E. & B. 694, 22 L. J. 234. Comp. Bing. 188. See If. v. Cotton, 1 E. Bradley v. Southampton Board, 4 6 E. 203 ; Exp. Storey, 3Q. B. D. E. & B. 1014. 24 L. J. 239 ; R. v. 100. Burslem Board, 1 E. & E. 1077, 29 (b) Per Fortescue, J., in Pierce L. J. 242. v. Hopper, 1 Stra. 260. ■' Stoat v. Rothschild, 12 Daly, 26 [Hersom's Case, 39 Me. 476. (N. T.) 95 ; and see Druse v. Hort- Bul see | Cullenv. Trimble, L. R. er, 57 Wis. 044. As to construc- 7 Q. B. 416 ; Johnson v. Colam, ti on of arbitration Acts generally, L. R. 10 Q. B. 544, where an Act see ante, § 108. which, without express]}- ernpow- 88 Camp v. Ingersoll, 86 N. Y. ering any tribunal to try the offence, 433. This same construction, how- imposed penalties on any person ever, would make a statute author- who exposed diseased animals for izing a reference in cases " involv- sale, unless he showed "to the jus- ing matters of account," directly t ices before whom he is charged," applicable to a suit upon a tax-col- that he was ignorant of the condi- lector's bond, to recover a balance tion of the animals, and gave him due by him, as shown by his ac- an appeal if he fell aggrieved ''by counts: Marlar v. State, 62 Miss, the adjudication of justice>," was 077. § 15o] JURISDICTIONS. 219 act against its clear meaniDg so as to give a court jurisdic- tion." [The presumption against the creal ion of a new jnrisdict ion is all the stronger where the jurisdiction is already vested in a superior body. Thus, where an act provided for the trial and determination of contested elections of members of the Legislature hy the Court of Common Pleas of the proper county, and directed the court, after hearing to decide which of the candidates had received the greatest number of legal votes and was entitled to a certificate of election, it was held that this was all the court could do, and that it had no power to enter any judgment or make any decree declaring which claimant was entitled to the offices, the final determination of that matter helongingto the Legislature itself, which was at liberty to disregard every conclusion of fact or law found by the Court. 30 ] § 156. Effect to be Given to Necessary Implication. — How- ever, effect must of course be given to the intention, where the Act, without conferring jurisdiction in express terms, does so by plain and necessary implication. A recent enact- ment has been considered as granting jurisdiction by impli- cation, in a remarkable manner. The 31 & 32 Vict. c. 71, after reciting that it was desirable that some County Courts should have Admiralty jurisdiction, and authorizing the Queen in council to confer such jurisdiction on any of those Courts, empowered them to try certain classes of cases over which the Court of Admiralty had jurisdiction ; directing the judge to transfer any case to the Admiralty, where the amount claimed exceeded 300^., and giving also to the latter Court, in all cases, not only an appeal, but power to transfer to itself any suit instituted in the lower Court. By a supple- mentary Act passed in the following session {'■'''2 & 33 Vict. c. 51), the County Courts on which Admiralty jurisdiction had been thus conferred, were further authorized to try any claim arising out of anv agreement made in relation to the use or hire of any ship, or in relation to the carriage of any goods 29 Pitman v. Flint, 10 Pick. 16 Tex. App. 76. (Mass.) 506. Sec ante ^ G ; but so In /,', ( 'on t. Election of jUc- also post, §265, Chapman v. State, Neill. Ill Pa. St. 235 220 JURISDICTIONS. [§1^7 in an}- ship, where the claim does not exceed 3001. The Court of Admiralty had no jurisdiction over these cases before the Act was passed, but it followed that in thus giving the County Court this jurisdiction, the Statute also gave, by mere implication, to the Admiralty Court, not only appellate, but original jurisdiction also; besides introducing the anom- aly of dealing with small cases on different principles of law from large ones; while the apparent object of the enact- ments was merely to distribute the existing Admiralty jurisdiction (a). § 15 t. New Jurisdiction and Remedies not Extended by Con- struction. — [But, it follows from the application of the pre- sumption against the creation of new jurisdictions and remedies, that where such are given, they are not to be ex- tended beyond the fair import of the legislative grant. 31 Neither, on the other hand, are they to be unduly confined. Thus, an act giving jurisdiction of disputes between non- residents and citizens, would include a case where but one of the defendants is a citizen, the other defendants and all of the complainants being non-residents. 32 And under a statute creating an Orphans 1 Court, the jurisdiction of the same would not be restricted to orphans and persons under age. 33 And again, where in a statute conferring juris- diction upon certain courts, the word " not " was inserted clearly by mistake, in such a way as to nullify the intention of the Legislature, the act was read as though that word had been omitted. 31 Indeed, it is said, that, unless some established rule of law is palpably violated, doubts as to jurisdiction may be solved in favor of the tribunal exercising it. 35 (a) See The Aliua, 5 Ex. D. 227 ; 53 ; and see Thomas v. Adams, 2 Everard v. Kendall, L. R. 5 C. P. Port. (Ala.) 188. 428 ; Simpson v. Blues, L. R. 7 C. s2 Turner v. O'Bannon, 2 J. J. P. 2 ( J0 ; Gunnestad v. Price, L. 11. Marsh. (Ky.) 186. See The Removal 10 Ex. 65 ; Gaudet v. Brown, L. Cases, 100 U. S. 457. R. 5 P. C. 134, and the cases there 3S Wood v. Tallmau, 1 N. J. L. cited. See also Smith v. Brown, 153. L. R. 6 Q. IJ. 720 ; The Dowse, Si Chapman v. State, 16 Tex. L. R. 3 A. & E. 135 ; Allen v. A pp., 7G ; hut see ante, § 155. Garbutt, G Q. B. D. 165, 50 L. J. 35 Smith v. People, 47 N. Y. 330, •141. See Stuart v. Laird, 1 Cranch, 299 ; 81 Pringle v. Carter, 1 Hill (S. C.) post, § 527. § 158] jurisdictions. 221 § 158. Summary Jurisdictions. — [The presumption against an intention to create ;i new jurisdiction applies] especially when it would have the effect of depriving the Bubjecl of his freehold, or of any common law right, such as the right of trial by jury, or of creating an arbitrary procedure." It lias been said that words conferring such a jurisdiction must be clear and unambiguous (a). [Not only where the statute is so defectively drawn, that, in one part it appears as though it should be executed summarily, and in another, in the usual way, must the latter construction be preferred ;" but, where the jurisdiction given by the statute is clearly a summary one, it is the universal rule in this country, as well as in England, 39 that the provisions of the statute are to be strictly construed. This principle is established, or rather acted upon, in innumerable cases, declaring that no pre- sumptions are to be made in favor of such jurisdiction ; that the record of the proceedings under it must show all the faets necessary to give it, and strict compliance with all the details prescribed by the statute 39 conferring it; and that the jurisdiction is to be limited to the precise cases contem- plated by the statute. The stringency of these rules, how- ever, is aided by other presumptions, which will hereafter appear, and to the discussion of which any further examin- ation of it seems properly referable. 40 § 159. United states Courts. — [The presumption against the extension, or creation of new jurisdictions is one of con- siderable practical importance as affecting the powers of federal courts. The federal courts have, strictly speaking, no common law jurisdiction ; 41 and as their jurisdiction is special and not general, there can be no presumption of jurisdiction in their favor and the record must disclose all the facts necessary to give them cognizance of the case under the various acts of Congress." In the construction of « 6 See ante, cases in note a, p. 217. 89 See Bish., Wr, L. § 193. (a) Per Keating, J., in James v. 40 Sec post, £i, 262, 344, 351. S. E. R. Co., L. K. 7 Ex. 296. * l Field. Fed. Cts. p. 125, and 81 Bennett v. Ward, 3 Cai. (N.Y.) cases cited in note 2. 259. 4 - Field. Fed. Cts. pp. 136-7, 38 See Davison v. Gill, 1 East, 64, and cases in note 1 ; p. 208, and per Kenyon, C. J. cases in notes 4-8. 222 j cms dictions. [§ 106 these acts, however, a reasonable liberality is not to be de- nied to their language. Hence, under an act, conferring upon circuit courts jurisdiction in " all suits of a civil nature at common law or in equity " the hitter term u does not limit the jurisdiction merely to suits which the old common law recognizes as among its fixed and settled proceedings, but it embraces all suits in which legal rights are to be ascertained and determined, as well as rights in equity ; 43 and the phrase "suits of a civil nature" is held to include an action of forcible entry and detainer, 44 an action to recover money lost at gaming or horse-racing, 45 a suit against a sheriff for an escape or other neglect or misdemeanor, 40 and the like. 47 So under an act which gave jurisdiction in controversies between citizens of different states, it was held that the term citizen, in that act, embraced not only those techni- cally citizens, i. e., possessing the requisite qualifications for voting and holding real estate, but anyone who resides in, and is an inhabitant of a state. 48 And corporations are regarded as citizens within the meaning of the law, 4D to the extent of including municipal corporations. 60 § 160. Special Jurisdictions.— [Upon the principle under dis- cussion, any special jurisdiction, conferred upon a court for a particular emergency, is not to be extended beyond its purpose, and the facts giving the jurisdiction must appear. Thus, where an act gave authority to a corpora- tion to take land for the construction of a canal, and pro- vided, that, if the company could not agree with the owners as to compensation, the parties might appoint viewers to 43 Field, Fed. Cts. 'p. 110, cit : DeWolf v. Rabaud, 1 Pet. 47(5; Kohl v. U. 8., 91 U. S. 3G7 ; U. S. Shelton v. Tiffin, 6 How. 163. v. Block, 3 Biss. 208. Compare, however, Dred Scott v. 44 Wheeler v. Bates, 6 Biss. 88. Sanford, 19 How. 393. 45 Grant v. Hamilton, 3 McLean, 49 Field, Fed. Cts. p. 121, citing 100. O. &M. R. R. Co. v. Wheeler, 1 46 Mewstcr v. Spaulding, Mc- Black, 296 ; Louisville R. R. Co. v. Lean, 24. Letson, 1 How. 497; Marshal v. R. 17 See Field, Fed. Cts. p. 110, R. Co., 10 Id. 314; Covington, etc., from whence the above instances Co. v. Shepherd, 21 Id. 212 ; Rail an- borrowed. road v. Harris, 12 Wall. 65 ; R. R. Si e Field, Fed. Cts. p. 115, Co. v. Whitton, 13 Id. 270. citing Prentiss v. Barton, 1 Brock. B0 Field, Fed. Cts. p. 135, and 389 ; Cooper v. Galbraith, 3 Wash, cases cited there. 546 ; Gardner v. Sharp, 4 Id. 609 ; § 101] GOVERNMENT. 223 assess the damages ; or, if any of the owners should refuse to join in such appointment, or be femes covert, infants, or noii compotes mentis, the court of common pica- might appoint the viewers: it was held that the jurisdiction of the common pleas could attach only, if the owners, not being within the disabilities mentioned, refused to join in the appointment of viewers, and that the record of the pro- ceedings must show that the requisites of the act had been complied with." [Analogous to the rule as to such special jurisdictions seems the doctrine that "a statute will not be construed, unless express words require, to confer jurisdiction on courts established under another power ; as, if it is a statute of the United States, to give authority to State tribunals.""] §101. Presumption against Intent to Affect Government. Eminent Domain.— On probably similar ground rests the rule commonlv stated in the form that the Crown is not bound by a statute unless named in it. 63 It has been said that the law is prima facie presumed to be made for subjects only (a), [that " the general business of the legislative power is to establish laws for individuals, not for the sovereign." 54 ] At all events, the Crown is not reached except by express words, or by neces- sary implication, in any case where it would be ousted of an existing prerogative or interest (I). It is presumed that the Legislature does not intend to deprive the Crown of any prerogative, right or property, unless it expresses its inten- tion to do so in explicit terms, or makes the inference irre- sistible. Where, therefore, the language of the statute is 61 Jones v. Tatham, 20 Pa. St. 398, 411. 398. See also Haley v. Petty, 42 (b) Inst. 191, Atty.-Genl. v. All- Ark. 392, and post, f; 351. good, Parker, 3 ; Bac. A I). Pino M Bish., Wr. L., S, 142, cit. Hoik- gative, E. 5 (c) ; Co. Liu. |:;i>. ; ton v. Moore, 5 Wheat. 1, 42, Go ; Chit. Prerogative, 883; Ayscough's In re Bruni, 1 Barb. (X. Y.) 187, Case. Cro. Car. 526 : Buggins v. 208. Bambridge, Willes, 241 ; R. v. 53 Compare Sedgw., at p. 28: Wright, 1 A. & E. 437. [U. S. v. " The English precedents are based Hewes, Crabbe, ;i<»7 ; \j. S. v. on the old feudal ideas of royal Greene, 4 Mason, 427 ; U. 8. v. dignity and prerogative "; and see Hoar, 2 Id. 311; Stoughton v. post, & 166, note. Baker, 4 Mass. 522 ; Jones v. (a) Willion v. Berkley, Plowd. Tatham, 20 Pa. St. 898; State v. 23b' ; per Cur. in Attv.-Cenl. v. Milburn, 9 Gill (Md.) 105 ; Alexan- Donaldson, 10 M & \V. 117. der v. State, 50 Ga. 47S ; Cole v. "Jones v. Tatham, 20 Pa. St. White, 32 Ark. 45.] _'_ 1 GOVERNMENT. [§ 102' general, and in its wide and natural sense would divest or take away any prerogative or right, [titles or interests] from the Crown, it is construed so as to exclude that effect (a). Thus, the compulsory clauses of Acts of Parliament, which authorize the taking of lauds for railway or other purposes, such as are contained in the Lands Clauses Act of 1845, would nut apply to Crown property, unless made so appli- cable in express terms or by necessary inference (b). [So, where an act of Assembly authorized a corporation to cut a canal or passage for steamboats and vessels through an island, taking therefor not more than 600 feet in width, the passage, when made, to be a public highway ; and author- ized the company to enter upon and occupy for the purpose of making said canal, any land upon which the same might be loeated, — it was held, that, if the island, at the time of the passage of the act. was the property of the Common- wealth and not of private individuals, the company, under that act, derived no title to an}' part of it, because words of a statute, applying to private rights, do not affect those of the state, in the absence of a plain expression, or necessary implication to the contrary. 65 § 162. [Upon the same basis rests the doctrine that the grant to a corporation by the legislature of a general power to take real estate for the purposes of the incorporation does not extend to property already dedicated to and held for another public use by authority of law, — as, e. n vesting in the Sovereign (a). 1G4. statutes of Limitations.— On the same general princi- ple, the numerous Acts of Parliament which have, at various tunes, taken away the writ of certiorari, have always been held not to apply to the Crown (b). So, the 13 Geo. 2, c. L8, s. 5, which limits the time for issuing that writ to six months from the date of the conviction (c), and the 12 & 13 Vict. c. 45, s. 5, which authorizes the Quarter Sessions to give costs to the successful party in any appeal ((I), do not apply to the Crown (the prosecutor), but only to the defend- ant. On the same ground, it would seem, the 4 Anne, c. 1G, s. 4, which authorized a " defendant 87 or tenant," with 170 ; Beds v. St. Paul, 7 Ex. 650. See the judgments of Blackburn. J. and Lord Cranworth in Mersey Ducks Co. v. Cameron, 11 II. L. II:;, 35 L J. M. C. 10; Leith Oomm. v. Poor [nsp'rs, L. R. 1 Sc. App 17 ; or reformatoi v s :hool ; Shepherd v. Bradford, 16 C. B. N. S. 369, 33 L. J. M. C. 182. See Bio. Ab. Prerog. du Roy, 112; Kin- v. Cook, 3 T. R. 519 ;' Wesl over v. Perkins, 2 E. & E. 57, 28 L. J. M. C. 227 ; or by the com- missioners of public works and buildings in respect of a toll-bridge of which they were in occupation as servants 01 the Crown : R. v. McCann, L. R. 3 Q. B. 677 ; was held exempt, from poor-rate. (Comp. Bute v. (Jrindall, 1 T. R. 338; R. v. Ponsoubv, 3 Q. B. 14; U. v. Shee, 4 Q. B. 2 ; II. v. Shu art, 8 E. & B. 360.) And property in the occupation of the Sovereign would, also, not be lia- ble to the common law burden of church rates or sewer's rate ; one reason assigned being that they could not be enforced: Per Dr. Lushington in Smith v. Keats, 4 Hagg. f 79 ; Atty.-Genl. v. Donald- son, 10 M. & W. 117. So, the Royal Dockyards al Deptford were held not assessable to the land tax : Atty.-Genl. v. Hill, 2 M. A: W. 160. 66 Directors of the Poor v. School Directors, 42 Pa. St. 21. But un- der an act providing that " all property," other than that which is in actual use for certain purposes therein before specified, " and from which any income or revenue is derived," shall be subject to taxa- tion, a municipality owning water- works from which a revenue was derived by means of water rates paid by consumers, was held sub- ject to taxation for county pur- poses, irrespectively of the ques- tion whether the revenue thus de- rived was paid into the treasury of the municipality or used in main- taining and improving the prop- erty : Erie Co. v. Commissioners, 113 Pa. St. 368. (a) Colchester v. Kewney, L. R. 1 Ex. 368. (b) See, ex. gr. R. v. Cumber- land, 3 B. & P. 334 ; R. v. Allen, 15 East, 333 ; R. v. Boultbee, 4 A. & E. 498. (c) R. v. Farewell, 2 Stra. 1209; R. v. .lames, 1 East, 303n ; R. v. Berkeley, 1 Ken. so. (d) R. v. Beadle, 26 L. J. M. C. Ill, 7 E. & B. 492. 61 Ordinarily the terms plaintiff and defendant, in a statute, apply to individuals only, not. to states. counties or municipal corporations: Schuyler Co. v. Mercer Co., 9 111- 20. L64] GO'S EBNMENT. 227 the leave of the Court, to plead several matters, was held not to extend to defendants in suits by or <>n behalf of the Crown (a) ; nor was the right, of the Crown as to proceedings in the Exchequer touching the revenue or property of the Crown, affected by the County Court, or Judicature, or Companies (1862) Acts (b). The Statutes of Limitation (c) have always been held not to bind the Crown [in England, nor the Government of the United States in this country," unless so expressed. 60 With reference to state governments, the rule is practically the same. 70 And it is immaterial (a) Atty.-Genl. v. Allgood, Par- ker, 1 ; Attv. Genl. v. Donaldson, 7 M. & W. 422, Id M. & \V. 117 ; R. v. Abp. of York, Willes, 533 ; Hall v. Maule, 4 A. & E. 283. (b) Moimtjoy v. Wood, 1 H. & N. 58 ; Atty.-Geul. v. Constable, 4 Ex. I). 172 ; Alt v. -Genl. v. Barker, L. R. 7 Ex. 177 ; Be Henley, 'J Ch. D. 4G9. (c) 11 Rep. 68b, and 74b ; Lam- bert v. Taylor, 4 B. & C. 138, Oth poinl ; Rustomgee v. R., 1 Q. B. D. 487, 2 Q. B. D. 69. U. S. v. Thompson. 98 U. S. 186 : U. S. v. Rv. Co., 118 Id. 120; U. S. v. Williams, 5 McLean 133; D. S. v. Davis. 3 Id. 483 ; U. S. v. Hoar, 2 Mass. 311 (neither the general statute, nor the statute of limitations of Massachusetts as to executors and administrators); U. S. v. While, 2 Hill(N. Y.)59 (on a note, though held by the U. S. by transfer; aliter, where the statute began to run before trans- fer to the"U. S. : Ibid.); Robl. v. Washington Co., 62 Miss. 589 ; Bates v. A ven, 60 Id. 955 ; Swear- iuger v. U. S., 11 Gill and J. (Md.) 373 ; McNameev. U. S., 11 Ark. lis. Gibson v, Chateau, L3 Wall. 92 ; Sua n n v. Lindsey, 70 Ala. 507. 10 Lindsey v. Miller, Pet. 666 ; People v. Gilbert. IS .Johns. (N.Y.) ■::', : StOUghton v. Raker, 5 Mass. 522 ; Wright v. Swan, Port. (Ala.) 84 ; Kennedy v. Townley, n; Ala. 239 ; Ware v. Greene, 37 Id. 494 ; Bledsoe \. Doe, 5 Miss. 13 ; Parmilee v. McNutt, 9 Id. L79; Stale v. Joiner. 23 Id. 500 ; Josse Ivn v. Stone, 28 Id. 75:' ; Bailey v. Wallace, 16 Serg. and R. (Pa.) 245; Munshower v. Patton, 10 Id. 334 ; Com'th v. Baldwin, 1 Watts (Pa.) 54 ; Com'th v. Johnson, Pa. St. 136 ; Glover v. Wilson, Id. 290 ; McKeehan v. Com'th, 3 Id. 151 ; Com'th v. Hutchinson, 10 Id. 4 prerogative was affect- ed by this construction (/•). § 167. [Indeed, wherever the mischiefs to be remedied by an act areof such a nature as necessarily to include the State, as intended to he within the meaning of and affected by the act, the rule under discussion becomes obviously inapplica- ble. 88 Bearing in mind, that, in the nature of things, there must be a presumption that the legislative' power, in creating its laws, has primarily in view the establishment of rules regu- lating the conduct and affairs of individuals, 89 not thoseof the sovereignty, and that the general language of an act is to be restricted totheobject the Legislature had in view when using such language, it is manifestly misleading, if not technically inaccurate, to say, as has been held, that the sovereign power is not, in this country, exempted, by virtue of its prerogative, from the operation of any general laws, except those prescrib- ing limitations, 90 and probably too narrow to say that the rule excluding the sovereignty is applicable only where neither its rights, property or prerogative are in question. 91 It has, indeed, been -held, that, under an act requiring " all ' : suits upon "any bond, obligation, mi- contract under seal" to be brought within seven years, suits by the State upon official bonds were barred after the lapse of that period."'" On the other hand the term " person " in a statute of wills, author- izing devises to any person capable by law of holding real estate, obviously does not include the State or the United States, but only extends to such natural persons and corporations as are authorized by the laws of the State to («) R. v. Wright, 1 A. & E. » Furlong v. State, 58 Miss. 717. 434 Ami by virtue of express statutory I De Bode v. R., 13 Q. B. 464. declaration, it was held that a stat- Per Cur., 1*1. '.'>','.*. ute limiting the time for bringing as Sec Gibson v. Chateau, 13 actions to recover damages for Wall. 92. injuries u> property ran against Vnte, § 161. the state and one who purchased See lit .Tetlow, 14 Int. Rev. from the state as against any other lice 205. private person : Coleman v. Pesh- »' Supra. ?' 1GG. tigo Co., 11 Wis. 180. 232 GOVERNMENT. [§ 1G7 take by devise. 83 It follows that not only the divesting or not divesting of any public right is to be regarded, but also the violation of principles of public policy. 94 The test, therefore, in every case in which the question whether or not the government is included in the language of a statute has to be met and determined, cannot be a mere general rule, either one way or another, arbitrarily applied, but must be the object of the enactment, the purposes it is to serve, the mischiefs it is to remedy, and the consequences that are to follow, — starting with the fair and natural presump- tion that, primarily, the Legislature intended to legislate upon the rights and affairs of individuals only. This is the only proper extent and application of the rule against inclu- sion of government. The instances cited in the preceding section militate in favor of this view. A few more may strengthen it. As in England the Crown was held bound by the statute of Westm. 1, c. 5, as to free elections, 05 so it lias been said in Massachusetts, that, where general rights are declared, or remedies given, by law, the Commonwealth, though not named, is included ; 08 by the Supreme Court of the United States, that statutes laying down general rules of procedure in civil actions bind the government; 87 in Pennsylvania, that the State is bound by statutes made to prevent tortious usurpations, and to regulate and preserve the right of all elections, and prescribing a method of inves- tigating their legality ;" 8 and in Arkansas, that, if the state descends into the arena of commercial business in concert or competition with its citizens, e. g., in a banking enterprise, it goes, in respect of transactions arising out, or in the course of, the same, divested of its sovereignty, and cannot avail itself of the principle nullum tempus occnrritrcipublicae. 8l, 93 Be Fox, 52 N. Y. 530; U. S. v. feature was emphasized, that the Fox, 94 U. S. 315. subject matter of the statute was 94 See U. S. v. Knight, 14 Pet. one in which the stale was the 301; and also Fink v. O'JSIeil, 100 chiefparty in interest, — afactplain- U. S. 272. ly indicating an intention to include 95 2 Inst. 1G9. the state, without which effect, 96 Com'th v. R. R. Co., 3 Cush. indeed, the statute would have been (Mass.) 25. almost inoperative. 97 Green v. U. S., 9 Wall. 655. " Calloway v. Cossart, 45 Ark. 98 Com'th v. Garrigucs, 28 Pa. 81. St. 9. In this case, the additional §§ 168, l«'»'.i GOVERNMENT. 233 §108. [Wherever there is a presumption against the existence <>f a particular intention on the part of the Legisla- ture, an expression by it, in a statute, of Buch an intention falls, as has been seen 100 under the rule requiring a certain stringency of construction. Accordingly, it has been held that statutes allowing suits against a state or its governor are to be strictly construed, and the right conferred by them is to be confined to those clearly intended to enjoy it, and not, extended, e. y., to aliens, or assignees of aliens. 101 But even in such acts, both suits at law and in chancery will be held included. 10 '] § 169. Statutes Presumed to have no Extra-territorial Force. — Another general presumption is that the Legislature does not intend to exceed its jurisdiction. Primarily, the legisla- tion of a country is territorial. The general rule is, that extra territorium jus dicenti impune non paretur ; leges extra territorium non obligant (a). The laws of a nation apply to all its subjects and to all things within its territories, including in this expression not only its ports and waters which form, in England, part of the adjacent country, but its ships," 13 whether armed or unarmed, and the ships of its sub- jects on the high seas or in foreign tidal waters and foreign private ships within its ports. 104 They apply also to all for- eigners within its territories as regards criminal (b), police, and, indeed, all other matters, 105 except some questions of personal status or capacity, in which, by the comity of nations, the law of their own country, or the lex loci actus or contractus 100 Ante, §127. f orce, e. g. , a prohibition against 101 Rose v. Governor, 24 Tex. departing without a clearance. 496. See ante, § 154. (b) [See Carlisle v. U.S., 10 Wall. 10i State v. Curian, 12 Ark. 321. 147; People v. McLeod. 25 Wend. See ante, §77. (N. Y.) 483, 573; 1 Bill, 377; 1 (a) Dig. 2, 1, 20. Bish., Cr. L., § 124; Bish., Wr. L., 103 See U. S. v. Holmes, 5 Wheat § 141.] So that an American com- 412. mitting a crime in Holland and 104 Thus it was held, in U. S. v. flying to England is regarded as a Diekelman,92 U. S. 520, that, gen- Dutch subject for the pui erally, a merchant vessel entering extradition: R. v.Ganz, 9 Q. 13. D. the port of a foreign country for 93, 51 L. J. 419; and see Atty.- the purpose of trade, whether in Genl. v. Kwok Ah Sing, L. R. 5 time of war or peace, is, while she P. C. 179. See Addenda. remains, subject to the law there in 105 E.g., poll-tax: Kuntz v. Davidson Co., 6 Lea (Tenn.) 65. 234 1 \. i -- OF POWERS, ETC. [§169 applies (a). It is true this does not comprise the whole of the legitimate jurisdiction of a State; for it has a right to impose its legislation on its subjects, natural or naturalized (7j) in every part of the world (c); [" that is to say, when they return within its territorial jurisdiction so as to give an oppor- tunity to exercise sovereignty over them." 1 "] Indeed, on such matters as personal status or capacity it is understood always to do sow/ 1 ; but, with that exception, in the absence of an intention clearly expressed or to be inferred either from its language or subject matter, or history of the enactment, [in such manner as to admit of no other rational interpreta- tion, 107 ] the presumption is that the Legislature does not design its statutes to operate on them, beyond the territorial limits of its jurisdiction (. Sedgw., p. 57. ex. gr. Bronk v. Brook, 27 L. J. Ch. 401; Story, Confl. L., §114; Lolley's Case, 1 R. & R. 236. See also Story, Confl. L., § Kit) et. seqq.; Wheal. Elem. Inter- mit. L., pi. 2, c. '-'. ss. 6, 7. «" Bond v. Jay, 7 Cranch :!50; Farnum v. Canal Corp., 1 Sunint. 46. (e) Rose v. Hinely, 4 Cranch, 241, per .Marshall C. J.; The Zoll- verein, Swab. 90, per Dr. Lushing- ton; Cope v. Doherty, 1 K. & J. 357, ■-' DeG. & J. 614, 27 L. J. r\\. 660. [So that, prima facie, a British statute is not applicable, even as between British subjects, in a foreign jurisdiction : Henry v. Stuart, 1 1 Phila. (Pa.) 110. See, also, Bish.. Wr. I... g 141, citing the following American cases : U. S. v. Iievans, :; Wheat. 336; U. S. v. Wiltberger, 5 Id. ;<> ; V. S. v. Holmes, Id. 412; People v. Caesar, 1 Parker 645, 7; Vaudeventer v. R. R. Co., 27 Barb. (N. V.) 244; Bishop v. Barton, 2 Hun i N. Y.) 436; Com'th v. Green, 1 i M 515, 540; Mitdiell v. Tibbets, 17 Pick, i Mass i 298; Com'th v. Har- ris, L3 Allen (Mass.) 534; Hildreth v. Heath, 1 111. App. 82; Hover v. Pa. Co.. 25 Ohio St. 667; McCarthy v. It. R. Co., 18 Kan. 46. And for application of the same princi- ple to a municipal bylaw: Si. Louis Gas Light Co. v. St. Louis, 46 Mo. 121. [That, however, a state may pass laws authorizing the doing of certain acts outside of its lim- §169] I SCESS OF POWERS, ETC .:•<.' read, usually, as if words to that effect had been inserted in them (a). Thus, a woman who married in England, and afterwards married abroad during her husband's life, was not indictable under the Statute of James I. against bigamy ; for the offence was committed out of the kingdom, and the Act did Dot in express terms extend its prohibition to subjects abroad (?/). [So, there can be no recovery under a penal statute for an offense committed beyond the territorial jurisdiction of the state. 108 A wager upon a horse-race outside of it is not illegal, 109 and a state law con- cerning boats and vessels is limited to such as are used in navigating the waters of the state. 110 So, a contract entered into on Sunday, in another state, cannot be declared void except upon proof that the law of the state where it was made rendered it so. 111 Equally well settled is the principle that the power of taxation, however vast in its character and searching in its extent, is necessarily limited to subjects within the jurisdiction of the state ; lia i. e., to persons and property within the same. 113 An act conferring powers upon married women applies only to those who are resident and carrying on business in the state. 114 ] The 5 & G Will. 4, c. 63, which prohibits the sale of liquids otherwise than by its, and declaring their effect ■within the same, sec Chandler v. Main, 10 Wis. 398.] (a) Pi r Pollock, C. B., in Rosseter v. Cahlmann, 8 Ex. 3G1; and per Cur. in The Amalia, 1 Moo. X. S. 471. [A detailed examination of the numerous decisions that apply this principle and define the precise limits of ils operation, belongs to a work upon the Conflict of Laws. What follows above may be regard- ed merely as illustrative.] (b) 1 Jac. 1, c. 11; 1 Hale P. C. 693. 108 Peterson v. Walsh, 1 Daly (N.Y.) 182. 109 Ross v. Green, 4 Hair. (Del.) 308. 110 Noble v. The St. Anthony, 18 Mo. 261;Twitchellv. The Missouri, Id. -1 1-'. And sec, as to the right to seize liquors in transit through a stale: State v. Cobaugh, 7S Mr, 401. 111 Adams v. Gay, 19 Vt. 358. 112 Com'th v. Standard Oil Co., 101 Pa. St. 119, at ]». 145, per Pax- sou, .1., citing State Tax on Foreign held Bonds, 15 Wall. 319; McCul- lochv. State, 4 Wheat. 316; Maltby v. R. R. Co., 52 Pa. St. 140. 113 Cleveland, etc., R. R, Co., v. Pennsylvania, 15 Wall. 300. Real estate is property within the state : see posl J3 L74; but personal prop- erty of, such as debt owing to, a Hon resident, thougb by residents, has no situs independent of the domicile of the owner: Kittland v. Ilotchkiss. 100 V. S. 491. But see Mich., etc., R. R. Co. v. Slack, Id. 595; U. s. v. Erie Railway, 106 Id. 327. And see as to money bwingby, and evidenced by bonds of, a cor- poration of the state: Maltby v. R. R. Co., supra, disregarding the con- stitutional quest ton involved. 114 Waldron v. Ritchings, 9 Abb. Pr. X. S. (X. r.) 359. And see Hill v. Wright, 129 Mass. 296. As to di voice laws, see Addenda. 236 EXCESS OF POWERS, ETC. [§ 170 imperial measure, would not be considered as affecting a contract between British subjects for the sale of palm oil to be measured and delivered on the coast of Africa (a). A different construction would have involved the absurd sup- position that the Legislature intended that English subjects should cany English measures abroad (b) ; besides setting aside, by a side-wind, the general principle that the validity of a contract is determined by the law of the place of its performance. Under that general principle, any statute which regulated the formalities and ceremonials of marriage, would, in general, be limited similarly in effect to the terri- torial jurisdiction of Parliament (c). § 170. Exceptions. — But a different intention may be readily collected from the nature of the enactment. The whole aim and object of the Royal Marriage Act (12 Geo. 3, c. 11), for instance, which was, according to the preamble, to guard against members of the royal family marrying without the consent of the sovereign, and which makes null and void the marriage of every descendant of George II. without the consent of the reigning sovereign, would have been defeated, if a marriage of such a descendant in some place out of the British dominions had not fallen within it. It was accordingly held that the Statute imposed an incapacity, which attached to the person and followed him all over the world (d) ; though the marriage were valid according to the law of the country where it was cele- brated 0). So, the 5 & 6 Will. 4, c. 54, which declared " all marriages between persons within the prohibited degrees" (a) Rosseter v. Caklmann, 8 Ex. expressly, it can ordinarily relate 361. only to the laws of the government (b) Per Parke, B., Id. making suck reference: Houston (c) Scrimskirc v. Scrimshire, 2 v. Moore, 5 Wheat. 1, 42 ; and Ike Hagg. Cons. 371, Story, Confl. L., U. S., in passing a statute devolv- §121. [A. state statute relating to ing upon any officers particular crimes and punishments is not powcis or duties must, in the applicable to crimes committed by absence of any expressions to the Indians against each other, while contrary, be considered as referring living in their tribal relations, tke to their own officers alone: lie tribe being recognized and treated Bruni, 1 Barb. (N. Y.) 187, 201).]* as suck by the- federal government: (d) Tke Sussex Peerage, 11 CI. *fc State v. McKenney, 18 Nev. 1S2. F. 85. So, whenever in tke statutes of any (c) Swift v. Swift, 3 Knapp, government a general reference is 257. made to law, either implicitly or * See Addenda. g 171] i..\« ESS OF POWERS, ETO. 237 null and void, was held to create a personal incapacity in all British subjects domiciled iu the United Kingdom, though married in a country where such marriages :ire valid {a). Where an Englishman, after marrying an Englishwoman in England, became domiciled in America, it was held that lie continued subject to the English Divorce Act (h). § 171. Presumption against Intent to Exceed Legislative Func- tions and Powers. Natural Laws. — [It must, however, be pre- sumed, not only that the Legislature does not intend to exceed its territorial jurisdiction, but that it does nol mean to travel beyond its legitimate functions generally. It is ;i truism to say that the Legislature cannot alter the course "I nature." 5 But that it does not intend to do such a thing, i- a presumption which may be important in the construction of a statute. "It is beyond even the power of the Legis- lature" it was said in one case, 110 " to make that a party wall which is not a party wall. No doubt, they might have made provisions to the effect that that which is not a party wall, shall, for the purpose of a particular act. of Parliament, be deemed a party wall ; but they cannot make what is not a party wall a party wall any more than they can make a square a circle;" and accordingly certain rights were conceded to one of the parties interested in the wall in question, which had been rebuilt under the act and treated as though it were a party (a) Brook v. Brook, 27 L. J. Ch. C. B. JST. S. 861 ; if not in every other 401; 9 II. L. 193. See Story, part of the world also: See per Confl. L., § 86, and also §100. Bramwell, B., 29 L. J. C. P. 352 ■ ip) Deck v. Deck, 29 L. J. P. though it was not in express terms 31. & A. 129; see Bond v. Bond, declared to be applicable abroad. Id. 143. This wider effect has As the Courts of British Colonics been given even to a criminal stat- were empowered by Act of Parlia- ute, where such must have been mcut to punish certain offences manifestly its intention. The 5 committed at sea with, among Geo. 4, c. 113, which made it other things, transportation, the felony for " any persons " to deal Act which abolished transporta- in slaves, or to transport them, or tion and substituted penal eervi- equip vessels for their transport, tude, was held to extend to the was held to apply to British sub- Colonics, though it made no men- jects committing any such offences tion of them : 12 A: 13 Vict. c. 96 ; on the coast of Africa, the notori- 20 & 21 Vict. c. 3; R. v. Mount, ous scene of the crimes which it L. R P. ( . 283. was the object of the Act to 115 Crow v. Ramse3 r , Sir T. suppress : R. v. Zulueta, 1 Car. & Jones, at p. 12. K. 215; Santos v. Illidge, 6 C. B. »« Weston v. Arnold, L. R. 8 N. S. 841, 28 L. J. 317 ; overruled Ch. 10S4, 1089. on another point, 29 L. J. 348, 8 1 23S EXCESS OF POWERS, ETC. [§§ 172, 173 Avail, entirely inconsistent with that assumption. So, in the construction of the Pennsylvania married woman's aet of 1848 the Supreme Court of that state declared : "It is a radical mistake to suppose that the act intended to convert the wife into a feme sole, so far as relates to her property. That is impossible while she is to continue to discharge the duties oi a wife ;' ,n7 and accordingly certain powers were held not to be conferred by the general language of the act which were deemed inconsistent with the existence and incidents of that relation. So again, in construing an act which conferred legitimacy upon illegitimate children whose parents subse- quently intermarried so as to render such children capable of inheriting from an ancestor to the same extent as if born m lawful wedlock, whilst it was held that this was within the power of the Legislature, it was said to be " equally true that it is not possible for any Legislature to make that a fact whicl is not a fact ;" and consequently one born out of lawful wed- lock, but legitimated under that act, could not, by virtue of it, take by purchase under a limitation in a prior deed of trust to " lawfully begotten " children. 118 § 172. Presumption against Invasion of Judicial Functions. — [Nor, ordinarily, will the Legislature be presumed to intend a departure from its own and an invasion of the judiciary's proper functions, by a declaratory act contrary to the con- struction already put by the courts upon the law thus explained, so as to make the new construction declared appli- cable to any but future cases. 119 § 173. Presumption against Intent to Bind Future Legislatures. — [Nor yet, can the Legislature be presumed to intend an ex- cessive assumption of power, such as would be involved in a design to bind a future Legislature. 120 Consequently, the i" Bear's Adm'r v. Bear, 33 Pa. (Ky.) 37 ; Gilleland v. Schuyler, !) St 525 5 9 8 Kan. 509 ; Files v. Fuller, 44 Ark. iis Edwards' App., 108 Pa. St. 273. Any departure, by a subse- 2g;> 2!)(). quent Legislature from ;i rule 119 ~g (Je ^,3 subject more fully enacted by a prior one operates na discussed, posl §§ 291-293. an implied repeal thereof: see Kul- 120 This cannol he done, except logg v. Oshkosh, 14 Wis. 623 ; by an act which is, in effect, a Brightman v. Kirner, 22 Id. 54. contract : State v. Oskins, 2S [nd. Wall v. State, 2:5 lud. 150; intra, n. 369 • Swift v. Newport, 7 Bush 123. Sec Addenda. I 74 I EXCESS OF POWERS, I l' . 239' word " forever," in a statute, not amounting to ;i contra' to be understood as meaning simply until changed by law." So the provision in a general repealing act, that " no offence com in it ted or penalty incurred previous to the time when an}' statutory provision shall be repealed, shall be affected by such repeal," was construed as relating solely to the acts repealed by that act, and to have no respect to subsequent legislation, it being held to be beyond the power of the Legislature to declare, in advance, the intent of subsequent legislation or its effect upon existing statutes. 198 And a provision restricting counties, etc., from issuing bonds in aid of the construction of a railroad " by virtue of the authority of any other law of this state," was held not to refer to any future enactment § 174. Presumption against Violation of International Law. Treaties. —Under the same general presumption that the Legislature does not intend to exceed its jurisdiction, every statute is to be so interpreted and applied, as far as its lan- guage admits, as not to be inconsistent with the comity ol nations, or with the established rules of international law (a). If, therefore, it designs to effectuate any such object, it must express its intention with irresistible clearness, to induce a Court to believe that it entertained it ; for if any other con- struction is possible, it would be adopted, in order to avoid 121 See Case}- v. llarued, 5 Iowa, 1. Hence a general act providing a method for the change of county scats is not repealed by a special and temporary act for that pur- pose relating to a single county, although the latter declared that the place selected under it should, forever, be the county seat thereof: Ibid. Mongeon v. People, 55 N. Y. 613. liven a general act saving actions, etc., under repealed stat- utes is, in Files v. Fuller, II Ark. ;27:S, 280, said to have very little importance save in hermeneutics, no Legislature having the power to prescribe to conns rules of inter- pretation, or to fix as to future Legislatures any limits of power as to 1 he effect of I heir action ; whilst, on the other hand, the retention oi such a statute by a subsequent Leg- islature is admitted to be persuasive that that Legislature meant to act in harmony with it. See§484,n. ">01c8on v. It. It. Co., 36 Wis 383. The passage of any subse- quent statute conflicting with it, would repeal it pro tanto: Had. (a) Per Maule, J., in Leroux v Brown, 12 ('. B. 801, 22 L. .1. C. P. '■'> ; Bluntschli, Voelierrecht, s. 847; per Dr. Lushington in The Zollverein, Swab. 98, and The Annapoli ;. Lush. 295. [As to the state- of i he CTnion, " while rec i nizing the central federal authority, resulting from the Constitution of the United States, they hold in regard to each other, with the exception of the c ises governed by thai instrument, the position of independent and foreign powers:" Sedgw. p. 00.] 240 EA' ESS OF POWJ RS 3 1 TC. [§ 174 imputing such an intention to the Legislature (a). All general term? must be narrowed in construction to avoid it (I). For instance, although foreigners are subject to the crim- inal law of the country in which they commit any breach of it, and also, for most purposes to its civil jurisdiction, a foreign sovereign, an ambassador, the troops of a foreign nation, and its public property are, by the law of nations, not subject to them(c), and statutes would be read as tacitly embodying this rule. So, it is an admitted principle of public law, that, except as regards pirates jure gentium, and, perhaps, nomadic races and savages who have no political organization () Selkrig v. Davies, 2 Rose, delivery, represents him: (Jar :;il 2 Dow. 250; Cockerell v. braoht v. Com'th, 96 Pa. Si. 449: Dickens 3 Moo. P. C. 133. See it was held in State v. Aschcr, 54 also Sill v. Worswick, 1 II. Bl. Conn. 229, Park, C. J., diss., that a 005; Phillips v. Hunter, Id. 402; Connecticut act forbidding all per- Huntcr v. Potts, 4 T. It. 182; Re sons without license to Bell intoxi- Blithman, L. R. 1 Eq. 23 ; Preke eating liquors "by sample, or v. Carbery, 16 Eq. 401; Waite v. soliciting or procuring orders, was Bingley, 21 Ch. D. 074; Story, violated by a contract, made in Coiill. L., §§ 428, 551. &c. Connecticut by a traveling n gent of (c) And see Hart v. llerwig, L. a linn of another state, lor the sale R. 8 Ch. 860. of liquors to be delivered in tin; \d) Story, Confl. L., § 376. [See latter. Compare, however, Gar- ante, note 113.] bracht v. Com'th, supra; and 16 §454] 242 EXCESS OF POWERS, ETC. [§ 175 foreigner, or even a British subject domiciled abroad, though the property was in England (a). But they would affect personal property abroad, if the deceased was domiciled in England, though a foreigner (J). So, under the Pennsyl- vania act Imposing a collateral inheritance tax upon all estates passing from any person who may die seized or possessed of such estate, being within the commonwealth, by will or under the intestate laws, it was held, that, when neither the personal property nor the domicile of its owner, though born a citizen of Pennsylvania, but settled elsewhere, is within the state at the time of his death, it is not subject to the duty, although he expressed a desire, complied with by his executor, to he buried in the land of his birth. 125 Nor is personal property, e. g., bonds, deposited by one who is a citizen of another state and domiciled there, with a trust company in Pennsylvania, liable to the tax." 1 But the per- sonaltv of a citizen of Pennsylvania, derived either from within or without the state, is liable. 1 " 7 Not so, however, his real estate situated in another state. 128 ] § 175. It is hardly necessary to add, however, that, if the language of an Act of Parliament, unambiguously and without reasonably admitting of any other meaning, applies to foreigners abroad, or is otherwise in conflict with any principle of international law, the Courts must obey and administer it as it stands, whatever may be the responsibility incurred by the nation to foreign powers in executing such a law (c). [Even in the case of treaties, (a) In re Bruce, 2 Cr. & J. 436 ; J. Ch. 452. Arnold v. Arnold, 2 M. & Gr. 256; (b) Atty.-Genl. v. Napier, 6 Ex. Thomson v. The Adv.-Genl., 12 217. CI & F. 1 ; Wallace v. The Attv.- '"Hood's Est., 21 Pa. St. 106. Genl., L. R. 1 Ch. 1 ; Hamilton v. 126 Orcutt's App., 97 Pa. St. 179: Dallas, 1 Ch. D. 257. ■ See also Comp. Com'th v. Smith, 5 Id. 142. Udney v. East India Co., 13 C. B. m Short's Est., 16 Pa. St. 63. 733, 22 L. J. 260 ; Eiichsen v. m Drayton's App., 61 Pa. St. Last, 50 and 51 L. J. Q. B. 570 and 172 ; Com'th v. Coleman's Adm'r, 86 ; Cesena Sulphur Co. v. Nichol- 52 Id. 468 ; nor his personalty in son, 1 Ex. D. 428 ; Calcutta -lute another State, his debts there ex- Co. v. Nicholson, Id.; Sully v. ceeding it in amount : lb. Atty.-Genl., 5 11. & N. 710, 29 L. (c) Per Cur. in The Marianna J. 464 ; Be Atkinson, 21 Ch. D. Flora, 11 Wheat. 40 ; The Zoll- 100. Comp. the Attv. Genl. v. verein, Swab. 96 ; The Johannes, Campbell, L. It. 5 II. L. 524 ; lie Id. 188. 30 L. J. P. M. & A. 94 ; Cigala's Settlement, 7 Ch. I). 351, The Amalia, 32 L. J. P. M. & A. 47 L. J. 166 ; Be Atkinson, 51 L. 193. As to the Hovering Acts (39 § 17G] EXCESS OF POWEE8, ETC 243 although laws are to bo construed, if it be possible to do so without violence to their language, so to conform with the provisions of such, 1 " jet the construction which the Legislature puts upon them \>\ statute is binding upon the courts. "However individual judges mighl construe a treaty, it is the duty of the court to conform itself to the will of the Legislature, if that will has been clearly expressed ; the courts cannot pronounce the course of their own nation erroneous. 130 ] § 17t>. Rights, etc., of Foreigners. Remedies. — It may be added, in connection with this topic, that, as regards the question how far statutes which confer exceptional rigfits or privileges are to be construed as extending to foreigners abroad, the authorities are less clear. It has been said, indeed, that when personal rights are conferred, and persons tilling any character of which foreigners are capable are mentioned, foreigners would be comprehended in the stat- ute (a). On the other hand, it has been laid down that, in general, statutes must be understood as applying to those only who owe obedience to the legislature which enacts them, and whose interests it is the dutv of that legislature to protect ; that is, its own subjects, including in that expression, not only natural born and naturalized subjects, but also all persons actually within its territorial jurisdic- tion; but that as regards aliens resident abroad, the legisla- ture has no concern to protect their interests, any more than it has a legitimate power to control their rights (7>). In this view, it would be presumed, in interpreting a statute, that the legislature did not intend to legislate either as to their & 40 Vict. c. 179, embodying the of Indians by State legislation : 16 & 17 Viet. s. 212), see Le Louis, Fellows v. Denniston, 23 N. Y. 2Dods. 245; Church v. Hubbard, 420. 2 Cranch, 187. See also 2 & 3 (a) Per Maule, J., in Jcfferys v. Vict. c. i • Soosey, 4 II. L. 895. 1:9 U. S. v. 43 gal's of Whisky, (b) See per Jems. C. J., in Jef- 108 U. S. 491. ferys v. Boosey, 4 II. L. 946; per iso Foster v. Neilson, 2 Pet. 258, Lord Cranworth, Id. 95.'.; per 307. And see The Cherokee To- Wood, V. C, iu Cope v. Doherty, bacco, 11 Wall. 617. But that 4 K. & J. 357, 27 L. J. Ch. 601 ; rights acquired by treaty cannot Comp. per Lord Westbury in be affected by Acts of Congress, Routledge v. Low, L. R. 3 H. L. see Wilson v. Wall, 34 Alu. 288 ; 100. S. C. 6 Wall. 83 ; nor treaty rights 244 I XCE88 OF POWERS, ETC. [§ 176 rights or liabilities ; and to warrant a different conclusion, the words of the statute ought to be express, or the context of it very clear (a). On this principle, mainly, it was held that the Act of Anne, which gave a copyright of fourteen years to "the author of any work," did not apply to a for- eign author resident abroad (b). The decision would prob ably have been different if the author had been in England when his work was published (c). The later Act, 5 & 6 Vict. c. 45, which does not appear to differ materially, as regards this question, from that of Anne, was held to pro- tect a foreign author who was in the British dominions at the time of publication (d). It was held also that a for- eigner was entitled to maintenance, and to gain a settlement under the poor laws (n which the clause could operate (a). [So a saving clause keeping in effect all acts regulating fees, etc., of officers was held not to apply to one taking away fees entirely."] The illustrations given by Coke are cases of conveyance of land ; and the rule as regards the construction of repug- nant passages in a conveyance by deed has always been that the earlier of them prevails (Jj). But it may be questioned whether there is any solid ground for this distinction between a saving clause and a proviso in a statute. ["There does not appear 14 to be any real distinction between a saving clause and a proviso. Each of them is . . . ' something engrafted on a preceding enactment.' 18 Each is ' merely an exception of a special thing out of the general things mentioned' in the statute. 19 Each is a limitation or exception to a grant made or authority conferred, the effect of which is to declare that the one shall not operate or the other be exercised un- less in the case provided. 11 The office of each is to except some particular case from a general principle where from peculiar circumstances attending the case there would be some hardship if it were not excepted ; 18 to qualify, restrain, or otherwise modify the general language of an enacting clause, or to exclude some possible ground of misinterpreta- tion that might exist if cases which the Legislature did not mean to include, were brought within the statute." 19 And as to a proviso, it has been said that its function is that of limiting the language of the law-maker, not of enlarging or (a) Plowd. 565 ; see Savings In- " Cit. Voorhees v. Bank of U. S., Btitution v. Makin, 23 Maine, 370. 10 Pet. 449, at p. 471. 13 Webb v. Baird, 6 Ind. 13. :8 Cit. Huidekoper's Lessee v. (S) Co. Litt. 113 ; Shep. Touchst. Burrus, 1 Wash, at p. 119. 81, Hard. 94; Furnivall v. Coombes, 19 Cit. Wayman v. Southard, 10 5 M. & Gr. 736. Wheat, at p. 30 ; Minis v. U. S., 14 Quoted from Wilb., at p. 301. 15 Pet. at p. 445. And see Sav. 16 Cit. 11. v. Taunton. St. James, B'ic v. TJ. S., 19 Wall. 227 ; Boon 9 B. & C. at p. 836, per Bayley, J. v. Juliet, 2 111. 258 ; Ilimsen v. 1G Cit. Halliswell v. Corp. of Nav. Co., 32 Pa. St. 153, 157; Bridgewater, 2 Anderson, at p. Bedgw., at p. 49. But see Bish., 192. Wr. L., §§59, 65. § 185] pkovisos, etc. 255 extending the act or section of which it is a part," and its effect that of negativing an authority granted beyond its prescribed and clearly defined limits. 21 § 185. [It would seem logically to follow from this view, that, where the proviso or saving clause exceeds that func- tion, — viz., that of creating an exception of some special thing from general language, or excluding some possible ground of misapprehension, it must fail to be of any valid- ity. Accordingly, it has been held that a proviso, as well as a saving clause, which is repugnant to the enacting clause or purview 23 is to be held void. 23 On the other hand it is maintained, that] when the proviso appended to the enact- ing part is repugnant to it > it unquestionably repeals the enacting part (a). The later of two passages in a statute, being the expression of the later intention, should prevail over the earlier ; as it unquestionably would, if it were embodied in a separate Act. 24 [But it has been forcibly pointed out, by an eminent writer upon this subject, 25 that since the several parts of a statute are enacted simul- taneously, and so appear by the legislative records, there is, in reason, no room for the presumption upon which this rule professes to be based ; and that the rule now ought to be that the location of a clause ought not to have the impor- tance attached to it which it formerly had ; so that an irrec- oncilable conflict between two clauses " may vitiate the whole, or the part to which the clauses relate, or the one or the other may give way according to the nature of the 20 Be Webb, 24 How. Pr. (N. Y.) Comm.* 463 ; though that principle 247. is held not to apply to acts con- 21 Comm'rs of Kensington v. stituting private corporations, any Keith, 2 Pa. St. 218. ambiguity in such acts being re- 22 What comes within the " pur- solved against the corporation, view of a statute, means the enact- in favor of the public : Dugan v. ing part, or body, of the same, as Bridge Co., supra, distinguished from the preamble, (a) Atty.-Genl. v. Chelsea saving clause and proviso :" The Waterworks, Fitzg. 19. [Far- San Pedro, 2 Wheat. 132 ; Sedgw. Biers' B'k v. Hale, 59 N. Y. 53 ; p. 45. Townsend v. Brown, 24 N. J. L. 23 See Mason v. Boom Co., 3 80; Bish., Wr. L., § 65.] Wall. Jr. 252; Dusran v. Bridge Co., 24 See Farmers' B'k v. Hale, 27 Pa. St. 303, 309 ; Exp. Mayor's supra. Ct., 4 Clark (Pa.) 315 ; 1 Kent. 25 See Bish., Wr. L., § 63. 256 provisos, etc. [§ 186 case." 38 And " the true principle undoubtedly is, that the sound interpretation and meaning of a statute, on a view of the enacting clause and proviso, taken and construed together, is to prevail. If the principal object of the act can be accomplished, and stand under the restriction of the proviso, the same is not to be held void for repugnancy."" Nor, of course, if a reasonable operation can be given to the proviso consistent with the principal object of the act as gathered from its purview, can there beany question of a repeal of the latter by the former; and in construing stat- utes, the terms of a proviso may be limited by the general scope of the enacting clause, to avoid repugnancy. 28 Thus, a proviso may have the effect of suspending, for a time, the operation of a statute and preserving in force another which would be repealed by it immediately ; as, where an act,, declared to be in effect from the date of its passage, changed the time for holding a certain court in a certain district, but contained a proviso that the first term should be held in a particular county, which, under certain other pro- visions of the act, could not be done until six months after the passage of the act, it was held that the previously exist- ing law was thereby preserved in force until such term could be held in the county designated. 29 § ISO. Construction of Provisos, etc.— [From a consideration of the office and function of a proviso,* it would seem to follow that it can have no existence, separate and apart from the provision which it is designed to limit. " If it was not intended to restrain the general clause, it was a nullity." 30 Upon the repeal of the act, it falls, and does not continue in force as an independent enactment. 31 Where it follows and restricts an enacting clause general in its scope and language, 26 Ibid. construction of an act amending 21 Folmer's App., 87 Pa. St. 133, the charter of a city, but provid- 137 ; 1 Kent, Comm. *4G3, note b. ing that certain sections should And see Renner v. Bennett, 21 not take effect until approved by Ohio St. 431. the corporation. 28 Treas'r of Vermont v. Clark, so Ihmsen v. Nav. Co., 32 Pa.. 19 Vt. 129. AndseeSav. [nstitu- St. 153, 157. But see Bish., Wr. tion v. Makin, 23 Me. 360. L., § 65. 29 Graves v. State, 15 Tex. App. 31 Church v. Stadler, 10 Iud. 228. And see Clarke v. Rochester, 463. 24 Barb. (N. Y.) 440, for similar § 186] PROVISOS, ETC. 257 it is to be strictly construed and limited to the objects fairly within its terms. M Consequently, an exception, from the general provisions of an act exempting property from exe- cution, of cases of claims for wages of " laborers or serv- ants," would not include those of persons occupying the position of book-keeper, or the like. 33 Nor would an excep- tion from the benefits of the statute of limitations of notes, bills, or other evidences of debt issued by any bank or other moneyed corporation, cover notes of a railroad company authorized by law to be circulated as money. 34 Moreover, a proviso is always to be construed with reference to the immediately preceding parts of the clause to which it is attached 35 and limits only the passage to which it is appended, and not the whole section or act, 36 or, at least, only the section with which it is incorporated. 87 Thus, where a section of an act ended with a proviso that no debtor should be imprisoned on any process for more than twelve months for any debt incurred before the filing of his peti- tion, in case a final order for protection from process was refused, it was held that this did not refer to all cases where the final order was refused, but only to such as were sug- gested in the preceding part of the section ; 3S and where the third section of an act gave a court stenographer a compen- sation of $10 per day spent in court taking notes, with a proviso, that the whole compensation, in counties of a certain number of inhabitants, should not exceed $1200 per annum, and the fourth section required him to write out the notes in long hand, when ordered by the court to do so, at a certain. 32 U. S. v. Dickson, 15 Pet. 141, And a clause saving rights exist- 165; Epps v. Epps, 17 111. 190; ing at the "passage" of an act Roberts v. Yarboro, 41 Tex. 449. will protect rights existing at the But it is said, that, in a criminal time of its going into _ effect: statute, an exception or proviso Rogers v. Vass, 6 Iowa, 405. will be liberally construed in favor 33 Epps v. Epps, supra. Comp. of the defendant: see Bish., Wr. ante, § 99. L-, §g 220, 227, 229 ; and he need 34 Butts v. R. R. Co., 63 Miss, only bring himself within its letter, 402. to be entitled to its benefit, regard- 35 Wilb., p. 302, eit. Exp. Part- less of its intent: ib. § 229. And ington, Q. B. 049, at p. 053. so, provisos and saving clauses 3ti Ibid.; Spring v. Collector, 78 protecting acts done under a stat- 111. 101. ute repealed are to be liberally con- 31 Lehigh Co. v. Meye., 102 Pa., strued : Foster v. Pritchard, 2 H. St. 479. & N. 151 ; 40 E. L. & Eq. R. 440. 38 Exp. Partington, supra. 17 258 provisos, etc. [§ 186 rate of compensation, it was held that the effect of the proviso was limited to the compensation and services required by the third section, and that, if the compensation for servicer of the kind designated in the fourth section, together with the per diem allowance made by the third, exceeded $1200, the county was liable therefor. 39 But it is said'" that the mere fact "that a proviso was printed as part 'of any one section did not, at the time when statutes were not divided into sections upon the roll, limit the effect or construction of the proviso." 'The question whether a proviso in the whole or in part relates to and qualifies, restrains or operates upon the immediately preceding pro- visions only of the statute, or whether it must be taken to extend in the whole or in part to all the preceding matters contained in the statute, must depend, I think, upon its words and import, and not upon the division into sections that may be made for convenience of reference in the printed copies of the statute.' "" Remembering the slight impor- tance that is to be attached to the mere arbitrary divisions of statutes by the Legislature itself, 45 this rule, it seems, must still, with proper limits and caution as to the application of it, be deemed a reasonable one. Thus, where the first sec- tion of an act gave to registers, etc., of the land office the risrht to charge certain fees for certain services; the next gave the right to registers, in or out of office, to be com- pensated by the United States for similar past services at the same rate ; and at the end of this section came a proviso that no register or receiver should receive for his services during every year a greater compensation than the maximum then allowed by law, it was held that the proviso applied to the whole act and limited the compensation for future services as well as past.*" Conversely, a proviso in the first section of an act. that it should not apply to estates in process of settlement, was held to apply equally to the second section of the act. repealing the existing law." 1 Lehigh Co. v. Meyer, supra. 43 Sec ante. §§ 61, 69-70. " will... pp. 302-303. M U. 8. v. Babbit, I Black 55. "Cit. R. v. Threlkeld, 4 B. & ** Mechanics', etc., B'k's App., ^.d., at pp. 235, 236; Wells v. Ig- 81 Conn. 63. See Foster v. Prit- ijulden, 3 B. & C. at p. 189. chard, supra; Rogers v. Vass, 1 U. v. Newark, :; B.&C, ;it p. supra. ; |, , v Ilolroyd, J. §§ 1ST, 188] IMPLIED REPEAL. 259 § 187. Repugnant Acts passed at Different Sessions. — [lhe same rule, which, between two irreconcilable passages or provisions in the same statute, gives validity to the later one, requires, that, where two statutes are irreconcilable and mutually repugnant, the one later in date or order should be held to repeal the earlier one. 48 § 188. Repugnant Acts passed at Same Session. — [Not only statutes passed at different sessions of the Legislature may thus affect each other, but a repeal by implication has been effected where two inconsistent enactments have been passed at the same session ; 47 even while the earlier act was in its progress to become a law, but before it had become so by the executive approval ; 48 it being said that the parliamentary rule, that an act shall not be repealed at the session at which it was passed, has no reference to repeal by implication. 4 * But as has been seen, statutes enacted at the same session 48 See IF. S. v. Irwin, 5 McLean 178; Morlot v. Lawrence, 1 Blatchf., 608; Powers v. Barney, 5 Id. 202; Union Iron Co. v. Pierce, 4 Biss. 827; U. S. v. Barr, 4 Sawyer, 254; West v. Pine, 4 Wash. 691; Ogden v. Witherspoon, 2 Hayw. 227; Kingsland v. Palmer, 52 N. Y. 83; Lyddv v. Long Island City, 104 Id. 218; Bowi-n v. Lease, 5 Hill (N. Y.) 221; Rochester v. Barnes, 26 Barb. (N. Y.) 657; People v. New York, 32 Id. 102; Excelsior, etc., Co. v. Embury, 67 Id. 261; Pease v. Whitney, 5 Mass. 380; New London, etc.. R, It. Co. v. R. R. Co., 102 Id. 386; West Chicago Park Comm'rs. v. Brenock, 18 111. App. 559; Korah v. Ottawa, 32111. 121; Sullivan v. People, 15 Id. 233; Moore v. Moss, 14 Id. 106; Slate v. Smith, 7 Iowa 244; Casey v. Earned, 5 Id. 1; Edgar v. Greer, 8 Id. 394; Kinney v. Mai lory, 3 Ala. 626; George v. Skeates, 19 Id. 738: Commercial B'k v. Chambers, 16 Miss. 9; State v. Blake, 32 N. J. L. 208; Jersey City v. R. R. Co., 20 N. J. Eq. 360; Southwark B'k v. Com'th, 26 Pa. St. 446; Johnston's Est., 33 Pa. St. 511; Com'th v. R. R. Co., 53 Id. 62; People v. Grip- pen, 20 Cal. 677; Exp. Smith, 40 Id. 419; Parrott V. Stevens, 37 Conn. 93; Tieruey v. Dodge, 9 Minn. 166: Cumberland v. Magru- der, 34 Md. 381; Moore v. Vance, 1 Oliio 10; State v. Miskimons, 2 Ind. 440; State v. Youmans, 5 Id. 280 ; Peru, etc., R. R. Co. v. Brad- sliaw, 6 Id. 146; Comm'rs v. Potts, 10 Id. 286; Dowell v. Slate, 58 Id. 333; Swinney v. R, R. Co., 59 Id. 205; Ham v. State, 7 Blackf. (Ind.) 314; McQuilkin v. Doe. 8 Id. 581; Adams v. Ashby, 2 Bibb (Ky.) 96; Maddox v. Graham, 2 Mete. (Ky.) 56; Naz. Lit., etc. , Inst. v. Com'th, 14 B. Mon. (Ky.)266; Eckloff v. District of Columbia, 4 Mackey (1). C.)572; Morrison v. Barksdale, Harp. (S.C.) 101; Byrne v. Stewart, 3 Desau. (S. C.) 135; (State v. Stoll, 2 Rich. N. S. (S. C.) 538; Grant Co. v. Sels, 5 Oreg. 243; Hurst v. Elawn, Id. 275; Thorpe v. School- ing, 7 Nev. 15; Greeley v. Jackson- ville. 17 Fla. 174; Branagau v. Dulaney, 8 Col. 408. 41 R. v. Middlesex Justices, 2 B. & Ad. 818; Johnson v. Byrd. Hempst. 434; Bouia;innou, etc., Ass'u v. Com'th, 98 Pa. St. 54; Atty.-Gen. v. Brown, 1 Wis. 513; People v. Lytic, 1 Idaho, 161. 48 Southw. B'k. v. Com'th, 26 Pa. St, 446. *' 49 Spencer v. State, 5 Ind. 41. 260 IMPLIED REPEAL. [§ 189 1 are to be construed, to a certain extent, us one entire act, and therefore it is said. that, iii order to make a later enactment repeal a former one, passed at the same session, there must he an express declaration, or an absolute inconsist- ency ; : '° that is, there is in such a ease probably a stronger presumption against an intention to repeal, which is unex- pressed, than in the ea>e of statutes passed at different sessions. For. whilst the rule as to the latter is, in general, that, if possible, the construction must be such as to permit both acts to stand, yet " it can hardly be said that there are any absolute rules for determining the question of implied repeal. The question, in every casej is whether the intention of the later act, as ascertained by judicial construction upon all the grounds applicable to it, is to lay down a rule which puts aside the rule provided by the earlier act ; and it is not reasonable, nor do we conceive it to be the law, that the intent of the later act is always to be narrowed down so as, if possible, to preserve the operation of the earlier act. . . We think we are bound to consider the special nature and object of [the particular] kind of legislation [to which the statutes in question belong,] and whether [they] present a ease which stands in the same plane with the statutes to which the doctrine of enforced co-operation has ordi- narily been applied." 61 § 189. Acts passed Same Day. — [Two inconsistent acts passed at precisely the same time must necessarily nullify each other. 02 To escape this result as to statutes passed or approved on the same day, it is the rule that the one later approved may repeal the earlier to the extent of the re- pugnancy lie! ween them ; 53 and especially is such the effect of an act passed the same day with another inconsistent one, but later in number as a chapter of the laws, and being local or particular in its application," and intended to take effect 50 Peyton v. Mosely, 3 T. B. Mob. Fractious of a day may be noticed (Ky.) 77. Sic, as to construction to prevent great mischief or incon- as one act, ^ 4(J. venience : Hampton v. Erenzeller, " Eckloff v. District of Colum- 2 Browne (Pa.) 19. Post, ££ :J89, bia, 4 Mackey (I). C.) 572, j>< r seq., 498, James, J. ' Mead v. Bagnall, 15 Wis. 150; ■ State v. Heidorn, 74 Mo. 410. and see case in next note. But, see Strauss v. Heiss, 48 Md. 292. § 189. § 190] IMPLIED REPEAL. 261 at a later date than the previous more general one. 85 But, of course, the same rule that requires the harmonization of two acts passed the same session, if possible, applies with at least equal force to acts passed on the same day. 56 Thus, where an act provided that deeds should be registered in the probate registry for the county or city where the property was situated, and another, passed the same day, that deeds might be registered in the county registry, it was held that the two acts should be construed together, with the effect of allowing deeds relating to lands in a city to be registered in a county registry. 57 And so where two acts upon the same _ subject were passed on the same day, the one to go into effect immediately, the other, apparently dispensing with most of the matters provided for in the first, to go into effect at a future day, it was held that full effect could be given to both acts without imputing inconsistency to the Legislature. 58 § 190. [As to the question which of two acts is to be regarded as the later, it is said that the date of approval, not that of publication, is controlling in the determina- tion of the Legislative intent, so far as the same depends upon priority of action ; 59 so that the mere fact that a statute, in the authorized publication of laws, precedes another -of a later, or perhaps of the same date, was held ineffec- tual to enable the latter to modify or supersede the former 60 But, as between the date of passage and that of approval, it was held in Pennsylvania, that the fact that the governor's signature was appended to an act which was repealed, in part, by another passed and signed while the first was before him, would not, of course, revive the repealed clause, the repeal being, though only implied and not express, unmistakably intended. 61 " He had no more power to reinstate the abolished section, than he had to make a new law with- out the sanction of the Legislature.'" 02 On the other hand, in 55 Metrop. B'd of Health v. 60 Thomas v. Collins, 58 Mich. Sclimades, 3 Daly (N.Y.) 282. See, 64. however, upon this subject, so far 6: Southwark B'k v. Com'th, 26 as it depends upon the commence- Pa. St. 446 ; such intention being ment of statutes, post, §§ 190, 500. shown from the legislative jour- 56 See ante, § 45. nals. 51 Beale v. Hale, 4 How. 37. 6 - Ibid., at p. 451, per Lewis, 63 Fouke v. Fleming, 13 Md. 392. C. J. 69 Mead v. BagnalL 15 Wis. 156. 2G2 IMPLIED EEPEAL. [§§191,192 Kansas, where a code provided that it should go into effect on June 1, and ;i subsequent act, expressly amenda- tory of the code, declared that the same should go into effect from and after the date of the passage of the amendatory act, the latter being approved on February 10, and the code on February 11, it was held that the act last approved must control, i. e., that the code went into effecl on June l. 03 § 191. Constitutional Requisites as to Repeal Inapplicable to Implied Repeal. — [It may be here observed that the doctrine of implied repeal is not destroyed by constitutional provisions directing certain observances by the Legislature in repealing enactments, e. (/., that repealing acts shall recite the title or substance of the act intended to be repealed ; 64 or restricting acts to a single subject to be expressed in the title. 65 Of course, where an act is passed inconsistent with a former statute, but containing no express repeal of the same, in accordance with constitutional requirements of form, and a few days later another is adopted removing the conflict between the two, the act which would otherwise have operated as a repealing act is unobjectionable on the score of constitutional defect and must be held valid. 68 § 192. Repeal by Unconstitutional Acts. — [On the other hand,. it would seem that no repeal by implication can result from a provision in a subsequent statute when that provision is 63 Elliott v. Lochnane, 1 Kan. the text is tacitly acted upon in an 126. uncountable number of decisions, 64 Home Ins. Co. v. Taxing recognizing implied repeals under Distr., 4 Lea (Tenn.) 644 ; Ballen- similar constitutional provisions, tine v. Pulaski, 15 Id. 633; Poe v. But it may be too broad to say State, 85 Tenn. 495; and see to that, such provisions have no effect same effect : Geisen v. Heiderich, whatever upon the doctrine of im- 104 111. 537; Swartwoul v. Air plied repeal, or its application. It Line Co., 24 Id. 389; Lehman v! may very reasonably be supposed McBride, 15 Ohio St. 573; Spencer thai the exercise of the power v. State, 5 Ind. 41; Branham v. of express repeal being subjected Lange, 16 Id. 497; Anderson v. to such restrictions iu the interest Coni'th, 18 Gratt. (Va.) 295; and of certainly, an intention to cxer- see also Falconer v. Robinson, 16 cise the power of implied repeal Ala. 340. Compare, however, should not be presumed, except in Greeley v. Jacksonville, 17 Fla. the clearest cases. 171. 'The same is true of statutes 65 Geisen v. Heiderich, supra. acting, impliedly, as amendments G6 Morrell v. Fickle, 3 Lea. of others: People v. Mahaney, 13 (Tenn.) 79. Mich. 481. The doctrine stated in §§ 193, 194] IMPLIED KEPEAL. 263 itself devoid of constitutional force. Thus, where the con- stitution requires the subject of an enactment to be indicated in its title, it was held that an act was not to be deemed repealed by a later repugnant one, whose subject-matter, however, on the point of such inconsistency, was germane to nothing in its title." § 193. When Later Act does not Repeal Earlier Repugnant Act. —[The rule that a later act repeals, by implication, that which is inconsistent with it in an. earlier one is, however, but the expression of an intention presumed to be entertained by the Legislature in making the law. As such, it is of course negatived and rendered inoperative by the expression of a contrary intention in the later statute. 88 And if, in passing an act, the Legislature declares that another earlier act is " to have the same effect as if passed after this Act,"— a provis- ion, which, though somewhat anomalous, does not transcend the legislative power, 69 — the position of the two acts, for the purposes of construction, as to the relative effect of one upon repugnant provisions in the other, is reversed ; *. 26 1 IMPLIED REPEAL. [§ 195 enacting one, if it is in conflict with another passed after the first, bnl before the last Act; and therefore does not repeal by implication the intermediate one (a). [And the re-enact- ment, at the .-:inic session of the Legislature, of certain ctions of one act in a subsequent one, providing, except in the re-enacted sections, a different scheme from the first, was held not to work a repeal, by implication, of those sections in the first act; ami a provision in the second act suspending the operation of those sections in it, did not snspend the operation of the same sections in the first act, according to which they were to take effect at once. 71 § 195. Amendments. — [An amendment of a statute may or may not operate as an implied repeal of the original law. If it does not change the same, but merely adds something to it, it is not, in general, a repeal thereof." Where, on the other hand, the amendment changes the old law in its substantial provisions, it must, by necessary implication, re- peal it to the extent to which the new is in conflict with, and repugnant to, the old ;" but not beyond. Thus, where, under a statute fixing the limit of grand larceny at $5 or upwards, an offence was committed consisting in the larceny of $23, and before trial and conviction, an amendatory act was passed changing the limit from $5 to $15 as the minimum to constitute grand larceny, it was held that there was no repeal of the earlier act except as to the limit, — a change which did not affect the case in question, since there never was a time when the larceny of an amount exceeding $15 did not constitute grand larceny under the law. 74 If, however, the amendatory statute covers the entire subject matter of the old law, and is inconsistent with its provisions, it must be held to repeal the same by implication. 75 And even if it is not repugnant in express terms, yet, if it covers (a) Morlsse v. Royal British 37 Mich. 217. A.nd see McRobert Bank, 1 < '. B. N. S. 67, 2(5 J,. .1. v. Washburne, LO Minn. 23, infra. 62 ; per Willes, J., citing Wallace 74 State v. .Miller, 58 Ind. 399, v. Blackwcll, :! Drew. 538; and and accordingly the order of the R. v. Dove, :; 15. & A. 596. lower court quashing the indict- 71 Powers v Shepard, 48 X. Y. ment, on the ground of a repeal of See post, § l!)0. the older act, was held to be error. : - Longlois v. Longlois, 18 Ind. ,8 Pana v. Bowler, 107 U. S. 529; 60. Longlois v. Longlois, 48 Ind. GO. :; Ibid. ; Breitung v. Lindauer, § 196] IMPLIED REPEAL. 205 the whole subject of the amended act, and contains new pro- visions showing it to be intended as a substitute for the same, it will operate as a repeal of it. 70 But an amenda- tory statute should not receive a forced construction so as to make it a repealing statute." And an unconstitutional amendment cannot have the effect of repealing, by mere implication, the original act. 78 § 196. Amendments "so as to read," etc.— [Where an act or portion of an act is amended " so as to read " in a prescribed way, it has been said that the section amended is eutirely repealed and obliterated thereby. 79 It is perfectly clear, that, as to all matters contained in the original enactment, and not incorporated in the amendment, the latter must be held to have the effect of a repeal. 80 But as to the remain- der, i. e., that, which, in the amendatory act, is declared thereafter to be its form and effect, it would seem that even an amendment in the phrase indicated, does not have the effect of a simultaneous repeal and re-enactment, 81 but that of a merger of the original statute, in the new, leaving the old statute no vitality distinct from the new, and of force only as to past transactions, 82 as to which it must be deemed to be continued in force as from the time of its first enactment, 83 whilst, as to new transactions, its whole force rests upon the amendatory statute. 84 So complete, however, is the merger of an act in such an amendment, that the repeal of the amending act is said not to be capable of reviving the original law, but to annihilate the same as effectually as if it ^Breitungv.Lindauer^ Mich. 127; Mosby v. Ins. Co., 31 Gratt. 217; and see Longlois v. Longlois, (Va.) 629; and see Bish., Wr. L., § supra. 15 2a. See Addenda. " Lucas Co. v. Ry. Co., 67 Iowa 81 Burwell v. Tullis, 12 Minn. 541. 572. 78 Exp. Davis, 21 Fed. Rep. 396. 8 ' 2 People v. Supervisors, 67 N. See also State v. Alexander, 9 Ind. Y. 109. 337. But comp. Billings v. Harvey, 83 Moore v. Mausert, 49 N. Y. 6 Cal. 381. 332; Ely v. Holton, 15 N. Y. 595. 19 State v. Andrews, 20 Tex. 230; 84 People v. Supervisors, supra; and see Wilkinson v. Keller, 59 Ely v. Holton, supra. So that, of Ala. 306; Blakemore v. Dolan, 50 course, the amendment could have Ind. 194. no retroactive efficacy : Ibid. ; Mc- 80 Moore v. Mausert, 49 N. Y. Geehan v. Burke, 37 La. An. 156; 332; People v. Supervisors, 67 Id. Bish., Xfr. L.,£ 152a. ButseeBur- 109; State v. Ingeisoll, 17 Wis. well v. Tullis, 12 Minn. 572. And 631; Goodno v. Oshkosh, 31 Wis. see post, § 294. 2GC IMPLIED REPEAL. [§§197-199 also were expressly repealed ; 85 so complete, that the word "hereafter" used in such an amendment refers to the date of the passage of the original act ; 88 and that an act repealing "section 6" of a certain act, which had been amended so that a new section stood in the place of the original section 6, repealed section 6 as amended. 87 A provision enacted "in lieu " of another was held to repeal the same. 88 ] § 197. Repugnancy in Schedule — Where a passage in a schedule appended to a statute was repugnant to one in the body of the statute, the latter was held to prevail (a). § 19S. Implied Repeal by Negative Statutes. — When the later of the two general enactments is couched in negative terms, it is difficult to avoid the inference that the earlier one is impliedly repealed by it. For instance, if a general Act exempts from licensing regulations the sale of a certain kind of beer, and a subsequent one enacts that " no beer " shall be sold without a license, it would obviously be impossible to save the former from the repeal implied in the latter (5). [And where a statute provides, that, thereafter, " no corpo- ration " should interpose the defence of usury, it is clear that the effect of such an enactment is a repeal of the usury laws as to corporations. 88 ] § 199. Implied Negative in Affirmative Statutes. — But even when the later statute is in the affirmative, it is often found to involve that negative which makes it fatal to the earlier 85 People v. Supervisors, supra; 87 Greer v. State, 22 Tex. 588. 8. Goodno v. Oshkosh, 31 Wis. 127; P. State v. Hanson, 73 Mo. 88; and see post, §8 475-477. Kamerick v. Castleman, 21 Mo. 86 Moore v. Mausert, supra. See App. 587. to same effect as to "hereinbefore 88 <;oss]er v. Goodrich, 3 Clif. provided": McKibben v. Lester, 9 71; Steamb. Co. v. Collector, 18 Ohio St. 627. But see People v. Wall. 478. Wayne Circ. Judge, 37 Mich. 287, («) R. v. Baines, 12 A. & E. 227; that "heretofore" in an amend- Allen v. Flicker, 10 A. & E. 640, inent adopted 22 years after the per Patteson, J. ; R. v. Russell, 13 passage of the original act- provid- Q. B. 237; Dean v. Green, L. R. ing that actions on judgments fore- 8 P. D.89, per Lord Penzance, See tofon rendered should be barred in Clarke v. Grant, 8 Ex. 252, 22 C. 10 years after entry thereof, means J. . 67. [See ante, § 71.1 (b) Read v. Story. 30 L. J. M. C. before the passage of the amend- ment, it being absurd to confine 110, 6 H. & N. 423; remedied by the provision to judgments ren- 21 A: 25 Vict. c. 21, s. 3. dered before the passage of the orig- 89 Balleston Spa B'k v. Marino inal act. B'k, 16 Wis. 120. § 199] IMPLIED REPEAL. 267 enactment (a). [Thus, if a subsequent statute requires the same and more than a former one prescribed, this is neces- sarily a repeal of the earlier act, so far as the later act ren- ders more necessary than the earlier one prescribed. 90 And vice versa,] if an Act requires that a juror shall have twenty pounds a year, and a new one enacts that he shall have twent}' marks, the latter necessarily implies, on pain of being itself inoperative, that the earlier qualification shall not be neces- sary, and thus repeals the first Act (5). [A grant of author- ity by the Legislature to county commissioners to create a debt and provide for the payment of interest thereon, was held to be an enlargement of their power to assess taxes to meet the demand, and as implying a repeal of any conflict- ing statutory limitation. 91 ] Where an act of Charles II. enabled two justices of the peace, " whereof one to be of the quorum," to remove any person likely to be chargeable to the parish in which he comes to inhabit; and another, after- reciting this provision, repealed it, and enacted that no per- son should be removable until he became chargeable, in which case " two justices of the peace " were empowered to remove him ; it was held that the later Act dispensed with the qualification of being of the quorum (c). The provision of the 43 Eliz., which gave an appeal without any limits as to time against overseers' accounts, was impliedly repealed by a subsequent Act, which gave power to appeal to the next Quarter Sessions (d). [So, a statute giving a right of appeal generally is repealed by one giving a right of appeal in cases involving more than $5. ea ] The Nuisances Eemoval Act of 1848, in providing that the costs of obtaining and executing an order of justice under the Act against an owner of premises should be recoverable in the County Court, impliedly repealed, as regards such cases, the enactment of the County Court Act, that those Courts should not take (a) Bac. Ab. Stat. D. ; Foster's Pa. St. 348. Case, 5 Rep. 59. See Lord Black- (c) 13 & 14 Car. 2, c. 12, and 35 burn's -judgment in Garnett v. Geo. 3, c. 101 ; R. v. Llangian, 4 Bradley, 3 App. 966. B. & S. 249, 32 L. J. M. C. 225, 90 Gorham v. Luckett, 6 B. Mon. dissent iente Cockburn, C. J. (Ky.) 146. (d) 43 Eliz. c. 2, s. 6, 17 Geo. 2, (b) Jenk. Cent. 2, 73, 1 Bl. c. 38, s. 4 ; R. v. Worcestershire, 5- Couim. 89. Man. & S. 457. 91 Com'tb v. Commissioners, 40 9a Curtis v. Gill, 34 Conn. 49. 268 IMPLIED REPEAL. [§ 200 cognizance of cases where title to real property was in ques- tion ; for it would have been inoperative if the Court could not decide the question of ownership (a). | An act giving a court jurisdiction in general terms, and without restriction as to the amount claimed, over a certain kind of cases, was held to repeal, by implication, an earlier act under which its jurisdiction could be exercised only over a peculiar land of such cases. 8 The judicature Act of 1873 repealing in gen- eral words all statutes inconsistent with it, and enacting that the costs of all proceedings in the High Court shall be in the discretion of the Court, and that where an action is tried by a jury, the costs shall follow the event unless the Judge, at the trial, or the Court otherwise orders, was held to repeal the Act of James I., which deprived a successful plaintiff of costs in an action of slander when he did not recover as much as forty shillings damages (b). Where an Act made it actionable to sell a pirated copy of a work with knowledge that it was pirated, and a subsequent Act contained a simi- lar provision, but without any mention of guilty knowledge, it was held that the earlier Act was so far abrogated that an action was maintainable for a sale made in ignorance of the piracy (a). Where an Act required that a consent should be given in writing attested by two witnesses, and a subse- quent Act made the consent valid if in writing, but made no mention of witnesses, this silence was held to repeal by implication the provision which required them (c). Where an Act exempted from impressment all seamen employed in the Greenland fisheries, and a later one exempted seamen embarked for those fisheries whose names were registered and who gave security, it was held that the earlier was repealed pro tanto by the later Act (d). § 200. Statutes Intended to Furnish Exclusive Rule. — [The "implied negative" referred to in the preceding section is (a) 11 & L2 Vict. c. 12:5, s. 3, !) & C. B. N. S. 005. 10 Vict. '■. 95, s. 58; It. v. Harden, (c) Cumberland v. Cope land, 1 2 E. & B. 288, 22 L. J. 299. II. & C. 1!)4, 13 L. J. Ex. ;;:>:; ; per 93 Farley v. DeWatres, 2 Daly Jervis, C. J., in Jeffreys v. Boosey, (N. Y.) 192. t II. L. 943 ; and per Lord Wens- (6) Garnett v. Bradley, :! A.pp. leydale in Kyle v. Jeffreys, 3 944. See also per Jesse], M. K., ia Macq. 011, :!1 L. J. Ex. 355n. See Mersey Docks v. Lucas. 51 L. J. further, post, §384. Q. B. 110 ; Gardner v. Whitt'ord, 4 {1 collect the taxes, it was held to repeal another, passed a few days before, creating the office of tax-collector in one of the counties enumerated." § 201. Revisions and Codifications.— [B lit possibly the strong- est implication of a negative, very similar to that referred to in the preceding section, is round where subsequent statutes revising the whole matter of former ones, and evidently in- tended as substitutes for them, introduce a new rule upon the subject. In such cases, the later act, although it con- tains no words to that effect, must, in the principles of law, as well as in reason and common sense, operate to repeal the former 08 — the negative being implied from the "reasonable inference that the Legislature cannot be supposed to have intended that there should be two distinct enactments em- bracing the same subject matter in force at the same time." 5 If this could be the case, it is obvious that the later statute could become the law only so far as parties might choose to follow it ; 100 whereas, the mere fact that a statute is made shows, that, so far as it goes, and so far as it introduces a new rule of general application, it was intended as a substi- tute for, and to displace, an earlier one of equally general application. 101 Thus, where, of two statutes relating to liens of laborers in manufactories and intended to protect the wages of such, the one last passed covered the entire subject matter, differing from the earlier one in substituting a limitation as to amount, instead of as to time; in naming as parties subject to the legislation all persons "owning or leasing forges, furnaces, rolling mills, nail factories, machine shops or foundries," instead of "owner or owners of any manu- facturing establishment;" in making the wages protected a claim to be paid by the officer who sells the property, in the manner he is required to pay rent, instead of merely a "lien on the establishment ; " in preferring such claims in all assignments, to rank immediately before rent incase of death, and to be paid " in all cases of execution," instead of 91 Pnoplc v. Lytle, 1 Idaho, 161. (Muss.) 480. 481 ; Ilerron v. Car- '•- Iiiinlctl v. King, 12 Mass. 546, son, ^ \V. Va. G2. per Dewey, J. l0 ° Barker v. Bell, 46 Ala. 216, "Com'ili v. Kelliher, 12 Alton 221. 101 See Ibid. § 202] IMPLIED REPEAL. 271 making them payable out of the proceeds of sale only in the event of death or insolvency, — it was held that the later act, upon the principle above stated, must be held impliedly to repeal the earlier. 102 So an act providing a new system in cases of land damages for the laying out of roads, by requir- ing the county courts to institute and prosecute, in their names, in the circuit court, proceedings to ascertain the compensation to be paid, repeals by necessary implication a former act providing, that, in such cases, the county courts should award a writ of ad quod damnum returnable to such courts. 103 So, again, where the subject of the incorporation and management of building associations was covered and regulated by acts imposing, in some respects, different modes of incorporation, different conditions, duties, powers and restrictions, as compared with former acts upon the same subject, it was held that the latter were impliedly repealed. 104 And, indeed, the principle stated seems to have universal recognition. 105 § 202. [The rule seems, indeed, to go further, and to work an implied repeal in all cases in which a general revision of the old law is made by the Legislature, with an intent to sub- stitute the new legislation for the old. 106 Upon this principle it has been applied to codifications ; 107 whilst, on the other "» Johnston's Est., 33 Pa. St, Dowell v. State, 58 Ind. 333; 511. State v. Studt, 31 Kan. 245 ; 103 Herron v. Carson, 26 W. Va. Pulaski Co. r. Downer, 10 Ark. 62. 588 ; State v. Rogers, 10 Nev. 319 ; 104 Cahall v. Cit. Mut. B'g Ass'n, but see Hogan v. Guigon, 29 61 Ala. 232 ; Rhoads v. B'g Ass'n, Gratt, (Va.) 705. And see an elab- 82 Pa. St. 180; Booz's App., 109 orate discussion of this subject, Id. 592. See Endl., Build. Ass'ns, with profuse citation of decisions, § 34 note. Bisb., Wr. Laws, §§ 158-163a. 105 See in addition to above cases, 106 See People v. Carr, 36 Hun Norris v. Crocker, 13 How. 429 ; (N. Y.) 488 ; Weiss v. Mauch U. S. v. Tynen, 11 Wall. 88; Chunk Iron Co., 58 Pa. St. 295, King v. Cornell, 106 U. S. 395 ; U. 302 ; Coni'th v. Cromley, 1 Ashm. S. v. Cheeseman, 3 Sawyer, 424 ; (Pa.) 179; Prince George Co. v. U. S. v. Barr, 4 Id. 254; Excelsior Laurel, 51 Md. 457; Gorham v. Petrol. Co. v. Embury, 67 Bag-b. Linckett, 6 B. Mon. (Ky.) 146 ; (N. Y.) 261; Goodenow v. But- Rogers v. Watrous, 8 Tex. 62; trick, 7 Mass. 140; Com'th v. Stirman v. State. 21 Id. 734; Har- Coolev, 10 Pick. (Mass.) 39; 111., old v. State, 16 Tex. App. 157. etc., Canal v. Chicago, 14 111. 334 ; 101 See State v. Harris, 10 Iowa Andrews v. People, 75 Id. 605; 441 ; Ripley v. Gifford. 11 Id. 367 ; State v. Conkling, 19 Cal. 501 ; Barker v. Bell, 46 Ala. 216 ; Hart- Fair v. Brackett, 30 Vt. 344 ; Gid- ley v. Hartley, 3 Mete. (Ky.) 56 ; dings v. Coxe, 31 Id. 60 ; Wake- Thorpe v. Schooling, 7 Nev. 15. field v. Phelps, 37 N. H. 295; 272 IMPLIED KEPKAL. [§20$ hand, the repealing effect of revising statutes and codifica- tions has been frequently limited to such matters embraced in the old law as were omitted in the new, 108 or permitted to operate only in cases of manifest repugnancy 109 and not beyond the immediate object of the codification, 110 and even n failure to incorporate a statute in a revision was held not to be a repeal of it, where the act directing the revision declared that " all acts . . in force at the commence- ment of the . session . . shall be . . continued in full force and effect, unless . . repugnant to the acts ] Kissed or revised " at the same. 211 But the general rule seems to be that statutes and parts of statutes omitted from a revision are to be considered as annulled, and are not to be revived by construction. 112 § 203. Qualifications of Foregoing Rules.— [Where a Statute of a state prescribes, as a rule of construction, that the provis- ions of any statute, so far as they are the same as any prior statute, are to be regarded as a continuation of the same, and not as a new enactment, 113 an act revising and con- solidating former acts, and re-enacting their provisions in the same words, must, although expressly repealing the earlier statutes, be construed as a continuation of them. 114 And the rule of implied repeal is clearly inapplicable, also, where 108 See Bracken v. Smith, 39 N. " 8 Such a rule seems now to J. Eq. 1G9 ; Georgia R. K. Co. v. obtain, as to acts repealed or re- Kirkpatrick, 35 Ga. 144; State v. enacted by a code or other revision, Judge, 37 La. An. 578. in Massachusetts, Wisconsin, 10 9 Lyon v. Fisk, 11 La. An. 444. Minnesota, Kentucky. Missouri, no Whitehead v. Wells, 29 Ark. Washington Ter. Idaho Ter. and 99 ; and see Needhani v. Thresher, Utah Ter., and, generally, in -!<» C:ii. 393. Illinois, Kansas, Texas and Cali- 111 Cape Girardeau Co. Ct. v. fornia : see Stimson, Amer. Stat. Hill, lis U. S. 68.- See infra, Law, p. 143, §104:!. But see Ibid., 3 203. that no statute is considered in "- See Ellis v. Paige, 1 Pick, force merely because consistent (Mass.) 43, 45 ; Rutland v. Mendon, with the provisions of the Code, Id. 154; Blackburn v. Walpole, !) but is held repealed unless ex- Id. 97 ; Stafford v. Creditors, 11 pressly continued in force by the La. An. HO; Pingree v. Sncll, 42 code or other revision, in Iowa, Me. 53 ; Broaddus v. Broaddus, U) North Carolina, Tennessee, Texas, Bush (Kyi) 299 ; Campbell v. Case, California, Mississippi, and Wash- 1 Dak. 17; Tafoya v. Garcia, 1 ington, Dakota and Montana Ter- New Mex. 480. See. however, as ritories. Expressly otherwise, to slight variations of language in however, in Missouri and South. re-enactments, etc., post, 63 3?s- Carolina. 381. m Scheltels v. Tabert, 46 Wis.. § 203] IMPLIED REPEAL. 273 the revising statute declares what effect it is intended to have upon the former law ; as, where it declares that it shall operate as a repeal of such provisions of earlier acts as are inconsistent with it, which is regarded as a declaration that it shall repeal only such provisions and leave unaffected such as are not inconsistent. 115 The question of implied repeal being, after all, a question of implied intention, — where the Legislature expressly declares what effect, in the way of repeal, an act is intended to have, there is no room for any implication. 118 It has even been held, that a specific repeal by one statute of a particular sec- tion of another raises a clear implication that no further repeal is intended, 117 unless there is an absolute incon- sistency between other provisions of the two statutes. 118 But, where there is such a repugnancy between the pro- visions of a later act revising the whole subject mat- ter of several former ones and expressly repealing one of them, and the provisions of another not expressly repealed, the latter will nevertheless be abrogated by implication. 119 A revisal repealing all acts repugnant to the provisions thereof, cannot affect statutes which are omitted and which are not repugnant to its provisions. 121 Moreover, to ascertain the effect of a revision, in this parti- cular, it is necessary to "put together and construe as one act the act which authorized the compilation, and the act which subsequently put the revisal into operation. 121 And where the former gave the compilers no authority to omit 439. And see State v. Co. Ct., 53 m Thus, -where an act expressly Mo. 128. But see Emporia v. repealed so much of a former one Norton, 16 Kan. 236, where, under as provided, etc., it was held that such a rule of construction, there could be no implication of "unless such construction would an intention to repeal anything be- be inconsistent with the manifest jond : Purcell v. N. Y. Life Ins. intention of the Legislature," it Co., 42 N. Y. Super. Ct. 3S3. was held, that a statute enacted in m State v. Morrow, 26 Mo. 131. the same terms as a former one, See also Kilgore v. Com'th, 94 Pa. which had accomplished its entire St. 495, post, § 227. And comp. purpose and exhausted its force, § 398. should not be construed as a con- 118 Crosby v. Patch, 18 Cal. 438. tinuatiou of the same. ,19 Prince George Co. v. Laurel, 115 Patterson v. Tatum, 3 Sawyer, 51 Md. 457. 1G4 ; Lewis v. Stout, 22 Wis. 234 ; m State v. Pollard, 6 R. I. 290. Gaston v. Merriam, 33 Minn. 271. m State v. Cunningham, 72 N. But see U. S. v. Cheeseman, 3 C. 469, 476. Sawyer, 424. 18 274 IMPLIED REPEAL. [§ 205 anv, but directed a compilation of all, laws in force, and the latter repealed "all arts and parts of arts the subjects whereof are digested in this revisal or which arc repugnant to the provisions thereof," an act, which is neither brought rvvard in the revisal nor repugnant to its provisions, is, of course, nol repealed by it. 1 " 204. Implied Repeal of Common Law. — [The principle un- der discussion applies not only to statute law, but also to the common law, the latter being deemed superseded by a statutory revision of the entire subject, 123 either when it is couched in negative terms, or when its affirmative provi- sions are inconsistent with the continued operation of the common law. 124 [Similarly where a statute enacted by the Legislature of a state covers the entire subject matter of a statute theretofore in force in the state, deriving its authority from an enact- ment of the Legislature of another state or nation of which the state was formerly a part, or to which it was subject, the older law, though not expressly repealed, is deemed abroga- ted. 1 " § 205. Limits of Extent of Repeal by Implication. — [But, in all matters of repeal resulting by implication, from an affirma- tive act except where the intent, appearing from a design to substitute the new law for the old, in toto, is clearly to the contrary, it must be remembered that the repeal extends only so far as the provisions of the statutes affecting each >'-'- Ibid. Such a conclusion is making an act, which was an strengthened by a consideration of offence at common law, an offence the obvious impossibility of making by statute, repeals the common any revision so complete as to law). But see Washington, etc., embrace all general laws,— an Road v. State, 19 Md. 239 (where impossibility recognized, in spite it is held that an act fixing a pen- of the fact that the revision of alty for an offence, but neither statutes raises a presumption that expressly nor by necessary impli- it was iutendeil to establish a com- cation destroying the common law plete code of laws, by a provision remedy, is cumulative merely), of an adopting clause that sialutes Compare post, §§ 463, et seq. of a general nature which are not 124 State v. Norton, 23 N. J. L. repugnant to the revision should 33; State v. Wilson, 43 N. H. 415. remain in>force : Com'th v. Mason, '"Mason v. Waite, 1 Pick. 32 K v. 256. (Mass.) 452 (the case of an English 183 Com'th v. Cooley, 10 Pick, statute); Towle v. Marretl, 3 (Mass.) 37 ; Com'th v. Marshall, 11 Greenl. (Me.) 22 (of a Massachu- [d. 350; State v. Bopgher, 71 Mo. setts act). •;:;i (where it is held that a statute § 200] IMPLIED REPEAL. 275 other are inconsistent; the old Jaw being, in all other respects, left in full force and effect." 8 Whatever portions of the old law may be incorporated with the now, as being consistent with the latter, must be deemed to remain in force. 127 Thus, an act amending the charter of a town and giving to the mayor and aldermen the exclusive right to grant licenses for the sale of spirituous liquors, would not supersede the general law requiring the application for a license to retail to be recommended by a majority of the legal voters. 128 And] if one act imposed a toll, payable to turnpike trustees, for passing along a road, and another transferred the duty of repairing the road to another body, prohibiting also the trustees from repairing it, the toll would not be thereby impliedly repealed (a). [This is so, indeed, even where the later act contains an express repeal of " all inconsistent " acts, etc. 129 ] § 206. Expressed Intention to Repeal. — Yet, where a statute contemplates in express terms that its enactments will repeal earlier acts, by their inconsistency with them, the chief argument or objection against repeal by implication is removed, and the earlier acts may be more readily treated as repealed. Thus, after a local act had directed the trus- tees of a turnpike to keep their accounts and proceedings in books to which " all persons" should have access, the Gene- ral Turnpike Act, which recited the great importance that one uniform system should be adhered to in the laws regu- lating turnpikes, and enacted that former laws should con- tinue in force, except as they were thereby varied or repealed, 126 Wood v. U. S., 16 Pet. 342; must be assailed, and the amount McCool v. Smith, 1 Black 459 ; to be paid by the purchaser). Mongeon v. People, 55 N. Y. 613 ; m Daviess v. Fairbairn, 3 How. Sullivan v. People, 15 111. 233; 636. Watson v. Kent, 78 Ala. 602 ; Pub. 128 House v. State, 41 Miss. 737. School Trustees v. Trenton, 30 K (a) Phipson v. Harvett, 1 C. M. J. Eq. 667 ; Be Contested Election & R. 473. Comp. Brown v. G. W. of Barber, 86 Pa. St. 392 ; Connors R. Co., 51 L. J. Q. B. 529. v. Iron Co., 54 Mich. 168 ; Elrod m People v. Durick, 20 Cal. 94 ; v. Giliiland, 27 Ga. 467 ; Coats v. and see also Hickory Tree Road, Hill, 41 Ark. 149 (where an act to 43 Pa. St. 139. And a statute re- quiet land titles was held not pealing all former acts within its repealed by the general revenue purview does not, as to matters not laws, which contained nothing provided for by itself, repeal the inconsistent with the former, except provisions of former laws: Payne as to the time in which a tax title v. Connor, 3 Bibb (Ky.) 180. L'TC IMPLIED REPEAL. [§ 207 directed that the trustees should keep their accounts in a book to be open to the inspection of the trustees and credi- tors of the tolls, and that the book of their proceedings should be open to the inspection of the trustees ; it was held that the power of inspection of proceedings given by the first act to " all persons" was repealed (a). [Thus a decla- ration in a general law that all acts or parts of acts, whether local or special, or otherwise, inconsistent with its provis- ions, are to be deemed repealed, will repeal inconsistent pro- visions even in special acts. 130 And where an act expressly repealed certain designated sections of the Revised Statutes of the state, and in general terms all previous acts in conflict with it, it was held that it repealed every previous act iden- tical with any of those expressly repealed. 131 ] § 207. Acts Conferring Conflicting Rights, etc. — A later Act which conferred a new right, -would repeal an earlier one, if the co-existence of the right which it gave would be pro- ductive of inconvenience ; for the just inference from such a result would be that the Legislature intended to take the earlier right away (b). [A statute fixing a salary different from one prescribed by a former act, by necessary implica- tion repeals the latter. 132 ] The Point Stock Banking Act of 7 Geo. 4, c. 46, which besides limiting and varying the com- mon law liabilities of members of banking companies, pro- vided that suits against such companies should and lawfully might be instituted against the public officer, was held to take away by implication the common law right of suing the individual members (c), for from the nature of the case, this must have been what the Legislature intended (d). [But not only does the grant of a power by the Legislature inconsistent with a former one repeal the latter, 133 but in (a) R. v. Northleach, 5 B. & Ad. Ex. Gl, 1 L. M. & P. 20!) ; Davison 978. v. Farmer, 6 Ex. 252 ; O'Flaherty 130 State v. Williamson, 44 N. J. v. McDowell, 6 H. L. 142. See L. 165. See post, §§ 223, el seq. also Green v. R., 1 App. (H. L.) 131 State v. Barrow, 30 La. An., 513. Roles v. Rosewell, and Hardy P. I. G57. v. Bern, 5 T. R. 538. (b) See inf. §§245, 251, seq. (d) Per Lord Cranworth in 183 Pierpont v. Crouch, 10 Cal. O'Flaherty v. McDowell, II. L. 315. > 157. See Cowlev v. Byas, 5 Ch. (c) Steward v. Greaves, 10 M. & D. 944. W. 711 ; Chapman v. Milvain, 5 m Korah v. Ottawa, 32 HL 121. § 208] IMPLIED KEPEAL. 277 general, the grant of a power eonditioned on different things, — e. g., where an act providing for appeals from the assessment of railroad damages gave thirty days after con- firmation of the report of viewers from the entry of an appeal, and a subsequent one upon the same subject gave thirty days from, the filing of the report for the same pur- pose, — the latter was held to repeal the former. 184 [But, as a question of legislative intent, it has been held, that, where a statute, the manifest object of which was to ex- tend a benefit, or create a right, was passed under a misappre- hension, or in ignorance of the existence or effect of a former law, which gave a greater benefit, or created a greater right than the new law, the latter should not be held to affect the former, so as to repeal the right or benefit, unless an intention appeared upon it that the limits fixed by it, and nothing beyond, should regulate the matter, and that the rights and benefit conferred by it and no greater, should be enjoyed. m ] § 208. Effect of Inconvenience and Incongruity between Acts. — In other circumstances, also, the inconvenience or incon- gruity of keeping two enactments in force has justified the conclusion that one impliedly repealed the other, for the Legislature is presumed not to intend such consequences. Thus, the 9 Geo. 4, c. 61, which prohibited keeping open public-houses during the hours, of afternoon divine service, was held repealed by implication pro tan to by the 18 & 19 Vict. c. 118, which prohibited the sale between three and five o'clock p. m., the usual hours of afternoon divine ser- vice. If both Acts had co-existed, it would have been in the power of the clergyman of every parish to close the public-houses for four hours instead of two, by beginning the afternoon service at one or at five p. m., an intention too singular to be lightly attributed to the Legislature (a). [So, 134 Gwinner v. R. R. Co., 65 Pa. implication from a later act, see St. 126. See also New Haven v. Johnston's Est., 33 Pa. St. 511. Whitiuy, 36 Conn. 873 ; District {a) R. v. Wliiteley, 3 H. & N. Township, etc. v. Dubuque, 7 148; Wliiteley v. Heaton, 27 L. J. Iowa, 272. M. C. 217, S. C. See Harris v. 135 Tyson v. Postlethwaite, 13 Jenns, 9 C. B. N. S. 152 ; 30 L. J. 111. 727. That, however, mere 183 ; R. v. Senior, 1 L. & C. 401, presumptive ignorance of the exis- 38 L. J. M. C. 125 ; R. v. Bucks, 1 tance of an act by the Legislature E. & B. 447 ; R. v. Knapp, 22 L. will not prevent its repeal by J. M. C. 139, S. C. See another 278 EMPLIED REPEAL. [§ 209 too, where a statute in corporating a corporation declare' 1 that the charter granted by it should be forfeited by failure of <)\o company to organize and commence business within one year from the passage of the incorporating act, and sub- ■lequently, eighteen days before the expiration of the period \hus limited, the organization not having been perfected, nor business commenced, an act was passed amending the charter containing the directors in office for a year, and authorizing the stock subscription book to be again opened ; it was held that the fair construction of the latter act was that it operated to repeal the limitation contained in the original act and to give the company one year from the time of its passage for perfecting its organization and commencing its business, it being wholly improbable that the Legislature intended that the company should do both within the short space of eight- een days. 136 ] § 209. Effect of Later Legislation as Showing Intent to Repeal. — An intention to repeal an Act may be gathered from its repugnancy to the general course of subsequent legislation. 137 Thus the 7 Geo. 1, c. 21, which prohibited bottomry loans by Englishmen to foreigners on foreign ships engaged in the Indian trade, was held to have been silently repealed by the subsequent enactments which put an end to the monopoly of the East India Company, and threw its trade open to foreign as well as to all British ships (a). [As an instance of the operation of this rule may be mentioned the effect which has been given by the courts of various jurisdictions to the statutes enabling married women to sue and be sued, upon the exemptions contained in their favor in the statutes of limitations. Where such powers are conferred upon married women, it is said that "the various provisions that coverture shall be one of the disabilities in case of which time does not run against the plaintiff, can no example of a similar kind, in Man- fact that the latter was expressly Chester (.Mayer) v. Lyons, 22 Ch. repealed hy a still later one. D. 277. (a) The India, Br. & L. 221. 139 Johnson v. Bush, 3 Barh. Ch. See also li. v. Northleach, 5 B. & (N. Y.) 207, 238. Ad. 978. Comp. per Ex. Ch. in n ' As has been seen, ante § -17, Shrewsbury v. Scott, G C. B. N. an intention that, a certain act was S. 1. Sees ther illustration in 32 not to operate as a repeal of & 33 Vict. c. 68 ; Tie Yearwood's another maybe inferred from the Trulls. 5 Ch. IV 545. § 209] IMPLIED REPEAL. 279 longer be held to apply."" 8 They have accordingly been held to be silently repealed by the English Married Women's Property Act of 1882. :39 The same effect has been given to the Illinois married woman's act of 1801, MO and approved by the Supreme Court of the United States, 141 declaring that the powers conferred by the act so completely annihilate the existence of every reason for the exemption, that it would be absurd to hold that the two acts could stand together. 149 Similar effect has been held to follow the enactment of the California statute enabling married women ; 143 and so in Ohio, 144 and in Maine." 5 This effect has, however, been denied to similar enactments in Mississippi, 146 North Caroli- na 147 and Arkansas. 148 [But the repeal of a statute is not to be implied from the mere fact that some of the evils provided against in it are subsequently removed. 149 Hence where an act passed in 1847 required the sheriff of a certain county to hold certain municipal elections on a designated day " in each and every year," and fixed a penalty for his neglect to do so ; and an act passed in 1849 provided for the holding of such elections at any other times than those appointed by the act of 1847, if omitted to be held on the proper day, it was decided that the act of 1849 did not repeal the provisions of that of 1847 as to the duty of the sheriff and the penalty incurred by him by neglect thereof. 160 ] 138 Thicknesse, H. & W., at p. 147 State v. Smith. 83 N. C. 306; 219. State v. Troutman, 72 Id. 551. 139 TVeldon v. Neal, 51 L. T., N. 148 Hershey v. Latham, 42 Ark. S., 289; 32 W. R. 828; Lowe v. 305. In New York, under the acts Fox, (C. A.)L. R. 15 Q. B. D. 667. enabling married women to sne, it 140 Haywood v. Gunn, 82 111. was at first held that, the exceptions 385; Castner v. Walrod, 83 Id. 171. in their favor in the statutes of Enos v. Buckley, 94 Id. 458; Gei- limitations were rendered in appli- sen v. Heiderich, 104 Id. 537 (ex- cable: Ball v. Bullard, 52 Barb, cept ion in favor of married women 141; but this doctrine was subse- in act relating to prosecution of queotly questioned: see Clark v. writs of error.) McCann, 18 Hun 13; Dunham v. 141 Kibbe v. Ditto, 93 U. S. 674. Sage, 52 N. Y. 229; and the matter 142 Ibid., at p. 678. was finally set at rest by the act of 143 Cameron v. Smith, 50 Cal. 1870, ch. 741, dropping coverture 303. from the enumeration of disabili- 144 Ougv. Sumner, ICinc. Super, ties: Acker v. Acker, 81 N. Y. 143, Ct. 424. and see Clarke v. Gibbons, 83 Id. 145 Brown v. Conseno, 51 Me. 107. 301. I49 Alexandria v. Dearmon, 2 146 McLaughlin v. Spengler, 57 Sneed (Term.) 104. Miss. 818. 15 ° Ibid. 280 AVOIDANCE OF LMI'LIUD ltlil'UAL. [§ 210 CHAPTER VIII. Presumption against Repeal by Implication. General, Special and Penal Acts. § 210. Repeal by Implication not Favored. § 211. Conflict between Acts often merely Apparent. §21.1. Modification to Escape Repeal. Exceptions. § 217. Negative Statutes Affirmative Enter se. § 218. Statutes without Expressed or Implied Negative. § 222. Acts merely giving Direction and Application to Old Law. § 223. Generalia Specialibus Non Derogant. § 22G. Merely Seeming Repugnancy between General and Special Acts. § 227. Personal and Local Acts. § 228. Charters, etc. Municipal Corporations. § 229. Corporations Other than Municipal. § 230. When General Act Repeals Special. § 231. Effect of General Act Intended to Furnish Exclusive Rule. § 232. General Act in Terms Appl\ ing to Subject of Special Act. § 233. Special Act Incorporating Provisions of General Act. § 231. Implied Repeal between Special Acts. § 205. No Implied Repeal between Penal Acts where Objects not Iden- tical. § 23(5. Cumulative Punishments and Procedure. § 237. Change in Locality and other Incidents of Punishment. § 238. Change in Quality and Incidents of Offence. § 239. Change in Degree of Punishment. § 240. Where Degree of Crime is Preserved. § 241. Statute Covering whole Subject Matter. § 243. Revenue Laws. § 244. Secondary Meaning. § 210. Repeal by Implication not Favored. — But repeal by implication is not favoured (a). It is a reasonable presnmp- (a) Foster's Case, 11 Rep. 63a. Y ) 427; People v. Van Nort, 64 (TVlcCool v. Smith, 1 Black, 495; U. Barb. (N. Y.) 205; McCartcr v. S. v. 07 Packages, 17 How. 85; U. Orph. Asylum, 9 Cow. (N.Y.) 437 S. v. Walker, 22 Id. 299; U. S. v. N.Y., etc., Ry. Co. v. Supervisors 25 Cases, Crabbe. 856; LI. S. v. 100 07 How. Pr.*(N. Y.) 5; Chamber Barrels, 2 Abb. V. S. 305; Bowen lain v. Chamberlain, 43 N. Y v. Lease, 5 Hill (N. V .) 221; Catta- 424 -.People v. St. Lawrence Co raugus Co. v. Willey, 2 Lans. (N. 103 N. Y." 541; Loker v. Brookline I 210] AVOIDANCE OF IMPLIED REPEAL 281 tion that the Legislature did not intend to keep really con- tradictory enactments in the statute-book, or to effect so important a measure as the repeal of a law without express- ing an intention to do so. Such an interpretation, therefore, is not to be adopted unless it be inevitable. Any reasonable construction which offers an escape from it is more likely to be in consonance with the real intention. [Hence it is, a rule founded in reason as well as in abundant authority, that, in order to give an act not covering the entire ground of an earlier one, nor clearly intended as a substitute for it the effect of repealing it, the implication of an intention to repeal must necessarily flow from the language used, dis- closing a repugnancy between its provisions and those of the earlier law, so positive as to be irreconcilable by any fair, strict or liberal, construction of it, which would, with- out destroying its evident intent and meaning, find for it a reasonable field of operation, preserving, at the same time, the force of the earlier law, and construing both together in harmony with the whole course of legislation upon the subject. 1 And it may be here stated, that the same rule 13 Pick. (Mass.) 343; Haynes v. Jenks, 2 Id. 172: Goddarcl v. Bos- ton, 20 Id. 407; Snell v. Bridge- water, etc., Co., 24 Id. 296: Mc- Donough v. Campbell, 42 111. 490; Hume v. Gossett, 43 Id. 297; Peo- ple v. Barr, 44 Id. 198; Hyde Park v. Oakwood Cem'y Ass'n, 119 Id. 141; Casey v. Harned. 5 Iowa 1; State v. Berrv, 12 Id. 58; Burke v. Jeffries, 20 "id. 145; Wyman v. Campbell, 6 Port. (Ala.) 219; Hor- ton v. Scbool Comm'rs, 43 Ala. 598; Parker v. Hubbard, 64 Id. 203; Risrgs v. Brewer, Id. 282; McAfee v. R. R. Co., 36 Miss. 669; Navlor v. Field, 29 N. J. L. 287; Walter's App., 70 Pa. St. 392; Erie v. Bootz, 72 Id. 196; Rhein Build'g Ass'n v. Lea, 100 Id. 210, 213-4; Osborne v. Everitt, 103 Id. 421; Harrisburg v. Sheck, 104 Id. 53; People v. R. R. Co., 28 Cal. 258: Kerlinger v. Barnes, 14 Minn. 526; Goodrich v. Milwaukee, 24 Wis. 422; State v. Morrow, 26 Mo. 131; State v. Bishop, 41 Id. 16; State v. Draper, 47 Id. 29; St. Louis v. Ins. Co., Id. 146; State v. Jaeger, 63 Id. 403; Robbins v. State, 8 Ohio St. 311; Buckingham v. Steubenville, 10 Id. 25; Lichtenstein v. State, 5 Ind. 162; Blain v. Bailey. 25 Id. 165; Com'th v. Mason. 82 Ky. 256; State v. Woodside, 9 Ired. L. (N. C.) 496; Erwin v. Moore, 15 Ga. 361; Connor v. Exp. Co., 37 Id. 397; Gillette v. Shark, 7 Nev. 245; Hockaday v. Wilson, 1 Head (Tenn.) 113; Furman v. Nichols, 3 Coldw.(Tenn.)432; Smith v. Hick- man, Cooke (Tenn.) 330; Rogers v. Watrous, 8 Tex. 62; Stirman v. State, 21 Id. 734; Gill v. State, 30 Id. 514; Schwenkev. R. R. Co.. 7 Col.5l2;and seecasescited infra.] 1 See Wood v. U. S., 10 Pet, 342; McCool v. Smith, 1 Black. 459; Beals v. Hale, 4 How. 37 ; Fur- man v. Nickol, 8 Wall. 44 ; Exp. Yerger, Id. 85 ; U. S. v. Hender- son's Tobacco, 11 Id. 652; Clay Co. v. Soc'y, 104 U. S. 579; Louis- iana v. Taylor, 105 Id. 454 ; Red Rock v. Henrv, 106 Id. 596 ; Exp. Crow Dog, 109 Id. 556; Chew Heong v. U. S., 112 Id. 536 ; Chamberlain v. Chamberlain, 43 2S2 AVOIDANCE OF IMI'LIKI) Kl.l'l AL. [§211 applies equallj to questions arising between different parts and sections of the same enactment.'] ^ 211. Conflict between Acts often merely Apparent. — It is sometimes found that the conflict of two statutes is appar- ent, <>nlv, as their objects are different, and the language of each is therefore restricted, as already pointed out, to its own object or subject. When their language is so confined, the)' run in parrallel lines, without meeting. Thus the real property statute of limitations, 8 A: -1 Will. 4, e. 27, which limits the time for suing for the recover}' of land (winch is defined to include tithes) to twenty years after the right accrued, was found not to affect the provision of the Act of the preceding session. 2 and 4 Will. 4, c. LOO, which enacts that claims to exemption from tithes shall be valid after non-payment for thirty years; for the former Act dealt with conflicting claims to the right of receiving tithes which are admittedly payable ; while the latter related to the liability to pay them (a). So, the 1 N. Y. 424 ; lie The Evergreens, 47 Id. 216 ; Kingsland v. Palmer, 52 Id. 83; People v. St Lawrence Co., 103 N. Y. 541; N". Y., etc., Ry. Co. v. Superv's, 67 How. Pr. (N. Y.) 5 ; Roberts v. Fahs, 36 III. 268 ; People v. Barr, 44 Id. 198 ; Fowler v. Firkins, 77 Id. 271 ; Iverson v. State, 52 Ala. 170 ; Rigga v. Brewer, 64 Id. 282; Conim'l B'k v. Chambers, 16 Miss. 9 ; Richards v. Patterson, 30 Id. 583 ; State v. Blake, 35 N. J. L. 208 ; Morris v. Del., etc., Canal, 4 Watts. & S. (Pa.) 401 ; Street v. Com'th, 6 Id. 209; Dickinson v. Dickinson, (il Pa. St. 401 ; Erie v. Boot/., 72 Id. 190 ; Williamsport v. Brown, 84 Id. 438; lie Cont. Elect'n of Barber, 80 Id. 392 ; Com'th v. Ry. Co., 98 Id. 127; Wayne Co.'s App., 4 W. N. C. (Pa.) 411 ; Merrill v. Gorham, 6 Cal. 41; Pratt v. R. R. Co., 42 Me. 579 ; Atty.-Gen. v. Brown, 1 Wis. 513; State v. Mister, 5 Md. 11 ; Billingslea v. Baldwin, 2;; Id. 85 ; State v. Bishop, 41 Mo. 16; Lud- low v. .Johnston, 3 Ohio, 553; Blain v. Bailey, 25 Ind. 105; Water Works Co. v. Burkhart, 41 Id. 364; Carver v. Smith, 90 Id. 222 ; Connor v. Expr. Co., 37 Ga. 397 ; Lawson v. Gibson, 18 Neb. 137 ; Slate v. Babcock, 21 Id. 59!) ; Kolleubero-cT v. People, 9 Col. 233; Walker v. State, 7 Tex. App. 245 ; Forqueron v. Donnally, 7 W. Va. 114 ; Lybhe v. Hart, L. R. 28 Ch. D. 15 ; and see eases in preceding note. It is said that the exposi- tion of statutes passed at, the same session, though apparently con- flicting, but not directly repug- nant, should he such as to give effect to what appears to be the main intent of the law maker : La Grange Co. v. Cutler, 6 Ind. 354. 2 Wilcox v. State, 3 Heisk. (Tenn ) 110 ; and see Brown v. Co. Comm'rs, 21 Pa. St. 37. Compare also on this subject, generally, ante, S§ 182, 183, 187-189, 192, 195-196. (a) Ely (Dean of) v. Cash, 15 M. & W. 617. In the one case, I it hi; was real property, in the other, a chattel : Ely (Dean of) v. Bliss, 2De G., M. & G. 459. See also R. v. Everett, 1 E. & B. 273 ; Adey v. Trinity House, 22 L. ,1. g 212] AVOIDANCE OF IMPLIED REPEAL. 283 & 2 Vict. c. 110, s. 13, which enacted that a judgment against any person should operate as a charge on "lands, rectories, advowsons, tithes," and heriditaraents in which the judgment debtor had an interest, was held to be, limited to the property of debtors who had the powerof charging their property, that is, to lay rectories, advowsons and tithes, and so did not conflict with or repeal by implication the 13 Kliz. c. 10, which makes void all chargings of ecclesiastical property in ecclesiastical hands (a). [So, where sec- tion seven of an act conferred upon a married woman an absolute power to dispose of her separate estate by will, apparently even to the exclusion of her husband, and sec- tion nine provided, that upon her failure to do so, her estate should be distributed in certain proportions among her children and her husband, as the consequence of intestacy ; and a subsequent act provided, " that the power of any married woman to bequeath or devise her property by will shall be restricted, as regards the husband, to the same ex- tent as the husband's power to dispose of his property is restricted as regards the wife," etc., it was held that, as the subject of the latter act was merely the case of the hus- band of a deceased wife who left a will, it did not repeal section nine of the former act, which ascertained the mutual rights of husband and children where there was no will. 3 ] § 212. The Act which provides one course of proceeding for the habitual neglect to send a child to school, does not conflict with another which provides a different mode of proceeding for a neglect which was not habitual but occa- sional only, and both therefore can stand (v). The 55 Geo. 3, c. 137, which imposed a penalty of 100^., recoverable by the common informer by action, on any parish officer who, for his own profit, supplied goods for the use of a work- Q. B. 3, S. C. ; Hunt v. Gr. McN. ; De G. & G. 1, 11 24 L. J. Northern R. Co.. 10 C. B. 900, 2 Ch. 832. L. M. & P. 268 and 271 ; Grant » Dickinson v. Dickinson, 61 v. Ellis, 9 M. & W. 113 ; Man- Pa. St. 401. See also, lor an ning v. Phelps, 10 Ex. 59, 24 L. illustration of this principle : J. 62; Harden v. Hesketk. 4 H. & Street v. Comm'rs, 6 Watts & S. N. 175, 28 L. J. 137. Comp. R. (Pa.) 209. v. Everett, 1 E. & B. 273, 22 L. J. ' (b) Be Murphy, 2 Q. B. D. 397. 3; Be Knight, 1 Ex. 802. See another, Exp. Attwater, 5 Ch. (a) Hawkins v. Gathercole, 6 D. 27. -M AVOIDANCE OF IMPLIED REPEAL. [§212 house, or for the support of the poor, was held unaffected by the 4 & 5 Will. 4, c. 76, s. 77, which inflicted a fine of 51., recoverable summarily, half for the informer and half for the poor rates, on any such officer who supplied goods for his profit to an individual pauper (a). It had been decided before the passing of the later Act (which, indeed, was passed in consequence of that decision), that the earlier enactment applied only to a supply for the poor generally, but not to the supply of an individual pauper (l>). [So, where an act forbade the issuing of land warrants except for land whereon settlement and certain improvements had been made ; and a subsequent one enacted, that, in all cases where warrants had issued under said act and surveys been made and filed, patents should issue therefor without further evi- dence of settlement and improvement than that upon which the warrant was granted, it was held, that, as the only object of the act was to make the original proof sufficient to authorize the issuing of the patent, for the sake of conven- ience, and to obviate certain scruples entertained by the secre- tary of the land office, it was not to be construed as repeal- ing by implication the earlier act, or to establish titles obtained in fraud of it. 4 The Massachusetts act of 1862, ch. 19S, required a married woman engaging in business on her separate account to file a certain certificate, and it was held, that her failure to do so subjected her earnings in the busi- ness to attachment by her husband's creditors ; 5 the act of 1874, ch. 184, enlarged the powers of a married woman as to transfers of personal and real estate, contracts, ownership of the earnings of her work and labor, suits, right to act as administratrix, etc., but did not touch upon the subject of her rights and liabilities when carrying on business on her separate account. The latter act was consequently held not to repeal the former by implication, both acts being capable of standing together, each as the governing rule in the class of cases to which it applied. 8 An act clothed cer- (a) Robinson v. Emerson, 4 IT. (Pa.) 171. & C. 312. * See Dawes v. Rodier, 125 Mass. {b) Proctor v. Manwaring, 3 B. 421. A A. 145. « Harned v. Gould, 126 Mass. 4 Moyer v. Gross, 2 Penr. & W. 11. §213] AVOIDANCE OF IMPLIED RRPEAL. 285 tain courts with power to decree such alteration in the char- ters of boroughs as might be needful to change the limits of such, upon like proceedings, as were required for the incor- poration of boroughs; a subsequent act directed the burgess and councils of boroughs incorporated under it, upon peti- tion of not less than twenty freeholders, owners of lots in any section whereon the petitioners and others might reside, adjacent to the borough, to declare by ordinance the admis- sion of such territory as part of the borough. " This," says the court, "provides for a single case, and upon no other conditions have the borough officers anything to do with changing borough limits. To hold that such an enactment repeals a prior one which authorized the courts to decree needful alterations of borough limits, whenever expedient, would be against all precedents." 7 §213. [So an act giving to non-resident plaintiffs the right to sue before justices of the peace, by a " long " summons, without first giving security for costs, was held not repealed by a later one giving them the right to sue by a "short" summons upon giving such security. 8 So, where a general act regulating the granting of licenses for the sale of spirituous liquors, and prescribing penalties for the sale of such without license, contained a provision that it should not be held to authorize the sale of liquors in any municipality having special prohibitory laws, it was held that it did not, by implication, repeal the penalty appointed by a special law prohibiting the granting of licenses and the sale of liquors in a certain township ; the penalty in the later act being imposed upon the sale of liquors absolutely, whilst, in the former, it was imposed upon the sale thereof without license, and it being hardly correct to say of one who sold liquor in a township in which there could be no license, that he sold without license, — the phrase implying that persons might be licensed. 9 And, where 1 McFate's App., 105 Pa. St, 323, side" in an act relating to the 326. See also Maple Lake v. organization of courts does not "Wright Co., 12 Minn. 403. necessarily imply that the judge 8 Osborne v. Eveiitt, 103 Pa. St. directed to "preside" must have 421 associates : Smith v. People, 47 N. »' Seifried v. Com'th, 101 Pa. Y. 330. St. 200, 202. But tbe word " pre- 2S6 AVOIDANCE OF IMPLIED REPEAL. [§ 214 one act related to ,v idle persons, who, not having visible means of support, live without lawful employment," and another to idle and disorderly persons who neglect lawful business and habitually misspend their time by visiting houses of ill lame, etc., it was beld that there could be no inconsistency between them, so as to make one impliedly repeal the other. 10 ] § 214. So, an Act which imposes, for police purposes, a penalty for retailing excisable liquors without a magistrate's license, would not be affected by an excise Act of later date, which, after imposing a duty on persons licensed by ma- gistrates, provided that nothing which it contained should prohibit a person duly licensed to retail beer, from carrying on his business in a booth or tent, at a fair or race( v. Trenton, 38 N. J. L. cipla Expre&sio unius est exclusio 04. Tins was, in effect, a restric- alterius, in its proper significance : tion <>f the general language of one set* post, £g 397-399. §217] AVOIDANCE OF IMPLIED KRPEAL. 291 the former. And the effect of the conjoined enactments was that no more than six years' arrears of rent or interest were recoverable, except where the} 7 were secured by cove- nant or other specialty, in which case twenty years' arrears were recoverable (a). [Similarly, the provision in an earlier act that the omission of the holder of a certificate of pur- chase under a tax sale to give notice might extend the period of redemption beyond two years, was held unaffected by a subsequent statute limiting, in general, the period of redemption to two years. 30 ] § 217. Negative Statutes Affirmative Inter se. — It may be observed, also, that two statutes expressed in negative terms may be affirmative inter se, and not contradictory, though negative as regards a third at which they are avowedly aimed. They may make two holes in the earlier act, which can stand side by side without merging into one (b). [So, a statute having provided that persons living within one mile of a toll-gate should pay only half toll, — a second, that the first should not apply to persons engaged in transporting goods for others, — a third, not mentioning the second, that the first should read " except persons residing in a city or incorporated village," — it was held that the second act remained in force, the effect of the whole being that persons living within a mile of the gate, engaged in transporting for others, were liable to pay full toll, though not residing in any city or incorporated village. 31 ] The 12 Anne, st. 2, c. 16, having made void all loans at more than five per cent., the 3 & 4 Will. 4, c. 98, enacted that " no" bill or note payable at three months or less should be void for usury ; and the 2 & 3 Yict. c. 37, that " no " bill or note payable at twelve months or less should be void on that ground, but (a) Hunter v. Nockolds, 1 Mc- istration of assets. Talbot v. N & Gord, 640, Paget v. Foley, 2 Shrewsbury, L. R. 16 Eq. 26, 43 Bing. N. C. 679 ; Sims v. Thomas, L. J. 877 ; Re Hastings, 6 Ch. D. 12 A. & E. 535 ; Humfrey v. Gery, 610. 47 L. J. 137. 7 C B. 567. See also Cobhani v. 30 Gaston v. Merriam, 33 Minn. Dalton, L. R. 10 Ch. 655; Re 271. Deere, Id.; Richens v. Wiggins, 3 (b) Per Maule, J., in Clack v. B & S. 953, 32 L. J. 144. Comp. Sainsbury, 11 C. B. 695, 2 L. M. & Round v. Bell. 30 Beav. 121. P 627, 631. Rent is a specialty debt within the 81 Canastata, etc.. Co. v. Parkhill, 33 & 33 Vict. c. 46, in the admin- 50 Barb. (N. Y.) 601. 292 AVOIDANCE OF IMPLIED REPEAL. [§ 218- with the additional provision that the act was not to apply to loans on real security ; and it was held that the last-men- tioned act did not repeal the 3 & 4 Will. 4. The negative words, in which both wen; expressed, had reference to the Act of Anne; hut inter se, they were affirmative statutes, and the proviso of the later one, therefore, did not affect the short loans dealt with by the Act of William iv. (a). § 218. Statutes without Expressed or Implied Negative. — Fur- ther, it is laid down generally, that when the later enact- ment is worded in affirmative terms only, without any nega- tive expressed or implied, it does not repeal the earlier law (b). Thus, an act which authorized the Quarter Sessions to try a certain offence, would involve no inconsistency with an earlier one which enacted that the offence should be tried by the Queen's Bench or the Assizes ; (c) [nor an act author- izing a proceeding to contest the validity of a will, by peti- tion to the court of common pleas, any inconsistency with an earlier one providing for a proceeding by bill in chancery; 32 and in neither case, therefore, would* the later repeal the prior law. 33 ] So, an act which imposes a liability on certain persons to repair a road, would not be construed as impliedly exonerating the parish from its common law duty to do so (/:/). [Nor does an act empowering the court to order the children of indigent persons unable to work, to support them, relieve the poor district in which such paupers may be found from its duty to provide for them until they can be removed to the place of their last settlement. 84 ] A local (a) Clack v. Sainsbury, ubi sup.; 453 ; DePauw v. New Albany, 22 Nixon v. Phillips, 7 Ex. Ib8, 21 L. Ind. 204 ; Blain v. Bailey, 23 Id. J. 88 ; Exp. Warrington, 3 De G. 165 ; Brown v. Miller, 4 J. J. M. & G. 159. 22 L. J., Bank. 33. Marsh. (Ky.) 474 ; Elliott v. Loch- (b) Co. Litt. 115a, Anon. Loilt, name, 1 Kan. 12G ; McLaughlin v. 405 ; Muir v. Hore, 47 L. J. M. C. Hoover, 1 Greg. 31 ; Cate v. State, 17. [See, also. Williams v. Potter, 3 Sneed (Tcnn.) 120 2 Barb. (N. Y.) 310 ; Bruse v. (c) Co. Litt. 115a, 2 Inst. 200. Schuyler, 9 111. 221 ; Mullen v. 3i Raudebaugh v. Shelly, G Ghio People, 31 Id. 411 ; Anient v. Hum- St. 307. phrey, 3 Gr. (la.) 235 ; Planter*' B'k 33 See also, ante, § 151. v. State, 14 Miss. 028 ; White v. (d) R. v. St. George's Hanover Johnson, 23 Id. 08 ; Street v. Square, 3 Camp. 222; R. v. South- Com'th, Watts & S. (Pa.) 209 ; hampton, 22 L. J. M. C. 201; Gib- Shinn v. Com'th, 3 Grant (Pa.) son v. Preston, L. R. 5 Q. B. 219. 205; Nixon v. Piffct, 16 La. An. ^ Kelly v. Union Tp.. 5 Watts. 879 ; Atty-Gen. v. Brown, 1 Wis. & S. (Pa.) 536. 513; Stale v. Macon Co., 41 Mo. § 218] AVOIDANCE OF IMPLIED REPEAL. 203 act, iu directing that the chimneys of buildings should be built of such materials as the corporation approved, did not affect the provisions of the earlier general act (3 & 4 Vict. c. 85, s. 6), which required that chimneys should be built of stone or brick (a). A bye-law made under the T-ith section of the Education Act, requiring children to attend school as long as it was open, (which was at least thirty hours in the week,) did not repeal the provision in the Workshops Regu- lation Act of 18G9, which requires that children under thir- teen employed in a workshop shall be sent to school for at least ten hours weekly (b). [Where an act exempted to the widow and children of a decedent dying testate or intestate the same property, which, by laws then in force, was exempted from execution, and a subsequent act repealed the law making an exemption of property of a certain value from execution, specified certain property which should be held exempt, and reserved the same articles for the benefit of the widow of any person dying intestate, it was held that this act did not repeal the one first mentioned, the exemp- tion in favor of the widow, etc., of one dying intestate not being in conflict with a similar exemption in the case of one dying testate." Nor was an act authorizing the transfer of certain money from the railroad and sinking fund to the county school fund, held repealed by a later one authoriz- ing the transfer of surplus moneys by county commissioners from one fund to another. 30 ] An act which provided that if a person suffered bodily injury from the neglect of a mill- owner to fence dangerous machinery, after notice to do so from a factory inspector, the mill-owner should be liable to a penalty, recoverable by the inspector, and applicable to the party injured, or otherwise, as the home secretary should determine, would not affect the common law right of the injured party to sue for damages for the injury (c). [And, in general, "an act which gives cumulative and not incon- sistent remedies, and especially one which embraces cases (a) Hill v. Hall, 1 Ex. D. 411. 36 State v. Storey Co., 17 Nev. (6) 30 & 31 Vict. c. 146, s. 24; 96. Berry v. Cherryholm. 1 Ex. 1>. ( ( the owner resided, and imposed a sup., £ 219. ■1\ 322 penal acts. [§§ 242. 243 their re-enactment with an increased penalty and a summary method of its recovery (a). Where a local Act imposed on "all persons" engaged in making gas, who suffered impure matter to flow into any stream, a penalty of 200^., recoverable by a common informer by action, and a further penalty of 201. for every day the nuisance was continued, payable to the informer or to the party injured, as the justices thought lit ; and the General Gasworks Clauses Act of 1847 after- wards imposed the same penalty on the " undertakers" of gasworks authorized by special Act, recoverable by the party- injured ; it was held that the earlier Act was repealed as regarded such undertakers (b). § 242. [An exception to this rule, upon what would seem sound reason, in accordance with legislative intent, was made in the case of an act that provided an entire new system for the granting of licenses to sell liquor, and prescribed punishments, differing from those inflicted by previous statutes, for the violation of its various provisions. It, however, permitted licenses to be granted under the old law, up to a certain date. It was held that the old law must be deemed to be continued in force as to all licenses granted under it, during the life of each license so granted. 132 ] § 243. Revenue Laws.— It has been observed by the Supreme Court of the United States, that in the interpretation of laws for the collection of revenue, whose provisions are often very complicated and numerous, in order to guard against frauds, it would be a strong proposition to assert that the main provisions of any such laws were repealed, merely because in subsequent laws other powers were given, and other modes of proceeding were provided, to ascertain whether any frauds had been attempted. The more natural inference is that such new laws are auxiliary to the old (:. Actions for Penally where Several are Aggrieved, g 258. Presumption againsl Injustice. § 2G2. Summary Proceedings. 263. Limits of Effect of Presumption against Injustice. § 264. Presumption against Absurdity. § 265. Construction ut magis valeat, etc. § :2GG. Caution as to Application of Presumption against Unreason, etc. § 245. Presumption against Unreason.— Ill determining either what was the general object of the Legislature, or the meaning of its language in any particular passage, it is obvious that the intention which appears to be most agree- able to convenience, reason, and justice, should, in all cases open to doubt, be presumed to be the true one. An argu- ment drawn from an inconvenience, it has been said, is forcible in law (a) ; and no less force is due to any drawn from an absurdity or injustice. The treaty between Louis xii. and the Pope, which gave the king the right of appointing to ''all bishoprics vacated by the death of bishops in France," was, for instance, properly construed, not as giving him the right of appointing to a foreign bishopric whenever its incumbent happened to die in France, but, more consistently with good sense and con- venience, as authorizing him to fill the bishoprics of his own kingdom, when their holders died, whether at home or abroad (5). [It will not be presumed that the Lcgisla- (a) Co. Lilt. 97a. (b) Puff. L. N. B. 5, c. 12, s. 8. § 245] l NR] LSON, ETC. 325 ture intends what is unreasonable. 1 ] If a statute gives an appeal from a magistrate's decision, " when the sum adjudged to be paid on conviction shall exceed two pounds," the question whether the penalty only, or the penalty plus the costs was intended, would be decided on similar general considerations of convenience and reason. It would be thought more likely that the Legislature intended to give an appeal only when the ofFence was of some gravity, and not merely where the costs (which would vary according to the distances to be traveled by the parties and their witnesses, the number of the latter, and similar accidental circumstances) happened to swell the amount above the fixed" limit (a). [So, in civil actions, where the judgment of a magistrate not exceeding $20 is, by statute, made final and conclusive as to both plaintiff and defendant, without right of appeal therefrom, it is held that the sum in con- troversy, and not the amount of the judgment entered, determines the right of appeal." And where a statute pro- vided that either party should have an appeal where the judgment given by the magistrate should exceed $5.33, it was held that the plaintiff had the right of appeal, where his claim exeeeded that amount, from the judgment of a magistrate in favor of the defendant. 3 Strictly and literally taken, no doubt, the provision would seem to mean, that if the plaintiff sue for damages suffered by him to the amount, e. f/., of $100, he might appeal, if he be aggrieved by a iuderment in his favor one cent short of his full demand, but that he must be concluded if he be aggrieved by a judg- ment against him to the amount of his entire claim, — a proposition so unreasonable that respect for the Legislature was said to forbid its adoption, and the court was led to entertain the somewhat strained view, that, in denying 1 Neenan v. Smith, 50 Mo. 525. divergence, gel onanothercar and As an application of tliis doctrine ride to a different terminus, to a municipal ordinance, see Ellis (a) R. '• ■ Warwickshire, E. & v. fttilw. City R. Co., 67 Wis. 135, B. 837, 25 I.. -I. M. C. 119. where such an ordinance, limiting ' Klinginsmith v. Nole, 3 Pen. the tare to be charged on a street & W. (Pa I 120 ; Downey v. Ferry, railway running between the same '2 Watts (Pa.) 304. termini to 5 cents, was held not to 'Stewart v. Keemle, 4 Serg. «& permit a passenger, for 5 cents, to R. (Pa.) 72; McCloskey v. Me ride mi a ear bound for one ter- Conuell 9 Watts (Pa.) IT. minus, and then, at a point of 326 UNREASON, ETC. [§ 246 judgment to a plaintiff, whose demand exceeded $5.33, the magistrate virtually entered a judgment against him for such amount. "What is the case more or less than this? The plaintiff brings a suit for goods of the value of seventy- five dollars. The judgment is given by the justice or alder- man against him. The justice or alderman then gives a judgment exceeding $5.33. lie gives a judgment against him for the amount which he claims." 4 In consonance with this view, it was also held under an act which gave a limited jurisdiction in civil actions when the debt or damages demanded did not exceed $20, that the test of the existence of the jurisdiction was the amount of damages demanded, not the amount actually due, for instance, upon a note, when the action was begun. Hence, as the amount to which plaintiff was entitled could not be judicially ascer- tained to be less than the damages demanded, the fact that the judgment was for less than $20 could not affect the jurisdiction. 6 ] § 246. An Act regulating local rates, which gave an appeal against any rate to the Quarter Sessions, and pro- vided, for enforcing its payment, that two justices might issue a distress warrant against the goods of the defaulter, if he did not, on being summoned, " prove to them that he was not chargeable with, or liable to pay such rate," would not be construed as authorizing the justices to enter upon any inquiry into the validity of the rate, if it was valid on its face ; though, literally, the defaulter would unquestion- ably prove his non-liability, if he proved its invalidity. If the question of validity, which was left to the Quarter Sessions, was also open to the justices required to enforce the rate, they might decide against the validity of the rate after it had been adjudged valid by the Quarter Sessions («) ; a conflict which could not readily be supposed to have * Stewart v. Keemle, supra, at 256. 27 L. J. 199 ; R. v. Bradsliaw, p. 74, per Duncan, J. 2 E. & E. 830, 29 L. J. 199 ; R. v. s Cole v. Hayes, 78 Me. 539. See Higginson, 2 P.. & S. 471. 31 L. J. also Ladd v. Kimball, 12 Gray M. 0. 189; Exp. May, 2 B. & S. (Mass.) 139. 436, 31 L. J. 161 ; R. v. Linford, 7 Birmingham v. Shaw. 10 Q. E. &B. 950"; R. v. Finnis, 28 L. J. B. 868; Exp. Williams, 2 E. & 11. M. C. 201 84 ; R. v. Kingston, E. 15. & E. £ 24:7] UNEBA80N, KTC. ,°,27 been intended. It would he otherwise, indeed, if the rate bore invalidity on its face, by not showing that it was made in accordance with the statutory authority given for the purpose ; for they could not be required to enforce what did not profess to be a valid demand made by competent authority (a). An Act to provide protection against dogs which empow- ered magistrates to make an order that any dog found to be dangerous should " be kept under proper control or destroyed," would, on this principle, be construed as giving the magistrate the option of making an absolute order for the destruction of a dangerous dog; not as requiring that his order should be in the alternative terms of the Act, which would place the option in the hands of the owner of the dog ; for this would be much less efficacious and convenient (b). § 2±7. The 24 & 25 Yict. c. 98, which, after making it felony to engrave without authority plates of banknotes purporting to be notes of the Bank of England or of Ireland, or of any other company, declared in another section that the enactment should not apply to Scotland, except where it was expressly so provided, was held to apply to the engrav- ing of the notes of a Scotch bank ; the rational object and meaning of the excluding provision being, not that forgeries against Scotch banks might be committed in England with impunity, but that, when committed in Scotland, they should not fall within the Act (<•). AVhere an Act, after transferring all duties of paving and lighting from existing Commissioners to a Board of Works, provided that all contracts with the former should remain valid, that no action upon them against the commissioners should abate, and that all liabilities under such contracts should be paid out of rates to be made by the new Board ; it was held, on the ground of its being the more convenient course, that an action on a contract made with the Commis- sioners might be brought against the Board (. 259, cit. Thompson v. Gibson, 8 M. & \V. 288 ; Page v. Pearce, Id. < > 7 T . but referring to Grace v. Church, 4 Q. B. 606; Shuttleworth v. ('inker, 1 M. ft G. 829. See post, § 395. Comp. Robertson v. Robertson, L. It. 8 P. I). 96, that, whatever the mean- Lngofthe word "on"migh1 be, in respect of the proximity of action < templated by it, it, must mean shortly after, if ii be not, indeed, confined to the time of making the decree, and it would be difficull to extend it to a period exceeding a veai- : per Jessel, M. R. (6) It. v. Sussex, 7 T. R. 107. (c) R, v. Yorkshire, 1 Den-. 192; R. v. Dorsetshire. i:> East, 200 ; R. v. Sussex-, 15 East. 206 ; R. v. E ex, l B. ft A. -.MO; R. v. Thack- nell. 1 B. & C. 62 ; R. v. Devon, 8 B. ft C. 040; R. v. Sevi noaks* 7 Q. B. 136 ; R. v. Sussex, 4 B. & S. 900, 34 L. J. M. C. 09. See R, v. Trafford, 15 Q. B. 200 ; R. v. Watts, 7 A. &E. 461 ; R v. West Riding, E. B. ft E. 713. 8 Butwhereanactrequiredtheen- try of an appeal from the judgment of a justice of the peace in the office of the prothonotary of the court of common pleas mi or before the first day of the term next after perfect- ing the appeal, lor which purpose the act allowed twenty days after entry of the judgment, it was held that the appeal must, be filed to the next term, though taken before the expiration of the twenty days, and though the first day of such term came before their expiration : see Moore v. Creamer, 3 Penr. ft W. (Pa.) 416. But it did not require the appellant to forego any of the twenty days allowed him, in order to enter his appeal to the next term after the judgment had been ren- dered : Potts v. Staeger, 12 Pa. St. 363. § 247] UNREA80N, ETC. 329 requiring that execution upon a judgment rendered by a justice of the peace " shall be directed to the constable of the ward, district or township where the defendant resid* or the next constable most convenient to the defendant," it wa ai 1 that force must be given as well to the words " i onvenienl " as to the word " nexl ; '* there might be vera! districts adjacenl to that in which the defendant lived, and to which the word " next '* might apply, and in such ease the selection of a constable from our of the dis- tricts might be determined by the question of convenience, of which the magistrate must be the judge. Again, the constables of such districts might be unable, by reason of sick- ness or absence, to perform the required duty, or disqualified by reason of interest or otherwise, and in all these cases convenience or necessity might require the selection of a con- stable who was not "next to the defendant." 9 ] When an Act gave any person aggrieved (a) by an order of justices, four months "for making his complaint to the Quarter Sessions,'' it was construed to mean, not that the complaint must be heard within that time, but that the appellant should have that time for notifying his intention to appeal ; other- wise he might sometimes be limited to a few weeks, or, if no sessions were held within the four months, he would be deprived of his appeal altogether (b). [The period of twelve months, until the expiration of which, under a Connecticut statute, a highway, after being laid out, shall not be laid open or occupied, is held to begin to run from the time when, by the combined measures of the select men and the town, the road shall have been legally established. 10 ] 9 Com'tk v. Lentz, 10G Pa. St. N. 755, 27 I.. J. 235 ; R. v. Graves. 643. It wasalsoheld in this case, L. R. 4 Q. I'.. 715; Boyce v. Big- that, whilst a constable of another gins, II C. B. I, 23 L. J. 5; Exp. ■want, etc., than as specified in the Learoyd, 10 Ch. D. 5, 48 L. J. 17; act, might, if be chose, accept and Exp. Thoday, 2 Ch. D. 229 ; \ execute such an execution directed din v. Wray, 2 Q. I'.. D. 6 to him, he was not bound to do so, comp. Rochforl v. Atherley, 1 Ex. and no action could, in case of his D. 511; R Shaftoe's Charity, 3 refusal, be maintained upon his App. 872, -17 L. J official bond for that cause. i R. v. Essex, 34 L. J. M. C. See R v. Middlesex, 3 B. & 11 ; R. v. Middlesex, 6 M. & S. \,| 938; K. v. Toole, 1 M. & R. 279. [And see ante. § 77; R v. 728 : Wood v. Heath, I M. & Gr. Hants, 1 B. & Ad. 564J 918; I! v. Chichester, 29 L. J. Q. " Wolcott v. Pond, 19 Conn. B. 23 : Hollis v. Marshall, 2 H. & 597. 330 UNREASON, ETC. [§ 248 § 248. The statute which enacts that " a solicitor' may make an agreement in writing with his client respecting the amount and manner of his remuneration," was held to require impliedly that the agreement should be signed by the client ; as otherwise it would be possible for a solicitor to place a document signed by himself only, and containing terms favourable to him, before his client, and then contend that the latter was bound by it (a). Where one Act authorised the recovery of certain claims before justices of the peace, proceedings before whom are limited to six months, and another Act authorised their recovery, when not exceeding twenty pounds, in the County Courts, where the term of limitation is six years, it was held that suits for them in the latter Courts were limited to six months, to avoid imputing to the Legislature the anomalous intention of allowing six years for the recovery of small sums, while giving only six months for large ones (b). Bankruptcy Acts which vest the future as well as the pres- ent property of the bankrupt in the assignee or trustee, import the necessary exception, to save him from starving, of the remuneration which the bankrupt may earn by his labour after his bankruptcy, 11 and the damages which he may recover for any personal injury (c). The Act which imposes a penalty on the piracy of a dramatic work, or "any part thereof," would not be broken unless a material and sub- stantial part was pirated. It is not to be supposed that the Legislature intended to punish the misappropriation of what was of no value (d). [Nor would an act directing, that, in all actions for the sale of any spirituous, vinous or malt liquors, the fact that such liquors or admixtures thereof (a) Re Lewis, 1 Q. B. D. 725. cution :" Welch v. Kline, 57 Pa. (/;) 11 & 12 Vict. c. 63, s. 39 ; 24 St. 428, 432. See also Wbedon v. & 25 Vict. c. Gl, s. 24 ; Tottenham Champlin, 59 Barb. (N. Y.) Gl. Board v. Rowell, 1 Ex. 1). 514. (c) Beckham v. Drake, 2 II. L. See also the judgment of the 579 ; U> Wilson, 8 Ch. D. G31, 47 Exchequer Chambers, in Nicholson L. J. Bey. 116. v. Ellis, E. B. & E. 267, 28 L. J. (d) Chatterton v. Cave, 2 C. P. Q. B. 238. D. 42 ; 3 App. 483 ; Pike v. Nieho- 11 " A man's creditors have no las, L. R. 5 Ch. 251 ; Bradbury v. ■al claim on his labor, unless his Hotten, L. B. 8 Ex. 1 ; Planche v. earnings are realized and invested Braham, 4 Bing. N. C. 7; in some kind of property, which D'Almaine v. Boosey, 1 Yo. & C. can be reached by process of exe- 301. § 249] UNKEASON, ETC. 331 were impure, vitiated or adulterated, shall constitute a good and sufficient defense to the whole of plaintiff's demand, apply, except where the quality or value of such liquors had been impaired by the impurity, vitiation or adulteration. 15 § 249. [Under an act authorizing the entry of judgment in suits upon certain causes of action against the defendant, unless an affidavit of defense be filed by him before the third Saturday succeeding the return day of the original writ, it was held that the proceeding was inapplicable to the case of a defendant not actually served with process ; as, e. g. y in a suit begun by foreign attachment, where the defendant was absent and might not be in court until after the expiration of the time allowed for filing the affidavit." An act making it the duty of the overseers of every poor- district to furnish relief to poor persons not having a settle- ment therein, " until such person can be removed to the place of his last settlement," was held to contemplate a removal with safety to the pauper's health and life.' 4 Where an act declared that "all judgments, which, at the time of the death of a decedent, shall be a lien on his real estate, shall continue to bind such real estate during the term of five years from his death," it was held that it must be interpreted as relating to lands of which he was seized at the rendition of the judgment, because otherwise the statute might be frustrated by a sudden alienation shortly before death. 15 So, under an act, that judgments against collecting officers should be " for the principal due, with interest at the rate of ten per cent, per annum from the first day of June preceding and until paid," it was held, that, as the interest was designed to be a penalty for failure to pay over at the 12 Clohessy v. Roedelheirn, 99 13 Grant v. Bickox, 64 Pa. St. Pa. St. 56. It is said, in the decis- 334. See post, § 267. ion of this case, that the mi-chief " Kelly Tp. v. Union Tp., 5 to be remedied, and the phvase Watts. <& S. (Pa ) 535. The re- "admixtures thereof," indicated moval of n pauper in a condition that the act did not mean to pun- of health which forbade it. and ish the introduction of any sub- made an attempt al removal an act stance, foreign to and not essential of cruelty, and a risk of life, it was in, the manufacture of pure liquors, said, would subject the overseers but only deteriorating and noxious to indictment impurities. "Nicholas v. Phelps, 15 Pa. St. 36. 332 UNREASON, ETC. [§ 249 time appointed by law, the act must be construed to mean, from the first day of June preceding the time when the money should have been paid into the treasury. 16 Where an ordinance required owners to pave in front of their property, and on neglect, after twenty day's notice "left or placed on the premises, if the owner was unknown or could not be found." the commissioner of highways should pave and file a lien for the cost, and a notice to pave was folded up and placed on the premises, under a stone which completely cov- ered it, it was held that this was not a sufficient notice 11 ider the ordinance. 17 A provision that a person tried and found. guilty should not be entitled to a new trial, etc., "for any of the following causes," was held to mean "for any one " of the causes enumerated. 18 Acts establishing boom companies, and imposing on the owners of lumber the duty of paving toll for the security and preservation of their property caught in such booms, have been held not to apply to rafts intended to pass down the river, but accidentally stopped by the boom, where their owners neither sought nor desired its use or protection. 19 Laws requiring affidavits of defense to be filed in certain actions upon contracts, and entitling the plaintiff to judgment for default thereof within a certain time, have been uniformly held not to apply to executors or adminis- trators, because, "in no ordinary case would it be possible for a personal representative to set out on oath in specific detail the nature and incidents of a transaction to which his decedent had been a party, and to which he was a stranger.'" And an exception was made in favor of infants from the general language, broad enough to cover them, of a statute requiring the filing of statements of claim to land, or " be forever barred," etc., because of the hardship of any other construction, and the omission of any provision for the making of such statements by guardians and the like. 21 Under an 16 Samuels v. Com'th, 10 Bush, person might be entitled to a new (Kv.)4!)l. irinl : [bid. » Philadelphia v. Edwards, 78 ,9 Chase v. Dwinal, 7 Gre.nl. Pa. Si. 62. (Me.) 134. 18 Thurston v. State, 3 Coldw. 20 Seymour v. Hubert, 8-3 Pa. St. (Tenn.) 115; so that, if more thau :31fi. 348. one of the causes coexisted, the - 1 Coy v. Coy, 15 Mini). 119. § 240] DNREABONj ETC. 333' act which permits the transfer of judgments from one county to another by certified transcript of the record, and directs that the case may then be proceeded in and the judgment and costs collected by execution, etc., execution cannot be issued by the court of the comity in which the transcript is tiled without a revival of the judgment there, when none can be issued, for want of a revival, in the county in which the original judgment remains. 2 ' Where a general railroad law prohibits a railroad company from running its line through any dwelling house in the occupancy of the owner thereof, without his consent, the phrase dwelling house includes the curtilage, so far as necessary, for a reason- able and proper enjoyment of the house as a residence, in view of its location and surroundings. 23 An exemption of swine from attachment, in an act intended for the protection of poor debtors, must, in reason, be construed to include the living and dead and dressed animal.'"'' Under an act author- izing the laying out of a road "from" Bowdoin College, one starting seventeen rods from the college buildings and eight rods from the land appropriated to the use of the collego was held well laid out. 25 A statute authorizing the abandonment of a canal on approval of the project by at least two-thirds of the stockholders of the company, was held satisfied by the approval of a single stockholder who held more than two thirds of the stock. 20 Under an act directing a contract to be awarded to the " lowest bidder," the determin- ation )f the question whether a bid is the lowest, reasonably 22 B<.jk v. Church, 113 Pa. St. dwelling-house," without the con- 200. sent of the tatter's owner, lessee or 23 S««iffr's App. (Pa.) 2 (Vnii\ occupier, it is held that the phi Rep. £11. Comp. Wells v. R. R. '•dwelling-house" does not include Co., 47 Me. 345. For construction the curtilage, and the one hundred of the word "house," in similar yards must be measured from the connections, sec Bennetl v. Bittle, walls of the house : Wright v 4 Rawlc, (Pa.) 339, 342 ; Rogers v. Wallasey Local B'd, L. It. 18 Q.B. Smith. 4 Pa. St. 93, 101 ; Cole v. 1). 783. ' Ry. Co., 27 Beav. 242 ; Grosvenor M Gibson v. Jenney, 15 Mass. v. Ry. Co., 26 L. J.. Ch. 731 ; King 205. But see for construction, v. Ry. Co., 29 [d. 462 ; Marson v. including only living turkeys, etc., Ry. Co., 1 Kay & J. ;;i ; 5 DeG., R. v. Halloway, 1 C. & 1'. 128; R. M. & G. 851. But under the L8 & v. Edwards, I Russ. & Ryan, 497. 19 Vict. c. 128, § 9. providing that "Stanford v. Peirce, 7 Mass. no ground to be used as, or appro- 458. priated for, a cemetery shall be used 2S Fredericks v. Canal Co., 109 for burials "within the distance Pa. St. 50. of one hundred yards from any 334 UNBEASON, ETC. [§ 250 involves a comparison not only of figures, but of the quality and utility of the thing offered and its adaptability to the purpose for which it is intended ;" and a direction to award to the " lowest responsible bidder " does not refer to pecuniary responsibility alone, but also to judgment and skill. 58 Where an act provided that, upon the decision that a pauper had been improperly removed, the town to which he was removed should be reimbursed for the cost of his support, it was held inapplicable in a case, where, the decision not being upon the merits, the town would, by a literal interpretation, be repaid the expense of maintaining its own pauper.'" 9 § 250. [The Georgia statute of 16 March, 1869, requiring actions for the enforcement of rights of individuals under acts of incorporation or by operation of law, accrued prior to June 1, 1S65, to be brought before January 1, 1870, was held not to apply to claims against the estates of decedents, so as to restrict or exclude the time a previous statute allowed to administrators to ascertain the condition of the estates committed to their care, and to creditors to file their claims, it being deemed unreasonable to suppose that the Legislature, having already made provision for these cases, in tended to repeal them by an act aimed at the settlement of affairs left in confusion by the disturbances of the civil war. 30 Nor was the general and inconclusive language of a later enactment permitted to abrogate express exception from jurisdiction made by an earlier one, where the effect would have been to confer upon a court of limited jurisdiction power to try Indians and others, strangers to civilized life, by standards unknown and in reason inapplicable to them. 31 Upon the same ground, the reasonableness of the construction adopted, it was held that, under an act 3a giving a summary remedy to landlords, before justices of the peace, to regain possession of the property demised by them upon the 81 Cleveland, etc., Tel- Co. v. i9 Ryegate v. Wardsboro, 30 Vt. Metrop. Fire Comm'rs, 55 Barb. 746. See post, § 266. (N. Y.) 288; 7 Abb. Pr. N. S. 49; 80 Mills v. Scor,t. 99 U. S. 25, and see Frost v. Fay. 8 Lans. approving Moravian Sem'y v. (X. Y.) 898. Atwood, 50 Ga. 382; Edwards v. Douglass v. Com'lb, 108 Pa. Ross, 58 Id. 147. St. 559 ; Com'th v. Mitchell, 82 Id. 31 Exp. Crow Dog, 109 U. S. 55G. 343; Fiudley v. Pittsburgh, Id. 32 14 Dec. 1863, P. L. 1125, Pa. 351. § 251] UNBBASON, ETO. 335 expiration of tlic lease, and notice, the provision in former acts, which ousted the jurisdiction of the justice upon the filing of an affidavit by defendant that the title to real estate would come in question, was inapplicable. 33 § 251. Presumption against Inconvenience. — [It IS said, that, where the intention of the Legislature or the law is doubtful and not clear, the judges ought to interpret the law to be what is most consonant to equity and least inconven- ient. 14 This is true most particularly where the inconvenience would result to the public, — an infraction of sound and acknowledged principles of national or state policy ;" — a jeopardizing or sacrifice of great public interests ; 30 — a public mischief," and the like. Thus, it was held, that, under a statute authorizing the attachment of moneys due to a defendant in the hands of the person owing them to him, money held by a person in his official capacity as treasurer of, e. g., a board of school directors, could not be attached for the satisfaction of a debt due by the school district. 38 " Great public inconvenience would ensue, if money could be thus arrested in the hands of officers, and they be made liable to all the delay, embarrassment and trouble that would ensue, from being stopped in the routine of their business." 39 And similarly, a statute permitting attachments on judgments to be laid in the hands of any " person or persons whatever, corporate or sole," was held not to include a municipal corporation. 40 It is perhaps most frequently in the construc- tion of legislative grants to individuals and corporations that eourts are called upon to protect the rights of citizens and the 33 Living-nod v. Moyer, 2 Woodw. with the custody of public money, (Pa.) 65 ; and see Mohan v. Butler, and to be analogous to that which (Pa.) o Centr. Rep. 407. forbids the attachment of moneys 34 Kerlin v. Bull, 1 Dall. (Pa.) in the hands of a sheriff or pro- 175, 178 ; Jersey Co. v. Daviuou, 2'J thonotary. N. J. L. 415. 4U Baltimore v. Root, 8 Md. 95. 35 See Opin. of Justices, 7 Mass. Indeed, in the construction of an 523, act authorizing process to issue Sli People v. Canal Comm'rs, 4 against defendants residing in for 111. 153, eign counties, it was said that, 31 Smith v. People, 47 N. Y. ordinarily, a statute, speaking in 4530. general terms of plaintiffs and de- 3S Bulkley v. Eckert, 3 Pa. St. Fendants, applies to persons only, 3G8. not to sinies, counties and muuici- 39 Ibid. The principle is there pal corporations, unless named: stated to extend to all oilier nmnic- Schuyler Co. v. Mercer Co., 9 111. ipal and state officers entrusted 28. 336 inukason, lire. [§ 251 public, and to apply tlie doctrine of the presumption against an intention to give rise to a public inconvenience. General words of incorporation in a statute are not to be construed contrary to plain reason and right;" nor acts for the accom- modation of citizens or corporations, so as to affect injuriously the rights or privileges of others." [ndeed, it i- said that every legislatives grant is made with the implied reservation that it shall not injure others/ 8 and the rights granted are subordinate to considerations id' public safety and conveni- ence. 44 Thus the grant of a right to build a bridge does not, without an express provision to that effect, give the right to obstruct navigation. 46 And the statuory grant of a right to lay pipes in public streets is subject to the power of the municipality to order them lowered to suit a changed grade. 46 As the rule is true with reference to the public and large classes of citizens, so it is true, in a more limited sense, with reference to individual rights. Some instances of its operation in this respect have been given in preceding sections. 47 As regards the present connection, most individual rights are capable of being compensated for if destroyed or abridged. And in general, therefore, it may be said to be a proper rule of construction that a statute is not to be so inter- preted as to interfere with, or injure the rights of, persons without compensation, unless there is no escape from such construction. 48 Accordingly in the Lands Clauses Act, it was said that the word "hereditaments" ought to be held to include incorporeal hereditaments, "not merely on account of the generality of the words, but also because it would be expedient/' easements being entitled to protection. 49 But it is obvious that the mere individual hardship of a case cannot always, or even ordinarily, become a feature in the « Matthews v. Caldwell, 2 Disney, « Selman v. Wolf, i !'.-x. 68. (O.) 27!). ls Jersey City v. Hudson, 13 N. Jee Wales v. Stetson, 2 Mass. J. Eq. 420. 143; lined v. Dightou Bridge, 3 Id. 41 Sec, e. g., Swift's A pp., supra, 263 ; Coolidge v. Williams, I Id. § 249. lio ; IVitv v. Wilson, 7 Id. 393. 48 See Mty.-Gen. v. Borner, L. « Pitts!, etc., K. R. Co. v. S. R. 14 Q. B. D. 2.T7, per Brett, M. W. Pa. Ry. Co., 77 Pa. St. 173, R. L86. And see Com'th v. Canal 4 » Greal West. Ry. Co. v. Swin- Co., 66 td. 41. don, etc., Ry. Co., L. R. 9 App. ■'•' Pittsb., etc., II. R. Co. v. S. Cas. 787, per Lord Brarawell, at W. Pa. Ry. Co., supra. pp. 808-809. § 252] UNREASON, ETC. 337 construction of an act. 69 And, in general, the argument from inconvenience must lie cautiously applied. It is said that it c;m never have weight except in doubtful cases," and that it is a most dangerous doctrine;" though if, by reading an enactment in its ordinary sense, there results an inconven- ience not only great, but what may be called an absurd inconvenience, whereas, if read in a manner in which, whilst it is not its ordinary sense, it is yet capable of being read, it. leads to no inconvenience at all, this, it is admitted, would constitute a reason for not reading it according to its ordinary grammatical meaning. 63 ] § 252. A construction which facilitated the evasion of a statute would, on similar grounds of inconvenience, be avoided. Thus, an Act which forbade an innkeeper to suffer any gaming "in his house or premises," was construed as extending to gaming by himself and his personal friends in his private rooms in the licensed premises ; for a construction which limited the prohibition to the guests in the public rooms would have opened the door to collusion and evasion (a). And yet, a construction facilitating evasion, even to the extent of defrauding the revenue, may be justified and required by considerations of convenience, as in the ease of Stamp Acts ; where the question whether the document is sufficiently stamped depends solely on what appears on the face of the document, to the exclusion of all extrinsic evidence to prove the contrary; for, to admit evidence to invalidate it, would lead to the intolerable inconvenience of holding a collateral inquiry, to the interruption of the trial of the cause in which the paper was tendered (i). 60 See post, § 266. 5 C. P. D. 50 ; and see per Brett, 81 Gore v. Brazier, 3 Mass. 523. L. J., in lies v. West Ham Union, See ante, § 263. 8 Q. B. D. 69, 51 L. J. 24. Comp. 62 R. v. Tonbridge Overseers, Brigden v. Heighes, 1 Q. B. D. L. R. 13 Q. B. D. 342. 330'; Tussell v. Ovcnden, 2 Id. 383; 63 lb., per Brett, M. R. See for Lester v. Torrens, Id. 403; Bosley an instance of the application of v. Davies, 1 Id. 84. the argument from inconvenience {b) Whistler v. Forster, 14 C. B. to construction of an obscure act, N. S. 'J is ; Austin v. Buuyard. 6 Duquesne Sav. B'k's App., 96 Pa. B. & S. 687 ; Galty v. Fry, 2 Ex. St. 298. D. 265 ; comp. Clarke v. Roche, 47. (a) Patten v. Rhymer, 3 E. & L. J. Q. B. 141. E. 1, 29 L. J. 189; Corbet v. Haigh, 22 338 UNREASON, ETC. [§§ 253, 254 § 253. Joint and Several Offences and Penalties. Complex Act. — Acts which impose a pecuniary penalty have sometimes given rise to a question, when there were two or more offenders, whether one joint or several separate penalties were intended ; and this, where the Act has left it open to doubt, has been said to depend on whether the offence was in its nature joint or several. When the offence is one in which every participator is justly punishable in proportion to the part which he rook in it. the inference would obviously be that a separate penalty on each was intended. In the offence of assaulting and resisting a custom-house officer, one may resist, another molest, a third run away with the goods ; all are distinct acts, each a separate offence, and each offender would be liable for his own separate offence (a). So, under the Toleration Act, which enacts that if any person or persons maliciously disturb a congre- gation, such "person or persons" shall, on conviction of "the said offence," be liable to a penalty of 201., it was held that every person engaged in such a disturbance would be liable to a separate penalty (Jj). So, where two men were convicted of an assault and sentenced to pay one penalty, under the 9 Geo. 4, c. 31, the conviction was quashed ; because a penalty ought to have been imposed on each offender severally, the offence being in its nature several (. 1!. 337. ed in the construction: Hunt. v. (J) 36 A- 37 Vict. c. 85, s. 17. R. R. Co. (Ind.) 11 West. Hep. The Englishman, 3 P. D. 18 ; The 107; Sawyer v. State (Ohio) [b. 262. Magnet, The Fanny Carvill, L. K. 10 U. S. v. Kirby. 7 Wall. 482, 4 A. & E. 417, II L. J. Adni. 34 486-7 ; and see to similar efEcd : (c) R. v. Lambe, 5 T. R. 76. Reiche v. Smytne, 13 Id. 162; (d) A.tty.-Genl. v. Ilackucy Board, L. 11. 20 Eq. 626. § 259] rxKKASox. etc. 345 time to make amends before he was sued with that object {a). The 12 & 13 Vict, c. 02, s. 5, which requires "every person," who impounds an animal, or causes it to be impounded or confined, to supply it with food, would not apply to the keeper of the pound (b). The enactment in the Licensing Act of 1872, that "every person found drunk on licensed premises" should be liable to a penalty, though literally wide enough to include the publican who had got drunk anywhere, and was found in that condition in his bed after the house was closed, would l)e construed, according to the manifest object of the Act, as confined to persons found on the premises while using it as a house for public resort (c). § 259. A statute which enacts that a person who has been convicted by justices of an assault, and has suffered the punishment awarded for it, shall be released from all other proceedings "for the same cause," would not be construed as exempting him from prosecution for manslaughter, if the party assaulted afterwards died from the effects of the assault ; such a construction would defeat the ends of justice (d). An Act which imposed a penalty on any sheriff or bailiff who carried a person arrested for debt to prison for twenty-four hours, though it might render the former liable for the act of the latter, his servant, as well as for his own, would not be construed to admit of his being sued, after the penalty had been recovered from the bailiff; for this would be to give the plaintiff a second penalty for the same act, after he had been compensated by the first; and would, indeed, make the bailiff liable to pay twice, as he would be bound by the usual bond to indemnify the sheriff (e) An Act (5 & 6 Yict. c. 39, s. 6) which protected a fraudu- lent agent from conviction, if he "disclosed " his offence on (a) Flower v. Lord Leyton, 5 Ancketill v. Baylis, 52 L. J. Q. B. Ch. D. 347. 104. (b) Dargan v. Davies, 2 Q. B. (d) R. v. Morris, L. R. 1 C. C. D. 118. 90. [" Same offence " menus same (c) 33 & 34 Vict. c. 29 ; Lester v. both in law and in fact : U. S. v. Torrens, 2 Q. B. D. 403. See Cashiel, 1 Hugh. 552.] Warden v. Tye, 2 C. P. D. 74. (r) Peshall v. Layton, 2 T. R. Comp. Patten v. Rhymer, sup., § 712. See Wright v. London Omni- 252. See another illustration in bus Co., 2 Q. B. D. 271. [Sre ante, § 255.] 346 DNEEA60N, ETC. [§200 oatli, in any examination in bankruptcy, was held not to include a confession made there after commitment by a magistrate, which was in substance only a repetition of the facts proved before the latter ; on the ground that it would have been absurd and mischievous to enable a man to provide an indemnity for himself, by simply making a statement of facts already known and provable aliunde, and not in any way advancing either civil or criminal justice by the alleged " disclosure " (a). § 260. Although there is no positive rule of law against a retrospective rate (b), enactments which authorize the im- position of rates and similar burdens on the inhabitants of a locality have been repeatedly held not to authorize, without express words, a retrospective charge ; on the ground of the injustice of throwing on one set of persons a burden which ought to have been borne by another at a former period (c'). And where the Act makes the occupier rateable at what a tenant from year to year would give for it, it would be under- stood, where the property was subject by law to restrictions which prevented the occupier from obtaining the full value, that the hypothetical tenant was similarly subject to them (d). An Act which prohibits the negligent use of furnaces in such a manner as not to make them consume smoke, " as far as possible," means only so far as the smoke can be consumed (a) R. v. Skecn, Bell, 97, 28 L. J. Newton v. Young, 1 B. & P. N. M. C. 91. So hold by nine judges R. 187 ; R. v. Maulden, 8 B. & C. against five. See Lewes v. Bur- 78 ; R. v. Durslcy, 5 A. & E. 10 ; nett, 6 Ch. D. 252, 47 L. J. 144. Waddington v. London Onion, 28 (J) See Harrison v. Stickney, 2 L. J. M. 0. 103; R. v. Stretfield, II. L. 108 ; R. v. Carpenter, 6 A. 32 L. J. M. C. 23(5; Bradford & E. 794; R. v. Read, 13 Q. B. Union v. Wilts, L. R. 3 Q. B. D. 004; 524; Jones v. Johnson, 7 Ex. 452, R. v. Wigan, 1 App. 611. [Simi- 21 L. J. M. C. 102 ; R. v. Maiden- lady, although there is nothing to head, 8 Q. B. D. 339, 51 L. J. 209. prevent the Legislature, if it so [See New Engl., etc., Co. v. chooses, to impose double taxation, Montgomery Co., 81 Ala. 110, it is said, in the Druggists' Case,* where it is said that the Legislature 85 Tenn. 449, to be sale, in the may impose taxes, having a retro- construction of revenue laws, to active operation, and may take the presume against an intent to profits or income of a business for impose double taxation on the same a preceding year as the measure business or privilege. In Ilann., of assessment : but that such an etc., H. R. Co. v. Shacklett, 30 Mo. intention is not to be presumed in 550, the idea of double taxation is the absence of clear and indisputa- treated as an absurdity.] ble expressions.] (d) Worcester v. Droitwich, 2 (c) Tawny's Case, 2 Salk. 531 ; Ex. D. 49. I 261] UNKEASON, ETC. 317 consistently with the due carrying on of the business for which the furnace is used, and not as far as it is physically possible to consume it, without regard to the detriment which the business carried on would suffer ; the Act not having expressed any intention to interfere with it (a). The Carrier's Act (11 Geo. 4 & 1 Will. 4, c. 6$), which exempts carriers from responsibility for the loss of certain articles worth more than ten pounds, unless their nature and value are declared, but enacts also that the Act shall not affect any special contract of carriage, was construed not literally, as making the Act inapplicable whenever any special contract was made, but only as not affecting any special contract inconsistent with the exemption provided by the Act (b). § 261. [So, where the terms of an act imposing joint and several liability for the debts of a corporation upon its trustees, as the consequence of their neglect to make and publish certain annual returns required of them, were broad enough to include debts of the company to an individual trustee, the injustice resulting from such a construction, with the effect, manifestly improper, of allowing one trustee to avail himself of the default of the board, of which he was an integral part, to establish a right of action in his favor against his fellows, induced its rejection. 71 Under an act giving to city councils the power to make and establish rules and regulations for the better regulation of pit or bay windows, whilst it authorizes them to ordain general rules upon the subject, does not permit any special legislation thereon, or the granting of any special licenses to individuals to erect and maintain bay or oriel windows in the public highway beyond the established building line." Under an act which grades the salaries of certain county officers accord- ing to the population of a county, an officer, in order to be entitled to a certain salary claimed by him, must show that (a) Cooper v. Wolley, L. R. 2 Ex. as not extending to any such 88. injury caused by the shipowner or (b) Baxendale v. The G. E. R. his servants : Phillips v. Clark, 2 Co., L. R. 4 Q. B. 24.fi. The ordi- C B. N. S. 156 ; Czech v. Gen. narv stipulation in a bill of lading, Steam Nav. Co., L. R. 3 C. P. 14. excepting liability for breakage, " Biiggs v. Easterly, 62 Barb, leakage "and damage, would "be (N. Y.) 51, post, § 267. similarly limited in construction, " Reimer's App., 100 Pa. St. 182. :;i> UNREASON, ETC. [§261 tin- number of inhabitants in the county, at the time ho entered upon his office, was such as to class it as a county in which the salary asked by him is, by the act, payable there- for." Obviously, " whatever the population may previously have been, or what it may thereafter become, does not con- trol the case." 74 Hence, where, by the United States decen- nial census of lS70, 75 a county contained 1G0/J15 inhabitants, and in 1878 a part of its territory was separated from it to erect a new territory, leaving, according to the census, in the remaining portion less than 150,000 inhabitants, and it was shown that the new territory, in that year, contained 80,000 inhabitants, an officer of the old county, entering upon his office in 1880, was held not to be entitled to the salary appointed for such officers in counties having " less than 250,000 and over 150,000 inhabitants." 76 The object of an exemption from execution, ordained by an act, of tools, etc., being to prevent persons in financial distress from being deprived of the means of earning a livelihood, it was held to contemplate, as a probable contingency, that the loss of all property not so exempt might cause at least a temporary cessation of business and employment, and such stoppage, therefore, was held not to forfeit the exemption. 77 Under an act requiring railroad companies to erect and maintain fences along their lines, and for failure to do so making them liable for all damages resulting therefrom, it was held that a railroad company was not liable for injuries resulting from a casual defect in the fencing, as though it were an insurer, but that the question of its liability, in such cases, was a question of neglect of duty. 78 It has been seen 79 how, to obviate unreasonable and unjust results, the words "owner," "occupier," and the like, have been given a construction greatly departing from their usual and ordinary significations, and 80 that a construction of a statute 13 Monroe v. Luzerne Co., 103 not be assumed : Ibid. Pa. SI. 278. 76 Ibid. "' tb., at p. 281. " Harris v. Haines, 30 Mich. 140. 15 And in the absence of evi- ' 8 Murray v. K. R. Co., 3 Abb. dence, an increase of population App. Dec. (N. Y.) 339. between its date and that of the ™ Ante, §§ 95-96. beginning of the officer's term, will 80 Ante, $ 130 note. §§ 262, 263] unreason, etc. 349 "which would make a man guilty, regardless of his intent, should not, unless unavoidable, be adopted." § 262. Summary Proceedings. — [It has been said that the law abhors all ex parte proceedings without notice, 83 and that, consequently, to take a mini's property and assess his damages, without notice to him, is repugnant to every principle of justice. 83 Accordingly, it is laid down as a rule, that, wherever the Legislature authorizes, and precribes a mode for, the taking of property, it is to be presumed that notice is to be given to the parties in interest ; 84 and, as a necessary corollary of this presumption, that, where the statute unequivocally dispenses with such notice, it is to be strictly construed ; 86 as is also a statute permitting construc- tive service of notice, etc. 80 ] § 263. Limits of Effect of Presumption against Injustice. — It is to be borne in mind that the injustice and hardship which the Legislature is presumed not to intend is not merely such as . may occur in individual and exceptional cases only. 87 Laws are made ad ea quae frequentius accidunt (a) ; and individual hardship not unf requently results from enactments of general advantage. The argument of hardship has been said to be alwa} r s a dangerous one to listen to (5). It is apt to intro- 81 Bradley v. People. 8 Col. 599. act of the California Legislature, See another instance of a construe- authorizing atiacbments against tion against unreason and injustice, boats and vessels " used in naviga- ante, § 142, Philadelphia v. Pass, ting the waters of the state." was Ry. Co., 102 Pa. St. 190. See, also, held not to include a vessel belong- Marsh v. Nelson, 101 Pa. St. 51, ing to New York, intended for 55, where it was said : " If it was trade between New York and the desigu to do away with the dis- China, and navigating the waters tinction between seated and of California only to the extent of unseated lands, it is likely that the sailing from the ocean to San right of redemption would have Francisco : Souter v. The Sea been placed upon the same footing." Witch, 1 Cal. 162 ; and see Tucker 81 Neeld's Road, 1 Pa. St. 353, v. The Sacramento, Id. 403 ; Ray 355. v. The Henry Harbeck, Id. 451. 83 Ibid. 86 Stewart v. Stringer, 41 Mo. 400; 84 Boonville v. Ormrod, 26 Mo. Gray v. Larrimore, 2 Abb. U. S. 193 ; Wickham v. Page, 49 Id. 526. 542. And so as to statutes allow- That a statute will not be construed ing summary proceedings to obtain to authorize judicial proceedings possession of laud : Baldwin v. in general, without notice to the Cooky, 1 Rich. N. S. (S. C.) 256. party to be affected bv them, see 87 See ante, § 251. Bish., Wr. L., §§ 25, 141, and cases (a) Dig. 1. 9. 3—10. [2 Inst, there cited. 237.] 85 See ante, §158, and post, (b) Per Cur. in Munro v. Butt, 8- § 334. Upon this principle, an E. & B. 754. [Ante, § 251.] 350 1 NREASON, ETC. [§2G4 (.luce bad law (a) ; and has occasionally led to the erroneous interpretation of statutes (J/). Courts ought not to be influenced or governed by any notions of hardship (c). They must look at hardships in the face rather than break down the rules of law (d) ; and if, in all cases of ordinary occurrence, the law, in its natural construction, is not incon- sistent, or unreasonable, or unjust, that construction is not to be departed from merely because it may operate with hardship or injustice in some particular case (,) Per Erie, C. J., in Midland 7 Johns (N. Y.) 477 ; Shepherd v. l: Co x. Pye, LOC. B. X. S. 191 ; People, 24 How. Pr. (N. Y.) 388; §271] KETRO ACTION. 363 operation of this rule can be here given." An act declaring forfeiture of dower or curtesy, " whenever a married man shall be deserted by his wife, or a married woman by her husband," for the space of one year, was held to apply only to cases of desertion beginning after the statute went into oper- ation. 27 A provision that married women shall be bound, like other persons, by estoppel in pais, was held inapplicable to the case of a mortgage made by such a person before the enact- ment. 28 An act amending a city charter and fixing the sala- ries of certain officials in the city was deemed prospective only, 29 and so was an act making it the duty of the auditor of a state to pay into the state treasury 75 per cent, of all fees collected by him, under the provisions of a certain earlier Wade v. Strack, 1 Hun (N. Y.) 9G ; 3 Thomp. & 0. 165 ; Whitney v. Hapgood, 10 Mass. 437 ; Somerset v. Dighton, 12 Id. 383 ; Medford v. Learned, 16 Id. 215 ; Gerry v. Stoneham, 1 Allen (Mass.) 319 ; Garrett v. Wiggins, 2 111. 335 ; Mason v. Finch, 3 Id. 223 ; Guard v. Rowan, Id. 499 ; Bruce v. Schuyler, 9 Id. 221 ; Belleville R. R. Co. v. Gregory, 15 Id. 20 ; La Salle v. Blanchard, 1 111. App. 635 ; Bartruff v. Remey, 15 Iowa, 257; Mcintosh v. Kilbourne, 37 Id. 420 ; Barnes v. Mobile, 19 Ala. 707; Hooker v. Hooker, 18 Id. 599; Brown v. Wilcox, 22 Miss. 127 ; Garrett v. Beaumont, 24 Id. 377 ; Williamson v. R. R. Co., 29 N. J. L. 311 ; State v. Scudder, 32 Id. Sturgiss Briggs 203 ; Vreeland v. 1 ; Elizabeth v. Bramhall, 39 Id. Hill, Id. 555 ; State v. Newark, 40 Id. 92 ; Warsh- ung v. Hunt, 47 Id. 256; Nell's App., 21 Pa. St. 243 ; Fisher v. Farley, 23 Id. 501 ; Becker's App., 27 Id. 52 ; Dewart v. Purdy, 29 Id. 113 ; Ilimsen v. Nav. Co.*, 32 Id. 153, 156; Taylor v. Mitchell, 57 Id. 209 ; White v. Crawford, 84 Id. 433 ; People's Fire Ins. Co. v. Hartshorue, Id. 453 ; Stockwell v. MeHenry, 107 Id. 237; Von Schmidt v. Huntington, 1 Cal. 55; Smith v. And. Gen., 20 Mich. 398; Saunders v. Carroll, 12 La. An. 793 ; McGeehan v. Burke, 37 Id. 156 ; Plumb v. Sawyer, 21 Conn. 351 ; Hastings v. Lane, 15 Me. 134; Torrey v. Corliss, 33 Id. 333 ; v. Hull, 48 Vt. 302 ; v. Hubbard, 19 Id. 86 ; Richardson v. Cook, 37 Id. 599 ; Morgan v. Perry, 51 N. H. 559 ; State v. Atwood, 11 Wis. 422 ; Seaman v. Carter, 15 Id. 548 ; Finney v. Ackerman, 21 Id. 268 ; Gaston v. Merriam, 33 Minn. 271 ; State v. Waholz, 28 Id. 114; Ker- linger v. Barnes, 14 Id. 398 ; Alexander v. Worthington, 5 Md. 471 ; State v. Auditor, 41 Mo. 25 ; State v Bhkeman, 52 Id. 578 ; State v. Ferguson, 62 Id. 77; Ryan v. Hoffman, 26 Ohio St. 109; Pritchard v. Spencer. 2 Ind. 486 ; Aurora, etc , Co. v. Holthouse, 7 Id. 59 ; Hopkins v. Jones, 22 Id. 310 ; Merwin v. Ballard, 66 N. C. 398; Forsvth v. Marburv, R. M. Charlt. (Ga.) 324 ; Bond v. Munro, 28 Ga. 597; White v. Blum, 4 Neb. 555 ; State v. Stein, 13 Id. 529 ; Stewart v. State, 13 Ark. 720 ; Parsons v. Payne, 26 Id. 124 ; Martin v. State, 22 Tex. 214 ; and cases infra. 86 It is a rule of construction established by law, in Georgia and Louisiana, that an act can prescribe only for the future, and in Kentucky, California, Georgia, Louisiana, Dakota, and Utah, that it can have no retro- spective operation : Stimson, Amer. Stat. L., p. 143. § 1044 21 Giles v. Giles, 22 Minn. 348. 28 Levering v. Skockey, 100 Ind. 558 29 State v. Hill, 32 Minn. 275. 36 i- retro \' ■■'■ ■•■ ' 272 statute, and of all other fees received by Lira on account of Bervices rendered in a certain department of his office. 30 So, an act declaring that municipal lands used for agricultural purposes should be taxed higher for municipal purposes, than township lands for township purposes; 81 and another declar- ino- county treasurers ineligible for more than two consecutive terms, 82 were each held devoid of retrospective force, so that ■the former act did not interfere with assessments made before its passage, 33 and the latter did not forbid a treasurer in office for a second term to hold it again. 31 A statute giving exclu- sive, in the place of former concurrent, jurisdiction would not be construed as operating retrospectively if another con- struction could be fairly given to it; 86 nor one doing the converse, where the effect would be to subject a party to •damages. 38 And an act respecting written acknowledg- ments of rights of action will be given a prospective opera- tion only ; 37 as also an act establishing a rule for the compu- tation of time, 38 and an act relating to appeals;" and one for the prevention of the spread of infectious and contagious diseases, and imposing upon the state liability for expenses incurred for that purpose; 40 and so, too, a by-law of a municipality passed under its charter authorizing it to pre- scribe terms upon which certain persons might reside therein. 41 § 272. Prospective Effect Apparently Contrary to Words.— [Even where there is that in the statute which would seem upon other principles of interpretation, to require a retroac- tive construction, the presumption against the same, in the absence of an intention otherwise demonstrable to give the statute such an effect, will overcome the influence of such 20 Henderson v. State, 96 Ind. St. 500. 437 as White v. Blum, 4 Neb. 555 ; 31 'Stilz v. Indianapolis, 81 Ind. so as u«»t to apply to cases deter- 532 mined before its passage: Ibid. "State v. Stein, 13 Neb. 529. S< - » lockran v. Douglass, 2:. Pills. 33 Slilzv. Indianapolis, supra. L. J. (Pa.) 120, post, § 2,2. but 34 State v. Stein, 13 Neb. 529. sec post, g£ 285 et sea. « State v. Littlcfield, 93 N. C. 40 State v. Bradford, 36 Ga. 614 See posts 288 422 ; so that the state would not be ■■'■ McMichael v. Skilton, 13 Pa. liable thereunder for sucb expenses g t 215. incurred before the passage of the 31 Van Rensselaer v. Livingston, act : Ibid. 12 "Wend. (N. Y.) 490. 41 Costin v. Washington, 2 38 Edmundson v. Wragg, 104 Pa. Cranch C. Ct. 254. § 272] RETROACTION. 365 rules. Thus, where an act amended and re-enacted a former one, which provided that every conveyance not recorded should be void as against attachment and judgment creditors, but omitted the words " hereafter made," contained in the earlier act, it was, nevertheless, held that the act could not apply to conveyances executed prior to the statute re-enacted by it." And so, as it has been seen 43 that the strict gram- matical sense of the language used by the Legislature may give way to a construction required by other rules of interpreta- tion, words apparently importing a retroactive effect will" yet, in the absence of other reasons supporting such literal construction, be so construed as to produce a prospective- operation. Thus, an act which makes certain provisions " when any judgment is obtained " is construed as referring to such cases only " when any judgment is hereafter obtained ;"" and so the provisions of an act regulating, with additional requirements, appeals " in all cases in which judgment shall have been rendered." 45 Where, indeed, the act is not of immediate operation, but limited to take effect at a future date, that form of grammatical construction requires a prospective operation. Thus, in a statute passed in April, to go into operation in October of the same year, it was provided " that in all cases of partition of real estate in any court, wherein a valuation shall have been made of the whole or parts thereof, the same shall be allotted to such one or more of the parties in interest, who shall, at the return of the rule to accept or refuse to take at the valuation offer in writing the highest price therefor above the valua- tion returned," etc. It was said by the Supreme Court of Pennsylvania, in denying to this provision any retrospective force : " This new rule of allottment [the Legislature] enacted should not go into effect before the 1st of October, 1856. As if they had said, whenever a valuation in parti- 42 Gaston v. Merriam, 83 Minn, damages which "may be done" 271. The variation in the language was held to be grammatically pros- would, under other circumstances, pective, whilst "may have been have been a potent indication of a done " would indicate the reverse : change of intention : see post, Ilimsen v. Nav. Co., 32 Pa. St. §§ 382, 384. 153, 156. 43 Ante, § 81. 45 Cochran v. Douglass, 25 Pitts. 44 State v. Connell, 43 N. J. L. L. J. (Pa.) 120 ; Act 20 Apr. 1876,. 106. An act imposing liability for P. L. 43. See post, § 288. i:i:tro action. 272 tion shall have been made after the 1st of October, 1S5G, the new rule of allottment shall apply. This phrase, ' shall have been made,' is an instance of the future perfect tense. It contemplates a valuation perfected, but perfected in future, and the future of this statute was all subsequent to the specified date. Had it been repealed before that date, it would have had no future existence, and no operation whatever. Though not repealed, it must not have a con- struction that would give it effect during the period of its suspended animation, for this were to violate the will of its creator. Giving, then, to the words before us their genuine grammatical meaning, we hold them applicable not to a valuation made after the enactment of the law, but before it took effect, but only to valuations made after the law went into operation ; and thus construed, the statute commences, for every purpose, in f uturo, as Blackstone said all laws should do." 48 Similarly, the words " already sustained — "" "here- tofore " and " hereafter " 49 are to be understood as referring to the date, not of the passage, of an act, but of its taking effect ; and even in an amendment, the word " heretofore ,: was held to mean before the passage of the amendatory, not of the original, act, 49 Where a general statute declared, that, unless a different time is prescribed in any statute for its taking effect, it shall go into operation ninety days after its passage, an act was passed giving a lien for work and materials in the construction of a railroad, which should be prior to all other incumbrances placed on the property, " subsequently to the passage" of the act, it was held that a mortgage executed prior to the passage of the act was a superior lien to that of a claim for materials furnished after its passage, but before the expiration of the ninety days 46 Dewart v. Purdy, 29 Pa. St. MeKibben v. Lester, 9 Ohio St. 113, 117. Comp. post, § 284. 627, where the phrase "under the 41 Jackman v. Garland, 64 Me. restrictions and limitations herein 133. provided," occurring in an amend- 48 Charles v. Lamberson, 1 Iowa, ment, was construed as referring 435. to the restrictions and limitations 49 People v. Wayne Circ. Judge, provided in the original act as it 37 Mich. 287. But see Moore v. stood after all the amendments Mausert, 49 N. Y. 332, where the made thereto were introduced in word "hereafter," in an amend- their proper places therein. See ment was held to mean after the ante, §§ 1<)5-196. passage of the original act : and § 273] RETROACTION. -"'07 when the act could take effect, the word " passage" being thus construed as " taking effect." 60 ] § 273. Acts Affecting Vested Rights.— It is chiefly where the enactment would prejudicially affect vested rights, or the legal character of past transactions, 51 that the rule in question prevails. 52 Every statute, it has been said, which takes away or impairs vested rights acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability in respect of transactions or con- siderations already past, must be presumed, out of respect to the Legislature (a), to be intended not to have a retro- spective operation (b). [On the contrary, it was said in a recent case in England, prima facie the general rule of con- struing acts of Parliament is that they are prospective, and rights are not to be interfered witli unless there are express words to that effect. 53 And this requisite of express declar- ation, positive expression, and the like, has been repeatedly insisted upon in decisions in this country ; 54 and it has been stated, that, however broad and general in its terms, a statute is not to be construed as interfering with existing contracts, rights of action, or suits, unless the intention that it shall so operate is expressly declared. 55 So far as rights and obligations resting upon contracts are concerned, consti- tutional provisions interpose, in America, insuperable obsta- cles to legislative impairment or destruction of the same, and similar provisions in some of the states protect rights of 60 Andrews v. R. R. Co., 16 Mo. Bowen v. Striker, 100 Ind. 45, App. 299. See for like construe- and many of the cases already tion of the word "passage," under referred to. a similar constitutional provision : (a) Per Chancellor Kent in Dash Harding v. People, (Col.) 15 Pac. v. Van Kleeck, 7 Johnson, 502, &c. Rep. 727 ; ante, § 181. (b) Per Story, J., in Soc. for 61 McMaster v. State, 103 N. Y. Propag. of Gosp. v. Wheeler, 2 547. Gallison, 139 ; and see per Chase, 5i See Albee v. May, 2 Paine, J., in Calder v. Bull, 3 Dallas, 74; Hickson v. Darlow, 52 L. J., 386, 390. Ch. D. 454 (aff'd L. R. 23 Ch. D. 63 Allhusen v. Brooking, L. R. 690) ; Allhusen v. Brooking, 26 Ch. D. 564, per Chitty, J. L. R. 26 Ch. Div. 564 ; Dash v. »* See Bedford v. Shilling, 4 Serg. Van Kleeck, 7 Johns. (N. Y.) 477 ; & R. (Pa.) 400, 408, per Tilghman, Sayre v. Wisner, 8 Wend. (K Y.) C. J. ; Lefever v. Witmer, 10 Pa. 661 ; Quackenbush v. Danks, 1 St. 506. 507, per Gibson, C. J. Deuio (N. Y.) 128 ; Bedford v. 65 Berley v. Rampacher, 5 Duer Shilling, 4 Serg. & R. (Pa.) 401 ; (N. Y.) 183 ; People v. Supervisors, State v. Atwood. 11 Wis. 422: 63 Barb. (N. Y.) 85. RETEOACTION. , L'74 property and of action. Beyond that, whilst the rule above stated is probably too strict and narrow," whatever the legis- lative power upon the subject may be, an intention to sub- vert rights of property, vested rights, should never be imputed to a statute unless indicated in such terms, having regard to all legitimate means of interpretation," as admit of no doubt, but show a clear design to effect that particular and specific purpose." General terms which may, but must not of necessity, apply, and which the Legislature has not particularly applied to the case, and consequently implied or constructive repeals, cannot effect it. 69 ] § 274. The provision of the Statute of Frauds, that no action should be brought to charge any person on any agreement made in consideration of marriage, unless the agreement were in writing, was held not to apply to an agreement which had been made before the Act was passed (a). The Mortmain Act, in the same way, was held not to apply to a devise made before it was enacted (2»). And the Apportionment Act of 1870, which enacts that after the passing of the Act, rents are to be considered as accruing from day to day, like interest, and to be apportion- able in respect of time accordingly, would seem not to apply to a will made before the Act, though the testator died after it came into operation (e). [So, the Pennsylvania act of 1855, requiring devises, etc., to charities to be attested by two disinterested witnesses, and made at least one month before the testator's death, was held inapplicable to a will executed before the passage of the act, but taking effect thereafter; 60 and the act of 1833, providing that real estate acquired by the testator after the date of his will should pass by a general devise, was similarly restricted. 61 ] The testator 64 See post, §§ 283 seq. (5) Atty.-Genl. v. Lloyd, 3 Atk. 67 See ante, § 271. 531 ; Asiiburnbam v. Bradsliaw, 2 68 See Rutherford v. Greene, 2 Atk. 36. Wheat. 196. (c) Jones v. Ogle, L. R. 8 Ch. 69 Sec Rwtherford v. Greene, 192. supra. 60 Taylor v. Mitchell, 57 Pa. St. (a) Gilmore v. Shuter, 2 Lev. 209. 227 ; 2 Mod. 310 ; Ash v. Abdy, 3 61 Mullock v. Souder, 5 Watts & Swanst, 664. See also Doe v. S. (Pa.) 198. Comp. post, §§ 284, Page, 5 Q. B. 767 ; Doe v. Bold, 292. 11 O. B. 127. § "275] RETROACTION. 369 was presumed to have in view the state of the law when lie made his will. 62 The contrary presumption that the testator who left his will unaltered after the Act was passed, intend- ed that it should operate on the will (a) would imply that he knew that the law had been changed. So, it was held that the Act of 8 & 9 Vict. c. 109, which made all wagers void, and enacted that no action should be brought or main- tained for a wager, applied only to wagers made after the Act was passed (5); and the Kidnapping Act of 1872, which made it unlawful for a vessel to carry native laborers of the Pacific Islands without a license, did not apply to a voyage begun before the Act was passed (c). The Bills of Sale Act of 1882, which made void bills of sale not registered within seven days of their execution, was held not to apply to instruments executed before the Act came into operation. Compliance, it is evident, would have been impossible where the deed had been executed more than seven days before the Act passed (d). The 20 Yict. c. 19, which declared that extra-parochial places should, for poor-law and other purposes, be deemed parishes, was held not retrospec- tive, so as to confer the status of irremovability on a pauper who had resided in such a place for five years before the Act (e). § 275. [Where a bounty offered by a statute had been earned, its reduction in amount by a subsequent statute amending the original law could not affect the right ac- quired under the latter. 63 Nor was a statute permitted to have a retroactive effect so as to cut off an accepted bid 62 Just as contracts are presumed White, 33 L. J. Bey. 22. to have been entered into with (c) 36 & 37 Vict. c. 19, Burns v. reference to the laws then in force, Nowell, 5 Q. B. D. 444, 49 L. J. which, therefore, are to be deemed 468. as forming a portion of their (d) Hickson v. Darlow, 52 L. J. essence, and with reference to Ch. D. 453; aff'd, L. R. 23 Ch. D. which they are to be construed : 690. see Reynolds v. Hall, 2 111. 35 ; (e) R v. St. Sepulchre, 28 L. J. Feemster v. Ringo, 5 T. B. Mon. M. C. 187, 1 E. & E. 813 ; and see (Ky.) 336 ; Duckham v. Smith, Id. R. v. Ipswich Union, 2 Q. B. D. 372. 269 ; Sunderland v. Sussex, 51 L. (a) Per Jessel, M. R., in Hasluck J. M. C. 33 ; Barton Regis v. Liver- v. Pedley, 19 Eq. 274. pool, 3 Q. B. D. 295 ; Gardner v. (b) Moon v. Durden, 2 Ex. 22 ; Lucas, 3 App. 582. Pettamberdass v. Tha6okorseydass, 63 People v. State Auditors, 9 7 Moo. P. 0. 239. See Exp. Mich. 327. 24 370 RETROACTION. [§ 275 for certain work where the acceptance, under the law in force when it was signified, made the same binding." 4 An act forbidding the enforcement of a vendor's, lien, unless recorded, after a conveyance by the vendee, could not affect such liens acquired before the passage of the act, though unrecorded, because then the lien was independent of any title-bond or mortgage, and was a vested right in the ven- dor. 60 So, an aet prohibiting the enforcement of judgments by the sale of defendant's property in certain specified cases was held inapplicable to judgments rendered before its passing. 68 And an act giving to administrators certain powers over the lands of defendants, was held inapplica- ble to cases, and not to authorize them to take possession of lands, the property in which had vested in the heirs before its passage. 67 So the statutes, enlarging the rights of mar- ried women over their property, and curtailing the interests of husbands in, and their control over, the same, have been uniformly held not to destroy any rights in such property vested in husbands at the date of their enactment. 68 And so a statute changing the rule as to dower. 69 An act abol- ishing a district in a county for the election of a revenue com- missioner, providing that thereafter the county should have 64 Re Prot. Episc. School, 58 law, could become vested only Barb. (N. Y.) 161. upon her surviving him. ±Sy the 65 Jordan v. Wisner, 45 Iowa, 65. subsequent act of 1875, it was made See Evans v. Williams, 2 Dr. & S. to vest upon transfer of title to a 324, post, § 276. purchaser. It was held that the 66 Lockhart v. Tinley, 15 6a. latter act was inapplicable to the 496. case of the mortgage referred to, "Van Fleet v. Van Fleet, 49 so as to affect the rights of the Mich. 610. mortgagee : McGlothlin v. Pollard, 68 See Jassoy v. Delius, 65 111. 81 Ind. 228. See same principle 469 ; Bowden v. Gray, 49 Miss, in Leaser v. Owen Lodge, 83 Id. 547 ; Lefever v. Witmer, 10 Pa. St. 498, as to act, 1881 vesting wife's 505; Mann's App., 50 Id. 375; interest on execution of sheriff's Quigley v. Graham, 18 Ohio St. deed. The opposite effect was 42 ; Hershizer v. Florence, 39 Id. given to an act destroying the 516: Metrop. B'k v. Hitz, 1 wife's dower in the husband's lands Mackey (D. C.) Ill ; Booknight v. sold on execution during his life- Epting, 11 S. C. 71 ; Darrenberger time: Sturtevant v. Norris, 30 v. Haupt, 10 Nev. 43 ; Edwards v. Iowa, 65. As to the effect of the Edwards, 1 C. &E. 229. See §278; statute of limitations upon a but see § 281. widow's right of dower in lands 69 Noel v. Ewing, 9 Ind. 37. aliened by the husband in his life- When a mortgage was made, the time, see Care v. Keller, 77 Pa. St. wife's inchoate interest in her 487. husband's land, as then defined by •' 6] RETROACTION. 371 but one commissioner, and providing that the act should be in force from its passage, was, nevertheless, held not to abridge the term of office of the commissioner then acting, or his authority to act during the period for which he was elect- ed. 70 An act giving to the grantee of a life-tenant, when sued by the remainderman, upon the determination of the life estate, the benefit of the increased value of the premises by reason of improvements made by the life-tenant, would not affect the rights of parties except where the improve- ments were made after its passage. 71 So, an act giving the husband without an estate by the courtesy in his wife's lands the benefit of improvements placed by him upon them ; 7a and an act giving a similar benefit to bona fide occupants of real estate. 73 An act relieving the husband of his com- mon law liability for the debts of his wife, dum sola, was held not to be retroactive, 74 and a statute forbidding eject- ment for mortgaged premises before foreclosure, not to ap- ply to mortgages given before its enactment. 75 ] § 276. The Bankrupt Act of 1849, which made a deed of arrangement "now or hereafter" entered into by a trader with six-sevenths of his creditors binding on the non-execut- ing creditors, at the expiration of three months after they " should have had " notice, was held to apply only to deeds executed after the passing of the Act (a). To apply such an enactment to past transactions, even though the property had been completely distributed among the creditors who had signed, would have been so unjust, that it was justifi- able to seek any means of getting rid of the apparent effect of the word " now," which was accordingly understood as re- stricted to arrangements not completed but yet binding in equity at the time when the Act was passed. So, a non- 10 Peters v. Massey, 33 Gratt. v. Middleton, 8 Ex. 352, 22 L. J. (Va. ) 368. Ex. 109 ; Marsh v. Higgins, 9 C 11 Folsom v. Clark, 73 Me. 44. B. 55] ; 1 L. M. & P. 253 ; Larpent « Shay's App., 51 Conn. 162. v. Bibby, 5 H. L. 481 ; 24 L. J. TS Wilson v. Red Wing Sch. Q. B. 301 ; Noble v. Gadban, 5 Distr., 22 Minn. 488. H. L. 504 ; Exp. Pho?nix Bessemer 14 Clawson v. Hutchinson, 11 Co., 45 L. J. Ch. 11. See also S. C. 323. Reed v. Wiggins, 13 C B. N. S. 15 Baldwin v. Cullen, 51 Mich. 220 ; 32 L. J. 131. Comp. Elston 33. And see Hopkins v. Jones, v. Braddick, 2 Cr. & M. 435 ; Exp. 22 Ind. 310. Dawson, L. R. 19 Eq. 433. («) 12 & 13 Vict. c. 106 ; Waugh 372 RETROACTION. [§ 276' trader was held not liable to adjudication as a bankrupt in re- spect of a debt contracted before the enactment, which first made non-traders liable to the bankruptcy laws (a). So, it was held that the heavier legacy duty imposed on annuities by the Succession Act of 1853, did not affect an annuity left by a testator who died before that Act came into oper- ation ; though the payment was not made till after it was in force (b). The first section of the Mercantile Law Amend- ment Act of 1856, which provides that no fi. fa. shall preju- dice the title to goods, of a bona fide purchaser for value, before actual seizure under the writ, was held not to apply where the writ had been delivered to the sheriff before the Act was passed. As the execution creditor had the goods already bound by the delivery of the writ, the statute, if re- trospective, would have divested him of a right which he had acquired (c). The 14th section of the same Act, which provides that a debtor shall not lose the benefit of the Statute of Limita- tions by his co-debtor's payment of interest, or part payment of the principal, was held not to affect the efficacy of such a payment made before the Act was passed (d). A different decision would have deprived the creditor of a right of action against one of his debtors. The provision in the Judicature Act of 1875, that in winding up companies whose assets are insufficient, the bankruptcy rules as to the rights of creditors and other matters shall apply, was held not to reach back to a company already in liquidation when the act was passed (e). The 23 & 24 Yict. c. 38, s. 4, which enacted that no judgment which had not already been, or should not there- after be entered and docketed, should have any preference against heirs or personal representatives, in the administra- tion of the property of the deceased debtor, did not, for a sim- ilar reason, extend to a judgment obtained against a debtor who had died before the Act was passed (/). And acts (a) Williams v. Harding, L. R. 1 N. 556, 28 L. J. Ex. 286- H L (d) Jackson v. Woolley, 8 E. & (b) lie Earl Cornwallis, 25 L. J. B. 776, 27 L. J. Q. B. 448. Ex. 149, 11 Ex. 580. (?) Re Suche & Co., 1 Ch. D. 48. (c) Williams v. Smith, 4 H. & (/) Evans v. Williams, 2 Dr. & §§ 277, 278] retroaction. 373 requiring the recorder of deeds, etc., to keep a direct and an adsectum index, and providing that the entry of recorded deeds and mortgages in such indexes shall be notice to all persons of the recording of the same, was held not to be retroactive so as to apply to an instrument recorded before the passage of either of such acts. 78 § 277. Acts Imposing New Liabilities. — [An act imposing new liabilities will not be construed to have a retroactive effect ; as, where an act passed in 1839, provided that ten per cent, damages should be awarded against an adminis- trator, and his sureties on his bond, it was held inapplicable to a bond executed in 1837." So an act prescribing new penalties against defaulting tax payers ; 78 making the defence of usury unavailable to bona fide endorsers; 78 allowing actions against railroad companies, common carriers and towns for loss of life by negligence; 80 increasing the costs on convic- tion for an offence. 81 And the acts imposing liabilities upon married women, in respect of their torts and contracts, have been held not to apply retroactively to their torts com- mitted, or contracts made, before the passage of such stat- utes. 82 ] § 278 Acts Conferring Benefits. — The 5 & 6 Vict. C. 45 which first gave the exclusive right of public performance of copyright music, was held not to extend to compositions published before the Act (a). Even a statute which confers a benefit, such as abolishing a tax, would not be construed retrospectively, to relieve the persons already subject to the burden before it was abolished. An Act passed in August, providing that on all goods captured from the enemy, and S. 324, 34 L. J. 661. [See Jordan To apply such an act to convic- v. Wisner, 45 Iowa, 65, ante, tions for offences commit ted before § 275.] its passage, it was there said, 76 Stockwell v. McIIenry, 107 Pa. would be to give it an ex post facto St. 237. operation. « Steen v. Finley, 25 Miss. 535. 8 * See Bryant v. Men-ill, 55 Me. 18 Bart ruff v. Remey, 15 Iowa, 515 ; Lee v. Lanahan, 59 Id. 478 ; 257. Hershizer v. Florence, 39 Ohio St. « North Bridge-water B'k v. 516 ; Tiunbull v. Forman, L. R 15 Copeland, 7 Allen (Mass.) 139. Q. B. D. 234 ; Conolan v. Leyland, so Kelly v. R R Co., 135 Mass. L. R 27 Ch. D. 632. 448. (a) Exp. Hutcbins, 4 Q. B. D. 81 Caldwell v. State, 55 Ala. 133. 90. 374 RETROACTION. [§ 278 made prize of war, a deduction of one-third of the ordinary duties should be made, did not apply where the prize with her cargo, though condemned in September, had been brought into port in June, when certain duties accrued due {a). [So, an act which conferred upon " any borough" a series of powers not theretofore possessed by boroughs under the general borough law of the state, was held to apply only to boroughs incorporated under it. 83 And where a married woman, after the passage of an act conferring certain enlarged rights and powers upon married women in respect of their property, comes into possession of real estate, draw- ing her title through a will that took effect and vested her right of property in the land before the passage of the act,, her rights in the same are determined by the law as it stood prior to the passage of the enabling statute. 84 ] Although the Divorce Act, 20 & 21 Vict. c. 85, pro- vided that when a magistrate's order for protecting a de- serted married woman's property against her husband was made, the woman should be, and " be deemed to have been during the desertion," capable of suing and being sued, such an order would not enable her to maintain an action which she had begun before the order, but after the deser- tion (b). The 5 & 6 Will. 4, c. 83, s. 1, which empowered a patentee, with the leave of the Attorney-General, to enroll a disclaimer of any part of his invention, and declared that such disclaimer should be deemed and taken to be part of his patent and specification, was construed by the Court of Exchequer as enacting that the disclaimer should be so taken (a) Prince v. U. S., '2 Gallison, (b) The Midland R. Co. v. Pye, 204. 10 C. B. N. S. 179, 30 L. J. C. P. 83 Com'th v. Montrose, 52 Pa. St. 314. She bad no right to sue 391. There were, however, in the before theorder was obtained, and context certain peculiarities which the Act did not intend to casl a aided this restricted and exclusive- liability on the defendants that ly prospective interpretation. they were not already under, and hi White v- Hilton, 2 Mackey take away their defences from (D. C.) 339. And see, to same them, by such an order : Per Erie, effect. Carpenter v. Browning, 98 C. J., lb. ; Comp. Warne v. Beres- 111. 282; Harris' Settled Est., L. II. lord, infra, § 286. [As to the 28 Ch. D. 171 ; Edwards v. right of married women, under Edwards, 1 C. & E. 229. As to statutes permitting them to sue the effect of such acts upon the alone for torts done them, to do so husband's interest in the wife's upon causes of action arising lands before the act, see ante, § before the passage of such acts, 275. see post, £287.] § 279] RETROACTION. 375 "from thenceforth"; the interpolation being deemed justifi- able to avoid the apparent injustice of giving a retrospective effect to the disclaimer, and making a man a trespasser by relation (a). But this construction was rejected by the Common Pleas, on the ground that the enactment really worked no injustice in operating retrospectively (b). § 27 ( J. Acts Creating Disabilities and Limitations. — [Corre- spondingly, statutes imposing new disabilities will not be presumed to intend a retroactive application of their pro- visions ; as, e. g., an act forbidding banks to pay interest on deposits ; 8a a proviso to an act extending the charter of a bank, that it should not take more than six per cent, dis- count, when previously it had been allowed seven ; 86 or an act prohibiting the intermarriage of white persons with Indians. 87 It was also held that an act providing for a limi- tation to three years of all tax mortgages and tax privileges, applied only to future cases ; 88 that an amendment limiting the time within which actions for personal injuries must be brought to one year did not apply to causes of action accrued before the amendment; 89 and so as to an act changing from three years to one the limitation as to proceedings for modi- fying or vacating a final order or judgment. 90 Conversely, it has been said that the defence of the statute of limitations, when a right of action has become barred by the same, is a vested right, not to be impaired by subsequent legislation, 91 and a change therein has, therefore, been held inapplicable in an action which had been brought, and in which a replication upon the old statute had been filed, before the statute making the change was passed, 82 and generally in suits upon causes of action arising anterior to the enactment of such alteration ; 93 and an act reviving an earlier one which (a) Perry v. Skinner, 2 M. & W. 89 Goillotel v. New York, 87 471 ; and per Cresswell, J. . in N. Y. 441 ; Carpenter v. Skimer, Stocker v. Warner, 1 C. B. 1G7. 24 Hun (N. Y.) 4G4. (6) R. v. Mill, 10 C B. 379. 90 Lee v. Cook, 1 Wy. Ter. 413. 85 Hannum v. B'k, 1 Coldw. See post, £§ 284, 287. (Tenn.) 398. 91 See Ryder v. Wilson's Ex'rs, 86 Pearce v. B'k, 33 Ala. 693. 41 N. J. L. 9. 81 Illinois L. & L. Co. v. Bonner, 9i Bradford v. Barclay, 42 Ala. 75 111. 315. 375. 88 State v. Recorder, 34 La. An. 93 Bratton v. Guy, 12 S. C. 42. 178. 376 RETROACTION. [§ 279 permitted executions on judgments more than five years alter entry was confined to judgments thereafter rendered." But this principle seems not to extend to statutes limiting the period within which prosecutions are permitted to be brought for crimes. Thus, where a person committed a crime, the prosecution for which, at the time, was limited to two years, it was held that an act passed after the expira- tion of the two years, repealing that limitation and extend- ing the period within which a prosecution might be brought to three years beyond the original limit, warranted the prosecution of the offender. 95 Not quite so far goes a case which arose in Pennsylvania and involved the discussion and application of an act declaring that thereafter the offence of forgery should not be deemed barred by limitation, when the indictment was brought or exhibited within live years after the commission of the offence, the period previously limited having been two years. The act was held applica- ble to the case of a person who had committed a forgery within two years before its passage, but more than two years before his indictment. It was said that the statute could clearly not be classed as an ex post facto law, as it did not make that criminal which was not so when done, 96 or an act punishable in a manner in which it was not punishable when committed ; 97 and that, as the two years had not completely run between the commission of the offence and the passage of the act, the offender had, therefore, at the later date, ac- quired no right to an acquittal on that ground. But, the effect of the preceding case is approached in the passage contained in the decision of the latter : " An act of limita- tion is an act of grace purely on the part of the Legislature. Especially is this the case in the matter of criminal prosecu- tions. The state makes no contract with criminals, at the time of the passage of an act of limitation, that they shall have immunity from punishment if not prosecuted within the statutory period. Such enactments are measures of M Mann v. McAlee, 37 Cal. 11. "See Fletcher v. Peck, 6 95 Shite v. Moore, 12 N. .1. L. Cranch, 138 ; Shepherd v .People, ■ins 25 N. Y. 406; Haitung v. People, 96 See Matter of Garland, 32 22 1(1.104. Comp. Kieh v. Fian- II., w 241. ders, 39 N. II. 305. § 280] RETROACTION. 377 public policy only. They are entirely subject to the mere will of the legislative power, and may be changed, or repealed altogether, as that power may see fit to declare." And yet this broad doctrine is qualified in what follows : " Such being the character of this kind of legislation, we hold that, in an}' case where a right to acquittal has not been absolutely acquired by the completion of the period of limitation, that period is subject to enlargement or repeal." 98 The more •extended doctrine of the New Jersey decision flows from the nature of the reasoning upon which it is based ; it being argued, that, as an offender against a statute, which is re- pealed, may yet be punished under it when revived by the subsequent repeal of the repealing act," there is nothing more than a phantastical distinction to be drawn between the revival of a right to prosecute, when such right has been suspended by the revocation of a statute in which it is inherent, and the revival of the right when the suspension has been the result of lapse of time under a statute of limi- tations, 100 — such a statute, in no sense, operating as a pardon of the offence. 101 ] § 280. What not within Rule against Retroaction. Inchoate Rights. — But a statute is not retrospective, in the sense under consideration, because a part of the requisites for its action is drawn from a time antecedent to its passing (a). The 5th section of the Mercantile Law Amendment Act, which en. titles a surety who pays the debt of his principal, to an assignment of the securities for it held by the creditor, would apply to the case of a surety who had entered into the suretyship before the Act, but had paid off the debt after it came into operation (J). The 2nd section of the In- fants' Relief Act, which enacts that no action shall be 98 Com'th v. Duffy, 96 Pa. St. 101 State v. Moore, ubi supra. 506, 514. Comp. State v. Kichols, 26 Ark. 99 Com'th v. Getchell, 16 Pick. 74. (Mass.) 452; Com'th v. Mott, 21 Id. (a) Per Lord Denmnn in R. v. 492, St,. Mary, 12 Q. B. 127; P. v. 100 State v. Moore, supra, at p. Christchurch, Id. 149. Sec P. v. 234 (see the briefs of counsel in Portsea, 7 Q. B. D. 884, 50 L. J. that case for a collection of views 144. Exp. Dawson, 19 £q. 433. and authorities bearing upon the (b) lie Cochran's Estate, L. P. 5 question); and see Bish., Stat. Eo. 209. Crimes, §§ 265, 266. ;;7^ RETROACTION. § 280 brought on a ratification, made after majority, of a contract made during infancy, was held to apply to ratifications of contracts made before the Act was passed (a). The Court of Chancery, which acquired jurisdiction under the 23 & 24 Vict. c. 35, to relieve in respect of the forfeiture of a lease in consequence of a breach of a covenant to insure, exercised this new jurisdiction where the breach occurred after, but the lease had been made before the Act was passed (b). And the provision of the Conveyancing Act of 1881, which relieved tenants against forfeiture for breach of covenant, was held to apply to a case where judgment had been already given before the Act was passed, and the landlord might have obtained possession, but for a stay of proceedings to give the tenant time to appeal (c). [So, an act authoriz- ing the imposition of a tax according to a previous assess- ment. 108 Nor does this objection affect an act enlarging the powers of married women because it applies to women, and to property belonging to women, who are covert at the date of its passage. 103 Upon a similar footing would seem to stand an act declaring that marriages between persons within the prohibited degrees of consanguinity should not be pro- nounced void after the death of either of the parties where the marriage was followed by cohabitation and the birth of issue; such an act being held to apply alike to marriages contracted before, and to those contracted after, the passage of the same. 104 And so an act "for the better security of mechanics" was held applicable when the work was done after the law took effect, though the contract therefor was entered into before its passage. 105 " (a) Exp. Kibble, L. R. 10 Ch. L. 287. 37;;. ><>* Baity v. Cranfield, 91 K C. ©Page v. Bennett, 2 Giff. 117, 2 ( .)3. However, ads legitimating 39 I. .1. Cb. 398. children are liberally construed. (c)4l & 45 Vict. c. 41. s. 14; See ante, § 108, Brower v. Bowers, Quilter v. Mapleson, 9 Q. B. D. 1 Abb. A.pp. Dec. (K Y.) 214. G72. lo: ' Miller v. Moore, 1 E. D. 10 ' 2 Locke v. New Oilcans, 4 Smith (N. Y.) 739. And see post, Wall. 172. Seeante, ? 260, note. S 2S7. lint see Shutlleton v. Hill, See Goodyear v. Rumbaugh, 03 Cal. 483, where an act giving a 13 Pa. St. 181; Hill v. Goodman, lieu to loggers, etc., was held not 1 Woodvv. (Pa.) 207; Cherokee to apply where the contract was Lodge v. White, 63 Ga. 742. entered into before the passage of Comp. Naylor v. Field, 29 N. J. the act, § 281] RETROACTION. 379 § 281. [Again, mere inchoate rights, depending for their original existence upon the law itself, may be abridged or mod- ified by the Legislature at its pleasure, and statutes will not be presumed not to affect such rights existing in an nnperfected state at the time of the enactment. 100 As a general rule, whenever a statute gives a right, in its nature not vested, but remaining executory, if it dues not become executed before a repeal of the law giving it, it falls with the law and cannot be afterwards enforced. 107 So, the right to a penalty not reduced to judgment falls with the repeal of the statute creatine the right of action, and cannot be afterwards enforced. 108 And so, where the law has predicated a right of one of two parties upon a certain relation between them, as to property owned or to be acquired by either of the parties, it may provide for the forfeiture of that right for non-fulfill- ment of the obligations of such relation, not only in so far as the same shall be entered into in the future, but also as regards rights springing as to future property, from sueh relations entered into in the past. Thus, it was held that an act allowing a married woman deserted by her husband to convey her real estate by her own sole deed, without his joinder, and thereby destroying his curtesy in the same, applied where the marriage was contracted before the passage of the act as to lands acquired after the same. In answer to the claim, that, before the passage of the act, the husband had such a vested right, not only in the property then owned by the wife, but also in that which she might subsequently acquire during their marriage, by virtue of the inherent power of the marriage contract, without regard to the performance 106 Smith v. Packard, 12 Wis. See ante, § 257. It was held, iii 371- and see People v. Livingstone, Tobin v. Hartshorn, 0!t la. 0-18, 6 Wend. (N. Y.) 526, post, § 290. that a penalty provided by statute 101 Van Inwagen v. Chicago, 61 to enforce the payment of a tax 111. 31 : so held with reference to voted in aid of a railroad wits but the right of a city to claim (under a remedy for its enforcement (see a local act which was held §§ 387, 290), in which the corpora- repealed by a later general one tion had no vested right, except so making a different disposition of far as the penally (which accrued the whole matter) for the city monthly) had already accrued, and treasury 2 per cent, of the premi- that a repeal of toe statute cut off urns effected by insurance com- its further operation as to a tax panies not incorporated under the already voted. Comp. Browning laws of the state. v. Cover, 108 Pa. St. 595. 108 State v. Youmans, 5 Ind. 280. 380 BETBOAOTION. [§282 of that contract on his part, and as a right acquired at its inception, which could not be abridged, altered ur modified by any power short of his own will, so long as the marriage relation was not legally dissolved, it was said by the court: "But the statement of this proposition is its own refutation. The very premise on which the Act is founded is that the marriage contract has been violated ; that the husband has deserted his wife and refuses to support and maintain her. . . But, independently of the arguments which may be drawn from the nature of, and duties involved in, the marriage contract, . . [the husband's] right to curtesy in his wife's estate was no part of the marriage contract, but it resulted from the operation of statutory enactments existing at the time of her death. 100 . . [Her] title to the property in dispute had no existence until after the passage of the Act . . and until the acquisition of that title [he] had no right in the premises inchoate or otherwise. . . On the other hand, whatever rights he may [thereafter] have had therein he held in subjection to the then existing laws.'" § 282. Effect of Legislation in General upon Pending Causes. — In general, when the law is altered pending an action, the rights of the parties are decided according to the law as it existed when the action was begun, unless the new statute shows a clear intention to vary such rights. Thus, the Medical Act, 21 & 22 Vict. c. 90, which enacts that no person shall, after the 1st of January, 1859, recover any charge for medical treatment " unless he shall prove at the trial" that he was on the Medical Register, was held not to apply to an action for medical services, begun before that date, but tried after it (a). An administration bond given to the Ordinary not being assignable until the 21 & 22 Vict, c. 95, an action begun by the assignee before that Act was 109 See the same doctrine as to no Moninger v. Ritner, 104 Pa. dower in Pennsylvania : Melizet's St. 298. App., 17 Pa. St. 449. And see (a) Thistleton v. Frcwer, 31 L. Guerin v. Moore, 25 Minn. 4G2 ; J. Ex. 230 : Wright v. Greenroyd, Morrison v. Rice, 35 Id. 43G, as to 1B.& S. 758, 31 L. J. 4. Comp. the right of the Legislature to take Leman v. Housley, L. R. 10 Q. B. away the inchoate right of dower. 66. § 283] RETROACTION. 38! passed, was held not maintainable after it came into operation (a). [So, an act declaring inapplicable to pros- ecutions for misdemeanors a law which forbade the conviction of a defendant in a criminal case upon the uncorroborated evidence of an accomplice was held not to affect a pending prosecution." 1 To like effect, as to inapplicability to pending actions, was the rule enforced in the cases of an act requiring proof of payment of taxes in order to establish a claim of adverse possession; 113 of an act providing, that, where the plantiff sued as a corporation, the fact of incorporation should be taken as admitted unless a special demand for proof of it be made; 113 and of an act conferring on the creditors of a defendant in an attachment proceeding the right to intervene and defend in case of his failure to do so, and providing, that, if the judgment be for the intervenor, it should be for any damages compensatory or vindictive, found by the jury, and should abate the suit. 114 ] § 283. Where Retrospective Operation is to be Given. Clear Intent. — It is hardly necessary to add, that, [constitutional objections being out way,] whenever the intention is clear that the act should have a retrospective operation., it must unquestionably be so construed, however unjust and hard the consequences may appear (b). [Retrospec- tive laws, unless ex post facto, or impairing the obligation of contracts, do not fall within the prohibition against such laws contained in the constitution of the United States. 116 Hence, within the scope of legislative power, an act will, and must, be given a retroactive efficacy, where such au .in- tention clearly appears. 116 This proposition lias, indeed, (a) Young'v. Hughes, 4 H. & N. C. B. 496 ; Bell v. Bilton, 4. Bin- 76. 615. 111 Hart v. State, 40 Ala. 32. 115 Calder v. Bull, 3 Dall. 386 ; 1,2 Sharp v. Blankenship, 59 Cal. Satterlee v. MatthewsoD, 2 Pet. 288. 413 ; Watson v. Mercer, 8 Id. 88 ; 113 Goodwin, etc., Co. v. Darling, People v. Supervisors. 03 Barb. 133 Mass. 358. (N. Y.) 85; Reed v. BeaH, 42 Miss. 114 Powers v. Wright, 62 Miss. 472 ; Grim v. School Distr., 57 Pa. 35 : the statute is said to be reme- St. 43o ; Lane v. Nelson, 79 Id. dial as to the intervenor, but penal 407 ; Smith v. Gilder, 20 Ark. as to the plaintiff: Ibid. Compare, 527. upon this subject, post, §§ 284, 116 Bambaugh v. Bambaugh, 11 285, et seq. Serg. & R. (Pa.) 19. See also cases (b) See ex. gr. Stead v. Carey, 1 in preceding note, and § 271 and 3S2 RETROACTION. [§ 284 been qualified so as to concede, when there was no escape from such construction, a retroactive effect to statutes which destroy or impair no vested rights. 117 But it would seem, that, iu the absence of any restriction contained in the con- stitution of the particular state, going beyond that imposed by the federal constitutional, and expressly forbidding retro- spective legislation or protecting vested rights against the interference of the Legislature, this limitation is untenable ; and that the fact, that, a statute, clearly disclosing an inten- ion to act retrospectively, and neither obnoxious to the objec- tion of impairing the obligation of contracts, nor partaking of the character of an ex post facto law, 11 * divests vested rights, gives no authority to the courts to refuse it such operation, however repugnant this may be to the principles of sound legislation. 119 And, however strong the presump- tion against an intention retrospectively to affect the rights of parties may be in mere private cases between individuals, in great national concerns, the contract of the nation, though sacrificing, for national purposes, individual rights acquired by war, must receive a construction conforming to its evi- dent design, the question of compensation being one for the Government to consider, not for the courts. 120 § 2S4. Where no Vested Rights Affected.— [Still less potent is the presumption where no vested rights are affected. Thus, where an act declared, as a rule of construction of wills, that a general devise or bequest of the testator's real or personal estate should operate as an execution of a power of appoint- ment, unless a contrary intention appeared in the will, and declared the act operative as to the wills of all persons who notes, and Smith v. Gilder, 26 "• Weister v. Hade, 52 Pa. St. Ark. 527. 474; Grim v. Sell. Distr., supra ; 117 See People v. Spicer, 99 N. T. Lane v. Nelson, supra; (.'alder v. 225 ; Tilton v. Swift, -10 Iowa, 78; Bull, supra; Satterlee v. Matthew- Baldwin v. Newark, 38 N.J. L. son, supra; Watson v. Mercer, 158 ; Sturgis v. Hull, 48 Vt. 302. supra. And see Clinton Bridge, 10 118 As to what constitutes such, Wall. 45-1, where it was held that .Matter of Garland, 32 How. an act legalizing a bridge over a 241 ; Fletcher v. Peck, 6 Cranch, navigable river will abate a suit 138; Shepherd v. People, 25 N. Y. ready for hearing, brought to 106; Com'th v. Duffy, 96 Pa.. St. enjoin its construction as a 506, Ml; ante, § 279"; Caldwell v. nuisance. See also Dent v. Hol- State, 55 Ala. 133, ante, § 277; brook. 54 Cal. 145. e v. Moore, 42 N. J. L. 208, 12 ° The Peggy, 1 Cranch, 103. 231-2. § 284] RETROACTION. 383 should die after the date of its passage, this was held to extend the act, in terms, to all cases of wills executed before, as well as after its passage, where the testator died since the same.' 1 "] An Act (33 and 34 Yict. c. 29, s. 14) which enacted that every person " convicted of felony " should forever be dis- qualified from selling spirits by retail, and that if any such person should take out, or have taken out a license for that purpose, it should be void, was held to include a man who had been convicted of felony before, and had obtained a license after the Act was passed. Although the expression " convicted of felony" might have been limited to persons who should thereafter be convicted, yet, as the object of the Act was to protect the public from having beerhouses kept b}' men of bad character, the language was construed in the sense which best advanced the remedy and suppressed the mis- chief ; though giving, perhaps, a retrospective operation to the enactment (a). [Similarly, it was held that a statute which made one who had been convicted of the offence of petty larceny, and who should again commit the same offence guilty of a felony, was applicable to one who had committed the first offence prior to the taking effect of the statute. 122 ] The provision in the Bankrupt Act of 6 Geo. 4, which pro- tected " all payments made or which should thereafter be made" by a bankrupt before his bankruptcy, necessarily had a retrospective effect, unless the expression of payments " made " were to be altogether nugatory (b). After the passing of Lord Tenterden's Act, 9 Geo. 4, c. 14, which en- acted that in actions grounded upon simple contracts, no verbal promise should be "deemed sufficient evidence" of a new contract to bar the Statute of Limitations, it was held that such a promise given before the Act, and which was then sufficient to bar the statute, could not be received in evidence in an action begun before, but not tried till after the passing of the Act (c). This decision has been sup- 121 Auberfs App., 109 Pa. St. m Exp. Gutierrez, 45 Cal. 430. 447. Comp. ante, § 274. (b) Churchill v. Crease, 5 Bins:. (a) Hitchcock v. Way, 6A.&E. 177. 947 ; K. v. Vine. L. R. 10 Q. B. 195. (c) ITilliard v. Lenard, M. & M. 44 L. J. M. C, diss. Lush. J.; Chap- 297 ; Towler v. Chatterton, 6 Bin-, pell v. Purday, 12 M. & W. 303. 258. [The Pennsylvania Act ^8 384 KETKO ACTION. [§284 ported on the ground that the time for deciding what is or is not evidence, is when the trial takes place ; ,a3 and that when the Act told the judge what was and was not then to be evidence, he was bound to decide in obedience to it (a). But some stress is also to be laid on the circumstance that the Act did not come into operation until eight months af- ter its passing; for the concession of this interval seemed to show that the hardship in question had been in the contem- plation of the Legislature and had been thus provided for (I). [In the absence of such a provision, though not because thereof, a Vermont statute requiring a new promise, in order to have the effect of taking the case out of the statute of limitations, to be in writing, was held not to be retrospec- tive. 124 On the other hand,]an Act which was passed in August, but not to come into operation till October, made non-traders liable to bankruptcy, was applied to a person who contracted a debt and committed an act of bankruptcy be- tween those dates. It was considered that no injustice was done, since the Act had told him what would be the conse- June, 1881, requiring certain proof of the defeasible character of deeds absolute on their face, "made after the passage of this act," is of course inapplicable to instruments executed before the act : Nicolls v. McDonald, 101 Pa. St. 514 ; Unit ley's App., 103 Id. 23.] 123 It is said that statutes chang- ing the rules of evidence respecting past transactions, are to be regarded as affecting the remedy only, and not as impairing the obligation of contracts : Herbert v. Easton, 43 Ala. 547. And it is said, in Jour- neay v. Gibson, 5G Pa. St. 57, 00, that statutes retrospectively vali- dating defective acknowledgments of deeds are sustaiuable only be- cause supposed to operate, not upon the deed, or contract, changing it, but upon the mode of proof. At all events, such acts have, it seems, been pretty uniformly sustained: see Journeay v. Gibson, supra; Mercer v. Watson, 1 Watts (Pa. 330 ; Tate v. Stooltzfoos, 16 Serg. & R. (Pa.) 35 ; Fogg v. Holcomb, 64 Iowa, 621 ; Dentzel v. Waldie, 80 Cal. 138. And see Pureed v. Goshorn, 11 Ohio St. 641, where an act authorizing courts to correct mistakes in deeds of married women theretofore or thereafter made, was held retrospective. But see McEwen v. Buckley's Lessee, 24 How. 242 ; Ala., etc., Ins. Co. v. Boykin, 38 Ala. 510. The decision in Routsong v. Wolf, 35 Mo. 174, also to the contrary, was under a provision of the constitu- tion forbidding retrospective legis- lation. In Wright v. Graham, 42 Ark. 140, it was held that an act curing defective acknowledgments could not, in the Supreme Court, be applied to a case decided below before the passage of the act. But in Underwood v. Lilly, 10 Serg. & R. (Pa.) 97, a judgment was held cured by a validating act, though a writ of error had issued before its passage. (a) Per Cresswell, J., in Marsh v. Hi -gins, 9 0. B. 551, 1 L. M. & P. 203. But comp. sup., § 282. (6) Per Park, J., 6 Bing. 264. i2i Richardson v. Cook, 37 Vt. 599. § 284] RETROACTION. 385 quence of contracting the debt, before he contracted it (a). On this ground, also, it was held that the 11 & 12 Vict. c. 43, s. 11, which limits the time for taking summary proceedings before justices to six months from the time when the matter complained of arose, was held fatal to proceedings begun after the passing of the Act, in respect of a matter which had arisen more than six months before it was passed (//) ; though the interval between the passing of the Act and its coming into operation was only six weeks. If the act li come into immediate operation, it was observed, the hard- ship would have been so great, that the inference might have been against an intention to give it a retrospective operation; but the provision suspending its operation, for however short a time, was to be taken as an intimation that the Legislature had provided it as the period within which proceedings respecting antecedent matters might be taken (c). [Upon similar reasons, a retroactive effect was given to statutes limiting the time within which suits might be brought, 125 and judgment liens enforced, 1 " where ample time was left for the bringing of suits in the one case, and the enforcement of existing liens in the other. 127 And] in the same way the 10th section of the Merchantile Law Amend- ment Act, 1856, which enacted that no person should be en- titled to commence an action after the time limited, by reason of his being abroad or in prison, was held to apply to causes of action which had accrued before the Act was passed. But some weight was due to the circumstance that another section of the same Act kept alive in express terms a cause of action already accrued, and thus afforded the in- ference that no such intention had been entertained, as none was expressed, as regards cases under the 10th section ((/). [And when it is said that courts will, in the construction of statutes, presume against an intention to invade vested (a) Exp. Rashleigh, 2 Oh. D. 9 ; 346. comp. Williams v. Harding, L. R. I25 Fiske v. Brings, 6 R. I. 557. 1 II. L. 9. [See ante, §272.] 126 Buiwell v. Tullis, 12 Minn. (b) R. v. Leeds R. Co., 18 Q. B. 572. 343, 21 L. J. M. C. 193. See per ™ Comp. ante, § 279. Bovill, C. J , in Ings v. London and (d) Cornhill v. Hudson, 8 E. & S. W. R Co., L. R. 4 C. P. 19. B. 429; 27 L. J. Q. B. 8 ; Pardo v. (c) Per Lord Campbell, 18 Q. B. Bingham, L. R. 4 Ch. 735. 25 386 RETROACTION. [§ 285 rights, a distinction is to be drawn between the rights of private citizens and rights of counties, incorporated towns and cities, — public corporations created by the Legislature for political purposes, and invested with political powers to be exercised for the public good in the administration of civil government, — in fact, instruments of the govern- ment, subject at all times to the control of the Legislature with respect to their duration, powers, rights and prop- erty, and to the inspection, regulation, control and direction, in respect of its funds and franchises, of the government as the sole trustee of the public interest. As regards such corporations, there cannot, in any proper sense, be any question of an invasion of vested rights, nor any presumption against a design on the part of the Legislature to that effect which could materially allect the construction of a statute, 128 beyond the general presumption against an intention to change the law or the provisions of a charter. [Moreover, an act may affect the vested interests of one class of persons and not those of another. For instance, an act authorizing devisees to mortgage devised property for the purpose of paying the testator's debts may bind the heirs and devisees who applied for the act, but cannot affect the rights of testator's creditors. 129 ] § 285. Acts Relating to Procedure. — In several of the cases referred to in the preceding section the construction, though fatal to the enforcement of a vested right, by shortening the time for enforcing it, did not in terms take away any such right ; and they would, consequently, appear to fall within the general principle that the presumption against a retro- spective construction has no application to enactments which affect onty the procedure and practice of the Courts (a), even where the alteration which the statutes make has been disadvantageous to one of the parties. Although to make a law for punishing that which, at the time when it was done, was not punishable, is contrary to sound principle ; a law 128 See Hagerstown v. Sehner, 37 I29 Campbell's Case, 2 Blaud M<1. 180 ; Moera v. Reading, 21 (Md.) 20!). P;i. St. 188. (a) Wright v. Hale, 6 II. & N. 227 ; 30 L. J. Ex. 40. § 286] RETROACTION. 387 which merely alters the procedure may, with perfect propri- ety, be made applicable to past as well as future transac- tions (a); and no secondary meaning is to be sought for an enactment of such a kind. Xo person has a vested right in any course of procedure (b), [nor in the power of delaying justice, 130 or of deriving benefit from technical and formal matters of pleading. 131 ] He has only the right of prose- cution or defence in the manner prescribed, for the time being, by or for the Court in which he sues ; and if statute alters that mode of procedure, he has no other right than to proceed according to the altered mode (c). The remedy does not alter the contract or the tort; it takes away no vested right ; for the defaulter can have no vested right in a state of the law which left the injured party without, 132 or with only a defective, remedy. If the time for pleading were shortened, or new powers of amending were given, it would not be open to the parties to gainsay such a change ; the only right thus interfered with being that of delaying or defeating justice ; a right little worthy of respect (d). § 2S6. The general principle, indeed, seems to be that alterations in the procedure are always retrospective, unless there be some good reason against it (e). Where, for instance, the defendant pleaded to an action for a small sum, that the jurisdiction of the Court had been taken away by a Court of Requests Act, and that Act was repealed after the plea but before the trial ; it was held that the (a) Macaulay's Hist. Eng. vol. Warner v. Murdoch, 4 Ch. D. iii. 715; and vol. v. 43. 752. (b) Per Mellish, L. J., in Costa 13 ' 2 In Turnpike Co. v. Coin'lh, Rica v. Erlanger. 3 Ch. D. 69. 2 Watts (Pa.) 433, the broad prin- See ex. gr. The Dumfries Swab, ciple is asserted, that, wherever a 63, and cases, sup., § 177 ; [Berry right exists, but no remedy to en- v. Clary, 77 Me. 482.] force it. it is within the coustitu- 130 People v. Tibbets, 4 Cow. tioual power of the Legislature to (N.Y.) 384, 392; Hoffman v. Locke, provide one. 19 Pa. St. 57. (d) See ex. gr. Cornish v. Hock- 131 Com'th v. Hall, 97 Mass .-,70, ing, 1 E. & B. 602, 23 L. J. 142 ; 574. Dash v. Van Kleeck, 7' Johns. (c) See the judgments of Wilde, (N.Y.) 503; The People v. Tihbets, B., in Wright v. Hale, 30 L. J. Ex. 4 Cowen, (N. Y.) 392. 40 ; 6 H. & N. 27; and of Lord (e) See per Lord Blackburn in Wensleydale in Atty.-Genl. v. Gardner v. Lucas, 3 App. 603, and Sillem, 10 H. L. 704, 33 L. J. Ex. Kimbray v. Draper, L. R. 3 Q. B. 227; and per James, L. J., in 163. 3S8 RBTJROACTION. [§286" plaintiff was entitled to judgment (a). When the Legisla- ture gave a new remedy by the Admiralty Aets of 1S40 and 1 SGI, for enforcing rights in the Admiralty, those Acts were held to extend to rights which had accrued before the new remedy had been provided (b). So, the provision of the Common Law Procedure Act of 1852, s. 128, that the plaintiff might issue execution within six years from the recovery of a judgment, without revival of the judgment, was held to apply to a judgment which had been recov- ered more than a year and a day before the Aet was passed, and which therefore could not have; been put in foree under the previous state of the law without revival (c). The enactment G & 7 Vict. c. 73, s. 37, which made attorneys' bills taxable, for work done out of Court, and which also provided that, from the passing of the Act, no attorney should bring an action for costs until a month after he had delivered his bill, was held to apply to costs incurred before the passing of the Act (d). On this principle, the 3 tv; -A Will. 4, c. 42, s. 31, which provides that in actions brought by executors, the plaintiff shall be liable for costs, was held to apply to an action begun before the Act came into operation (y a defendant from a justice's M. 405 ; Grant v. Kemp, Id. 636 ; judgment to the county court, §287] RETROACTION. 389 and a similar effect was given to the Comity Courts Act of 1867, as regards giving security for costs (a). The pro- vision which extended the time for making decrees nisi absolute from three to six months, applied to suit pending when the Act came into operation (b). § 287. [In this country, the general rule seems to be, in accordance with the English, that statutes pertaining to the remedy, i. . (a) Kimbray v. Draper, L. R. 3 ante, § 280. Q. B. 160. See another instance l31 Coosa River Steamb. Co. v. in Watton v. Watton, L. R. 1 P. & Barclay, 30 Ala. 120. WT. 227. 138 Collier v. State, 10 Ind. 58. (b) Watton v. "Watton, 1 P. & The act, in this case, provided that M. 227. "all rights of actions secured by 133 Morton v. Valentine, 15 La. existing laws may be prosecuted An. 150. in the manner provided in this 11 Richardson v. Cook, 37 Vt. act," and repealed inconsistent 5!)'.t. provisions. 135 See Sampeyreac v. U. S., 7 Pet. IM Wood v. Westborough, 140 222 ; People v. Supervisors, 63 Mass. 403, so as to be applicable to Barb. (X. Y.) 85 : People v. Tib- a proceeding begun alter the act bets. 4 Cow. (X. Y.) 384 : Matter took effect, though the laud had of Beams, 17 How. Pr. (X. Y.) been previously taken. The act is 459; Dobbins v. Bank. 112 111. said to lie remedial, and hence the 553; Lane v. Nelson, 79 Pa. St. construction. 390 RETROACTION. [§ 237 Upon the same principle, an act authorizing justices of the peace to issue garnishee process was held applicable to judg- ments rendered before its enactment; 140 an act limiting the amount of the attorney-fee to be taxed upon the foreclosure of school fund mortgages, to a mortgage previously given ; M1 an act forbidding a party who received money, etc., as a con- sideration for a contract made on Sunday to defend an action on the contract on that ground without restoring the conside- ration ;"'"' an act authorizing assignees of notes not negotiable to sue thereon in their own names, to assignments made before its passage ;'" a provision that judgment against the principal in an injunction bond shall conclude the surety also, to a bond executed before the act. 144 And so, an act dispensing, in order to a recovery upon an official bond, with the necessity of previously establishing a devastavit against the principal, 1 " and an act changing the mode of appraising property for sale on the foreclosure of mortgages. 146 The various statutes authorizing married women to sue alone upon con- tracts 147 and for injuries done to their persons or characters, and making the damages recovered their separate property, have been construed to embrace causes of action arising before the passage of the act, where the suit was not com- menced until after the same. 148 And acts extending the period of limitation for certain purposes, and waiving condi- tions prescribed by former acts in regard to, e. g., the issuing of executions, have been permitted a retrospective operation clearly intended by them. 149 An act subjecting lands to sale upon execution for the satisfaction of judgments was held to- 140 Fisher v. Hervey, 6 Col. 16. 148 Ball v. Bullard, 52 Barb. "' Kossuth Co. v. Wallace, GO (N. Y.) 141 ; Logan v. Logan, 77 Iowa, 508. Ind. 558 ; Weldon v. W inslow, 143 Berry v. Clary, 77 Me. 482. L. R. L3 Q. B. D. 784 : Severance 143 Harlan v. Sigler, 1 Morr. (la.) v. Civil Serv. Supply Ass'n, 48 39 : but not to the extent of exclud- L. T. N. 8. 485. Comp. contra: ing any defence that might have Weldon v. Riviere, 53 L. J. Q. B. been made in suits thereon in the I). 448. names of t lie payees : Ibid. 149 See lfenchall v. Schmidtz, 50 141 Pickett v. Boyd, 11 Lea. Mo. 454; Caperton v. Martin, 4 (Tenn.)498. W. Va. 138; such acts being 145 Winslow v. People, 117 111. regarded as affecting the remedy 152. only : see State v. Moore, 42 N. J. ,4G Jones v. Davis, 6 Neb. 33. L. 208 ; Brewster v. Brewster, 32 147 Buckingham v. Moss, 40 Com. Barb. (N. Y.) 428. Comp. ante, 461. § 279. § 2S3] RETROACTION. 391 apply to judgments obtained upon contracts made before its passage. 160 § 288. Effect of Acts Relating to Procedure only on Pending Pro- ceedings. — [Indeed, much of this kind of legislation is hold to apply, not only to existing causes of action, but also to pend- ing proceedings. 151 It is said, that an act dealing with proced- ure only applies, unless the contrary intention is expressed, to all actions falling within its terms, whether commenced before or after the enactment. 1511 Thus, an act giving appeals from certain enumerated judgments and orders, applies to such judgments and orders made prior to its passage ; 153 as does an act providing for the granting of summary relief, by the court or a judge at chambers, from an order, judgment, etc., of the court in certain cases; 154 and an act extending the time within which a garnishee in a justice's court may file his answer, 155 or limiting, by way of amendment to a former act prescribing no period, the right of appeal from township boards of equalization to sixty days after adjoin- ment, 158 or imposing additional requirements upon parties applying for a change of venue. 157 So, an act enlarging the jurisdiction of the United States Circuit Court was held applicable to pending causes. 158 And the same operation was given to an act directing that, where a distributee of an intestate's estate is unable to give the security to refund required by it, the fund shall be put at interest upon secur- 160 Reardon v. Searcy, 2 Bibb Fed. Rep. 147 ; Koch's Est., 5 (Ky.) 202. But a subsequent act Rawle (Pa.) 338. See also Indian- restricting the operation of the apolis v. Imberry, 17 Ind. 175. former one, to contracts made after 153 McNamara v. R. R. Co., 12 its enactment was not permitted to Minn. 388. Compare, however, as affect the validity of a sale of land to prospective operation of an upon execution on a judgment actgiving writ of error: Kingsbury upon a contract made before the v. Sperry, 119 111. 279, and post, § passage of the original act, but 290. before the enactment of the restrict- 154 Bonsley v. Ellis, 39 Cal. 309. inn- one. 155 Willis v. Fincher, 68 Ga. 444. 161 See Bish., Wr. L. § 84; 166 Slocum v. Fayette Co., 61 Comp. ante, § 282. See Denman Iowa, 169. See ante, § 272, and v. McGuire, 2 Centr. Rep. 104, post, § 289. where proceedings begun under 157 Lee v. Buckheit, 49 Wis. 54. the N. Y. Code of Remed. Just. The new law took effect pending and continued under the Code of an appeal from an order changing Procedure were held valid. the venue. 152 Singer v. Hasson, 50 L. T. 158 Larkin v. Saffarans, 15 Fed. K S. 326 ; Larkin v. Saffarans, 15 Rep. 147. See ante, § 271. 392 RETROACTION. [§§ 289, 290 ilv to be approved by the Orphans' Court; 160 to acts relating to amendments of affidavits and certification of such as are taken in another state ; 1M to a statute regulating the invest- ment of the proceeds of sale under judicial decree, the sale being made after, under a decree made before, the passage of the act;' 61 and to acts giving the Government the right of peremptory challenge in criminal cases, 102 authorizing amendments of the defendant's name in indictments, 163 or changing the forms of procedure for the trial of offences. 16 ' 1 § 289 [On the other hand, it lias been said that proceed- ings already pending at the time of the enactment, even of statutes merely affecting remedies, are to be deemed exempt from their operation, unless a contrary intent appears ;"" and it has been accordingly held that a statute passed after the commencement of an action, changing the mode of pro cedure, has no application to such action ; 1C0 that an act regu latins the matter of review and new trials did not take away the right of review in pending act ions, or where judg- ment had been rendered, but the time limited by the old law for review had not expired ; 107 that an act regulating executions did not apply to judgments rendered before its passage; 168 and that an act directing that in all indictments for murder, the degree of the crime charged shall be alleged was not to be construed so as to apply to pending indict- ments to which the defendant had not yet pleaded. 169 ] § 290. Limits of this Rule. — But the new procedure would be presumedly inapplicable, where its application would prejudice rights established under the old (a) ; or 169 Koch's Est., 5 Rawle (Pa.) Foster and Bingham, JJ., dissent- 338. ing. "•Rosenthal v. "Wehr, 58 Wis. G21. 168 Stiles v. Murphy, 4 Ohio, 316. 161 Gill v. Wells, .V.) Md. 492. ,69 Stale v. Smith, 38 Conn. 397. »62 Walston v. Com'th, 10 B. And see Mabry v. Baxter, 11 Mon. (Ky.) 15. I Irish. (Tenn.) 08:2, where it was 163 State v. Manning, 14 Tex. 402. held that an act giving joint 164 People v. Mortimer, 40 Cal. defendants the right to sever, and 114. our to have a change of venue to 165 Trist v. Cabenas, 18 Abb. Pr. the county of bis residence, could N. Y.) l!:;. not constitutionally apply to pend- Merwin v. Ballard, 00 X. C. ing causes, as being judicial and 398. • changing the remedy. See ante, $ 161 Rowel! v. R. R. Co., 59 N. 1 1. 282. 35, Doe, C. J., doubting, and (a) Exp. Phoenix Bessemer Co., 15 L. J. Ch. 11. § 290] RETROACTION. 393 would involve a breach of faith between the parties. For this reason, those provisions of the Common Law Proced- ure Act of 1854, s. 32, which permitted error to be brought on a judgment upon a special case, and gave an appeal upon a point reserved at the trial, were held not to apply where the special case was agreed to, and the point was reserved before the Act came into operation (a). Where a special demurrer stood for argument before the passing of the first Common Law Procedure Act, it was held that the judgment was not to be affected by that Act, which abolished special demurrers, but must be governed by the earlier law (b). The judgment was, in strictness, due before the Act, and the delay of the Court ought not to affect it. [Where, however, a right has been only partially ac- quired under a statute, and remains inchoate at the time of enactment of another, changing the method of its prosecu- tion and perfection, the procedure prescribed for that pur- pose by the latter must be pursued, or the right remain un- perfected. 170 Thus, where a defendant's real estate was sold on execution in August, 1829, a statute then giving a credit- or, who had a judgment which was a lien on the land, fif- teen months to redeem, upon payment of the amount of the bid, and ten per cent, interest thereon ; and before Novem- ber, 1830, when said period would, under the law in force at the time of the sale, have expired, a body of revised stat- utes went into effect, superseding the former statute upon this subject, and requiring, for redemption by a creditor, the payment of the bid with seven per cent, interest, but also requiring him to produce to the sheriff a certified copy of the docket of his judgment ; it was held that, whilst the purchaser remained entitled to receive the amount of his bid with ten per cent, interest, his right thereto having vested in him before the revised statutes went into effect, (a) Hughes v. Lumley, 24 L. J. that " demurrers for formal defects Q. B. 29; 4E &B. 274. Vausittart are abolished, and those only for v. Taylor, 4 E. & B. 910, 24 L. J. substantial defects are allowed," Q. B. 198. See sup. note 153. was held to abolish special, but to (o) Pinhoru v. Sonster, 21 L. J. preserve general demurrers : Hobbs Ex. 336, 8 Ex. 138. See also R. v. v. R. R. Co., 9 Heisk. ( renu.) 873. Crowan, 14 Q. B. 221; Hobson v. m People v. Livingstone, Neale, 8 Ex. 131, 22 L. J. 25, 179. Wend. (N. Y.) 526. See ante. [And see ante, § 282. A provision, §281. 39-A RETROACTION. [§291 the omission of the creditor to produce the certificate re- quired by the latter was fatal to his claim to succeed to the rights of the purchaser. 171 § 291. Curative and Declaratory Laws.— [However earnestly the policy of all retrospective legislation may, upon princi- ple, be deprecated, it is undoubtedly true, that, " our legisla- tures are constantly passing laws of a retrospective character. Such are the laws declaring certain acts of persons irregularly elected, valid; correcting assessment rolls irregularly made; and many others of like character. These laws have never been questioned ; and the denial of the power would, in a new country, where forms are often overlooked, lead to very serious consequences." 1 " It cannot, of course, be the pur- pose of this work, to examine into the question of the constitu- tionality of such acts in general, or under particular constitu- tional provisions affecting special legislation, and the like ; nor to inquire whether the plea of infancy which has been put for- ward in so many instances to justify departures from sound principles of economics as well as of jurisprudence, can, at the present day, be entitled to respect, at least in those states which may be supposed to have arrived at a stage of civilized development subjecting their institutions, legislation and policy to rules and criticisms beyond the immunities of the pinafore. It is a proposition too well settled by authority to admit of dispute, or call for extended discussion, that cur- ative acts, especially upon matters of public concern, are to be allowed the retroactive effect they are clearly intended to have, even though vested rights and decisions of courts be set aside by them, so long as they do not undertake to infuse life into proceedings utterly void for want of jurisdiction, 17 * and do not contravene the constitutional provisions against laws impairing the obligation of contracts and ex post facto laws, or any other provision of the particular constitution to which the Legislature passing them may be subject. 174 The 111 People v. Livingstone, supra. * 381-2 ; Richards v. Rote, 68 Pa. » 9 Sedgw., p. 134, citing Syra- St. 248 ; Haldennan v. Young, 107 cuse City B'k v. Davis, 16 Barb. Id. 324, 326. But see Grim v. Sch. (N. Y.) 188; 1 Kent, Comm., Distr., 57 Pa. St. 433. *4,-,5. m See Otoa Co. v. Baldwin, 111 See Cooley, Const. Lim., U. S. 1 ; Underwood v. Lilly, 10 § 292j RETROACTION. 395 purpose of these sections is merely to point out the effect, upon the construction of such, and acts declaratory of former statutes or rules of law, of the presumption against an intention, to legislate retrospectively, and possibly of a constitutional pro- hibition against retrospective operation in the particular class of cases to which the act is to be applied, coupled with the necessity of giving, if practicable, a lawful and reasonable ope- ration to the expression of the legislative will. § 292. [If possible, such legislation will be regarded as intended only to lay down a rule for future cases. 175 Thus, a resolution of the Legislature validating the acts of certain officers performed before institution of a suit pending at the adoption of the resolution, was held not to be available in it unless a purpose which would make it so was expressed in the same. 179 Statutes declaring the act of a notary public, after expiration of his office, valid, 177 and that tax sales shall not be set aside on account of certain defects in the notice 178 were alike held applicable to future cases only. An act declaring that a certain notice required by another act to a city of a defect " shall not be deemed invalid " because of " any inaccuracy [not intended to mislead] in stating the time, place, or cause of the injury," was held inapplicable to a notice given before, though controlling in the case of notices given after, the enactment. 179 So, it was held that a legislative declaration that the provisions of an earlier act "authorizing a married woman to carry on any trade or business on her sole and separate account, shall be so con- strued as not to allow her to enter into co-partnership in business with any person," in legal effect declared, that, thereafter, no married woman should have that right or power. 180 So, an act declaring that a previous act should not Serg. & R. (Pa.) 97; Com'th v. S.. etc., Agency. 74 Mo. 457. Marshall, 69 Pa. St. 328; Lane v. 116 Linn v. Scott, 3 Tex. 67. Nelson, 79 Id. 407; Spinning v. m Bernier v. Becker, 37 Ohio St. Build'ir, etc., Ass'u, 26 Ohio St. 72. 483; King v. Course, 25 Ind. 202; I7S Citizens ' Gas Light Co. v. Sedgwick, pp. 141-144, and note State, 44 N. J. L. 648. Curative UtaHiies. See also ante, m Shallow v. Salem, 136 Mass. § 284, note 123. 136. And see Forster v. Forster, 1,5 See Journeay v. Gihson, 56 12!) Id. 559. Pa. St. 57, 61. Lambertson v. m Todd v. Clapp, 118 Mass.. Hogan, 2 Id. 22 ; McNichol v. U. 495. 396 ' RETROACTION. [§ 293 be construed as increasing the emoluments of certain officers "at the date of its passage." 18 ' A.nd an act regulating- the construction of certain doubtful expressions in wills, was held not to aid the construction of one taking effect before the enactment. 1811 And this rule denying such statutes a retro- spective, and restricting them to a prospective, operation is especially^ it is said always, 1 " 3 to be observed, where the declaratory act undertakes to put a construction upon another act which has already received a different judicial construc- tion. 184 Hence, an act legalizing a tax roll, and curing its defects, was construed as not affecting an existing judgment for trespass against officers for seizing and selling property to pay a tax f hereunder ; 1S0 nor an act legalizing an assessment, assessment roll and delinquent list, a judgment declaring the levy invalid. 188 And an act authorizing a corporation to do a thing it had already done, and validating the same, was held prospective only, and not affecting the rights of a plaintiff in litigation at the passage of the act. 187 § 293. [But, where such a construction is impossible, where the " language is plainly retrospective," 188 whilst it must be given the effect it clearly is intended to have, it is not to be extended beyond the plain intent of the Legislature. 18 " Thus, an act undertaking to validate a void assessment on a city lot for a street improvement was held, at all events, not 181 Bassett v. U. S. 2 Ct. of CI. where, on March 4, 1865, a final 448. And sec Les Boisy. Brained, judgment bad been obtained 4 How. 449, for similar construe- en joining county officers from issu- tion of an act validating certain ing warrants to pay an unauthor- titles. ized appropriation made by them ; James v. Rowland, 52 Md. an act legalizing the appropriation 402. See ante, § 274. But com- having been passed on March 3, pare Adams v. Chaplin, 1 Hill, Ch. 1865, to take effeel from and after (S. C.)265, where an act declaring its passage and publication in cer- that no words of inheritance shail tain newspapers, which publication be necessary to convey a fee by was male on March 4. 1865, devise, operated retrospectively ; it was held that the legalizing stat- and ante, < 2*4. ute wenl beyond the judgment, "a Lambertson v. Hogan, 2 Pa. validated the appropriation ab St. 'j'j. initio, and rendered the judgment 18i See Ibid. ; Kupfert v. Build'g erroneous. Comp. Eteis v. Graff, Ass'n, 3fj Pa. St. 465 ; Lincoln 15. 51 Cal. 86, post, § 293. & S. Ass'n v. Graham, ? Neb. 173. l81 Cunningham's App., 108 Pa. Ho er v. White, 29 Mich. 59. St. 546. 188 People v. Moore, 1 Idaho N. Journeay v. Gibson, 56 Pa. S. 662. Bui see ante, g 284, note, St. 57, 61. and King v. Course, 25 Ind. 202, 189 Ibid., at p. 60. § 294] RETROACTION. 397 to validate the same, by relation, as of the date when it was made, but only at the date of the passage of the act. 19 ' Yet. in so far as such statutes are remedial, they are to be con- strued as remedial statutes are; 191 so that an act which vali- dated acknowledgments of deeds made before officers of other states, was held to embrace such an acknowledgment of a mortgage.™ § 294. Amendments.— [It was declared in England that an act of Parliament made to correct an error of omission committed in a former statute of the same session, relates back to the time when the first act was passed, and the two must be taken together as though they were one and the same act, the first being read as containing in itself, in words, the amendment supplied by the last ; so that goods exported before the second law passed, but only shipped on hoard before the first, of which the second was an amend- ment, was enacted, where liable to the duties imposed upon the exportation of goods. 193 This result would seem to How logically from the theory formerly accepted that every statute commenced from the beginning of the session at which it was enacted, 194 and there is, therefore, nothing in it which would seem to give amendments, as such, a retroactive operation. And such is certainly not the proper understanding. 196 No doubt, a statute which is amended is thereafter, and as to all acts subsequently done, to be con- strued as if the amendments had always been there, 196 and the amendment itself so thoroughly becomes a part of the original statute, that it must be construed in view of the original statute as it stands after the amendments are - 19Q Reis v. Graff, 51 Cal. 86. Dak. 308. And see Ludington v. Comp. King v. Course, 25 Ind. U. S., 15 Ct. of CI. 453, where the 202, ante. § 292, note. act of 1875, to correct errors and 191 Journeay v. Gibson, ubi supply omissions in the Rev. Stat., SU p ra . amending the same by adding cer- 19 - Ibid. tain provisions was held construa- 19J Atty.-Genl. v. Pougett,2 Price, ble, not as a new enactment, but as 381, in Potter's Dwarris, p. 172. if the Rev. Statutes had been origi- 194 g ee post, § 497. iially adopted with the alterations 195 See Bish'-, Wr. L., § 152a. thus made incorporated in them in 196 1 1 nl brook v. Nichol, 36 111. their proper places, and that they 161; Turney v. Wilton, Id. 385; were all subject to the provisions Kamerick v. Castlemau, 21 Mo. of §§5595 and 5601 of the Rev. App. 587 ; People v. Sweetser, 1 Stat. 398 RETRO ACTION. [§ 294 introduced, and the matters superseded by the amendments eliminated." 1 Hcik-c, where certain amendments to an act \e justices of the peace concurrent -jurisdiction with the common pleas " under the restrictions and limitations herein provided," this was held to refer to the restrictions and limitations provided in the original act as it stood after all the amendments made thereto were introduced into the same, in their proper places. 108 But even where the amendment merges portions of the original act in the new provisions, 299 so that, from the time of the amendment, the whole force of the enactment as to transactions subsequent to it rests upon it, the old act retaining no vitality distinct from the new one, it may yet be referred to as controlling past trans- actions ; ao ° and even an amendment of an act " so as to read" in a prescribed way has no retroactive force, but is to be understood as enacted when the amendment takes effect. 301 So, too, an amendment of a former law, the amendment declaring valid certain acknowledgments or probates of deeds, defective under the original act, was held not to be retroactive, so as to validate an acknowledgment, etc., defec- tively made under the latter before the passage of the amendment. 202 191 See McKibben v. Lester, q the provision amended : see ante, Ohio St. 627; People v. Sweetser, § 190 ; and that, in this respect it supra. was immaterial whether the Legis- [bid. And see, for similar lature incorporated the old law constructions, ante, § 196. and the amendment into one sec- 199 See ante, § 195-196. tion, or in terms declared the pro- 200 People v. Superv'rs, Mont- vision added an amendment or gomery, 67 N. Y. 109; Moore v. addition, it was held, that, in this Mausert, 49 Id. d'.'-'i ; Goodno v. particular case, the amendment, Oshkosh, 31Wis. 127. upon all tin; grounds of construc- 201 Ely v. Holton, 15 N. Y. 595 ; tion, was to be deemed as evincing Bay v. Gage, 36 Barb. (N. Y.) 417; a design to operate retroactively. Kelsey v. Kendall, 48 Vt. 24 ; Kam- *°* McEwen v. Bulklcy's Lessee, crick v. Castleman, supra. See Bur- 24 How. 242. The court held the well v. Tullis, 12 Minn. 572, where, effect of the amendment to be besides being decided that an merely to provide an additional amendment "so as to read" was mode of probate; "nor does the not a repeal and re-enactment of act go any further :" Ibid., p. 244. £295] MODIFICATION OF LANGUAGE. 399 CHAPTER XL Exceptional Construction to Effectuate Legislative Intent. § 295. Effect to be given to True Intent of Act. Modification of Language. § 297. Acts done "under," " by virtue of," "in pursuance of," etc., statute. § 298. Interpolation of Words, etc. § 301. Elimination of Words, etc. § 303. "Or" read "and." § 304. "And "read "or." § 305. Limits of Intercbangeableness of " and" and "or." § 306. Permissive Words -when, and when not, Rend as Imperative. § 315. Effect of Express Reference to Discretion. § 317. Correction of Omissions and Erroneous Insertions. § 318. Elliptical Sentences. Transposition of Words, etc. § 319. Clerical Errors. § 320. Equitable, in the sense of Liberal, Construction. § 322. Equitable Construction in its Strict Sense. § 323. Reason for such Construction in Ancient Statutes. § 324. Equitable Restriction of Modern Statutes. § 325. Principle of Equitable Construction Discredited. § 326. When Established Equitable Construction of One Statute Applied to Another. § 327. Adoption of Principle from Analogy to Statute § 328. Acts Contrary to Natural Equity, etc. § 295. Effect to be Given to True Intent of Act. Modification of Language.— Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, pre- sumabty not intended, a construction may be put upon it, which modifies the meaning of the words, and even the struc- ture of the sentence (a). This is done, sometimes, by giving (a) See per Alderson, B. , in Atty- Wright v. Williams, 1 M. & W. Genl. v. Lockwood, 9 M. & W. 99 ; and Hollingworth v. Palmer. 398, and Miller v. Salomons, 7 Ex. 4 Ex. 2G7; per James, L. J., in Exp. 475. 21 L. J. 188 ; per Parke, B., Rashleigh, 2 App. 13 ; Grot, de B. in Becke v. Smith, 2 M. & W. 195 ; & P., b. 2, c. 16, 8. 12 (4). [But 400 MODIFICATION OF LANGCAi.I . [§295 an unusual meaning to particular words : sometimes by alter- ingtheir collocation ; or by rejecting them altogether; or by interpolating other words; under the influence, no doubt, of an irresistible conviction, that the Legislature could not possi- bly have intended what its words signify, and that the modifications thus made are mere corrections of careless language, and really give the true intention. [The ascertain- ment of the latter is the cardinal rule or rather the end and object, of all construction ;' and where the real design of the Legislature in ordaining a statute, although it be not precisely expressed, 3 is yet plainly perceivable, or ascertained with reasonable certainty, the language of the statute must be given such a construction as will carry that design into elt'ect. 3 even though, in BO doing, the exact letter of the law he sacriiiced, 4 or though the construction he, indeed, contrary to the letter. 6 And this rule hold- good even in the con- in all these matters, it is necessary to remember, that, in the interpre- tation of a statute, the court must look to its language: Stale v. Duggan (R. I.), 3 New Engl. Rep. 137 ; thai the words of a law are generally to have a controlling effect upon its construction : Siemens v. Sellers, 123 U. S. 276, 285 (although "the interpretation of those words is often to be sought from the surrounding circum- Blances and preceding history :" Ibid., per Bradley, J., construing the phrase " 17 years from the dale of issue," in the act of Congress, relating to patents, of 2 March, 1861); and thai, in giving construc- tion to an act, in all ordinary cases, "courts are confined to the lan- guage and terms employed by the Legislature, and are not at liberty to interpolate phrases and provis- ions, although otherwise the pur- pose and intention of the law- making power may seem indefi- nite, obscure and incomplete :" Furey v. Gravesend, 104 JST. Y. 405 ; 6 Centr. Rep. 501, 503.] 1 People v. Vv r eston, 3 Neb. 312; Hunt v. R. R. Co., (Ind.) 11 West, Rep. 107. - Slate v. King, -14 Mo. 283. 3 Brown v. Barry, 3 Dal. 365 ; Minor v. Mich. Bank, 1 Pet. 46 ; Binney v. Canal Co., 8 Ed. 201. '» tug out of tne territories (a). The same Statute, which, after limiting the time for suing, gave a further period to persons abroad "after they returned," was construed as giving that extended time to the executor of a person who never re- turned, but died abroad (J). An Act which made it penal •• to be in possession of game alter the last day" allowed for shooting, would, if construed literally, include cases where the possession had begun before the last day, and therefore lawfully ; and to avoid this injustice, it was construed as ap- plying only where the possession did not begin until after the close of the season ; that is, the words "to begin" were inter- polated before "to be in possession " (c). Where one section enacted that if the plaintiff recovered a sum " not exceeding" live pounds he should have no costs, and another, that if he recovered' 1 less than "five pounds, and the Judge certified, he should have his costs; the literal meaning of the last clause leaving it inoperative where the sum recovered was exactly live pounds, it was held, to avoid imputing so incongruous and improbable an intention to the Legislature, that the words " less than " should be read as equivalent to " not exceed- ing" (d). The Insolvent Act, which invalidated voluntary conveyances made by insolvents " within three months be- fore the commencement of the imprisonment," which, literally, would exclude the time of imprisonment, was construed as if the words had been "within a period commencing three months before the imprisonment." The literal construction, in leaving uninvalidated voluntary conveyances made after the imprisonment had begun, would have led to an incongruity which the Legislature could not be supposed to have intended (e). The Bankruptcy Act of 1869, providing that all the property acquired by the bank- rupt "during the continuance" of the bankruptcy should be divisible among his creditors, and providing also that he (a) Ruckmaboye v. Lullooboy, 8 (c) 2 <;<•<>• :*, c. 10, :;?) Geo. 3, c. Moo. 4. [See ante, § 78, as to the '34 ; Simpson v. I'nwin. 3 15. & Ad. construction of this phrase by tin- 134. various courts in the United (d) Garby v. Harris, 7 Ex.591, Stati 21 L. J. 160. {>>) Townsend v. Deacon, :; Ex. (e) Becke v. Smith, 2 M. & W. :■>: ■ and see Forbes v. Smith, It 198. Ex. 161. § SM] MODIFICATION OF LANGUAGE. £03 might obtain his discharge not only at the close, but during the continuance of his bankruptcy, it was held that the earlier passage must be read in substance as meaning that the future property which was to be divisible, was that acquired either during the continuance of the bankruptcy or before the earlier discharge of the bankrupt. This construction was deemed necessary to avoid leaving the bankrupt incapable of acquiring property after he had given up everything to his creditors, simply because the property had not been realized, and consequently the bankruptcy not closed (a). § 297. Acts done "under," " by virtue of," "in pursuance of," etc., statutes. — It is obvious that the provisions in numerous statutes which limit the time and regulate the procedure for legal proceedings for acts done " under" or " by virtue," or "in pursuance" of their authority, do not mean what the words, in their plain and unequivocal sense, convey ; since an act done in accordance with law is not actionable, and therefore needs no special statutory protection (b). Such provisions are obviously intended to protect, under certain circumstances, acts which are not legal or justifi- able (c); and the meaning given to them by a great number of decisions seems, in the result, to be that they give pro- tection in all cases where the defendant did, or neglected (d) what is complained of, under color of the statute ; that is, being within the general purview of it, and with the honest intention of acting as it authorized, though he might be ignorant of the existence of the Act ; and actually, whether reasonably or not, believing in the existence of such facts or state of things as would, if really existing, have justified his conduct (e). [Thus, where a tax-collector levied a tax on a (a) 33 & 33 Vict. c. 71, ss. 15 & (e) See, among many other 48 ; Ebbs v. Boulnois, L. R. 10 authorities, Greeuway v. Hard, 4 Ch. 479. T. R. 553; Parton v. Williams, 3 (b) Per Cur. in Hughes v. Buck- B. & A. 330 ; Roberts v. Orchard, land, 15 M. & W. 346. 2 H. & C. 769, 33 L. J. 65; Hughes (c) See ex. gr. Warne v. Varley, v. Buckland, 15 M. & W. 346 ; 6 T. R. 443. Bootb v. Clive, 10 C. B. 827, 2 L. (d) Wilson v. Halifax, L. R. 3 M. & P. 283 ; Uarpue v. London Ex. 114, Newtnu v. Ellis, 5 E. & and Brighton R. Co., 5 Q. B. 747 ; B. 115, 24 L. J. 337; ["anything Tarrant v. Baker, 14 C. B. 199; done in pursuance of an act" thus Burling v. Harley, 3 II. & N. 271 ; including an omission : see ante, Hopkins v. Crowe, 4 A. & E. ?74 ; §104.] Kine v. Evershed, 10 Q. B. 143; 4:04 [INTERPOLATION. [§ 29T theatre, which had been erroneously assessed as a dwelling house, it was held, that, as the assessors were clothed with power to assess property according to the class, to which, in their judgment, it belonged, and consequently had juris- diction of the subject-matter, the error did not withdraw the protection of the law from those actiug as col lectors under their authority." So it was held, in Pennsylvania, that a justice of the peace, though he had acted illegally, as where he caused one who was traveling on Sunday to he arrested on his own view, yet, having general jurisdiction of the subject, and intending and assuming to act as a magistrate, was within the protection of the act entitling him to thirty day.-' notice of any action to he brought against a justice of the peace for anything done by him "in the execution of his office"" — a phrase which is said to mean " by virtue of his office." 13 ] If an Act authorizes the arrest of a person who entered the dwelling-house of another at night with intent to commit a felony (24 & 25 Vict. c. 96, s. 51), an arrest made in the honest and not unreasonable, but mistaken, belief that the person arrested had entered with that intent, would be protected. But the person making the arrest would not be protected if he had acted under a misconcep- tion, not of the facts, but of the law ; as if, for instance, his belief was that the person arrested had only attempted to enter; a different offence, for which the enactment in question docs not authorize arrest; or if, where the law justified an immediate apprehension, an arrest was made which was not immediate (a). [So, where a justice of the peace issued a warrant of arrest on a criminal accusation, without probable cause, supported by oath or affirmation, such power being expressly excepted from all the powers of Government by the bill of rights of Pennsylvania, he was held not protected by his office. 14 ] The reasonableness of Hermann v. Seneschal, 13 C. B. N. '-.Tones v. Hughes, 5 Scrg. & S. 392, 32 I,. .1. 43; Downing v. R. (Pa.) 302. Capel, I-. R. 2C. 1'. 461 ; Leete v. 13 Mitchell v. Cow-gill, 4 13inn. Hart, Id. :! C. 1'. 322 ; Chamber- (Pa.) 20. lain v. Kin-. Id. GC. P. -lit; (a) Griffith v. Taylor, 2 C. P. D. S lines v. Judge, Id. (J Q. 15. 724 ; 194 ; Morgan v. Palmer, 2 15 & C. Mason v. Ainl. :,1 I,. .1. Q. 1'.. 211; 72'.). Dennis v. Thwaites, 2 Ex. 1). 21. " Johnson v. Tompkins, 1 " Sedgw., al p 82, cit. Hender- Baldw. 002. son v Brown, 1 Cai. (N. Y.) 92 § 298] INTERPOLATION. 405 the belief is immaterial, if the belief be honest; though it is an important element in determining the question of honesty. 16 § 298. Interpolation of Words, etc.— All Act (26 & 27 Vict. c. 29) which enacted that no witness before an election inquiry should be excused from answering self-criminating questions relating to corrupt practices at the election under inquiry, and entitled him, when he answered every question relating to those matters, to a certificate of indemnity declar- ing that he had answered all such criminating questions, was held to apply only where the witness answered " truly in the opinion of the commissioners ; " for it was not to be sup- posed that any answer, however false or contemptuous, was equally intended (a). [So, where a statute required defen- dants in suits upon certain causes of action to file affidavits of defence setting forth the " nature and character thereof," and. in default of such affidavit, to be filed within a certain period, authorized the plaintiff to move for, and the court to enter, judgment against the defendant, it was held that the defence alleged must be set forth with such particular- ity as to satisfy the court that it was an available, practicable defence in the case, under the rules of law and evidence governing; the same; 16 that the defendant must state that he believes, or show circumstances by his affidavit inducing the court to believe, that he will be able to prove the matters alleged by him upon the trial of the cause ; 17 and that the defence thus specified must be such as would, if true, be legally sufficient to bar the plaintiff's demand in the suit in which it is asserted. 19 It would not be supposed that the Legis- lature intended the assertion of any mere futile, impracticable, or irrelevant defence to answer the purpose of delaying the 15 See, for an extended discus- made " true" discovery, sion of the subject of Ike protec- 1B Heatou v. Horner, 35 Leg. Int. tion given by statutes to those act- (Pa.) 14U; 8 Pitts. L. J. N. S. 118: in g under their authority : Wilb., West Harrisburg, etc., Ass'n v. Stat. L., pp. 87-98. See also post, Morganthal, 2 Pears. (Pa.) 343; § 423. Leonard v. Fuller, 1 Penny. (Pa.) "" (a) R. v. Hulme. L. R. 5 Q. B. 387. 377. It is observable that this " Black v. Halstead, 39 Pa. St. interpolation was made in the Act. 64. notwithstanding that it repealed an I8 West v. Simmons, 2 Whart. earlier enactment which had pro- (Pa.) 201 ; Rising v. Patterson, 5 tected the witness only when he Id. 31(5. 4 lie regarded in law as second Monday succeeding the one day; so that a sale on the terra at which judgmenl was second .Monday succeeding the obtained, a sale mi the second adjournment of the term would .Monday succeeding the first day have been equally a compliance die term was held a compliance with the statute : Ibid. i the requirement : Bestor v (o) R v. Dowling,8 E.& B. 605; Powell, 7111. 119. This, however, Exp. Greenwood, 27 1.. .1 neit an interpolul ion of the S. O. § 301] ELIMINATION. 409 corporate right or privilege to mine, or to purchase and sell coal." It was held that the object of the law- was to " reach every corporation which purchases and sells coal, which mines coal on its own land or land it has leased, or which dauses coal to be mined under a lease, contract, grant or min- ing privilege, to unincorporated persons on property that it owns, or has a coal privilege or interest therein." Accord- ingly, it was held to embrace a corporation which owned extensive coal lands and leased them to others to be worked, the corporation itself, by its charter, being expressly pro- hibited from mining. 26 ] §301. Elimination of Words, etc. -Again, notwithstanding the general rule that full effect must be given to every word, if no sensible meaning can be given to a word or phrase, or if it would defeat the real object of the enact- ment, it may, or rather it should, be eliminated (a). The Carrier's Act, 1 Will. 4, c. 68, which enacts that a carrier shall not be responsible for the loss of articles delivered for carriage, unless the sender declares their value and nature, at the time of delivery, " at the office " of the carrier, was held to protect the carrier, where the parcel had been de- livered to his servant elsewhere than at the office, and no •declaration had been made either there or elsewhere; the fair meaning of the statute, and the paramount object of the Legislature being that the carrier should in every case be apprised of the nature and value of the article entrusted to him, whether it was delivered at the office or elsewhere (b). An Act (25 & 26 Vict. c. 114) which authorized con- stables to search any person whom they suspected of coming from any land in unlawful pursuit of game, and, if any game was found upon him, to detain and summon him, was held to authorize a constable to summon a man whom he saw on a 'ootway, with a gun in his hand, picking up a rabbit thrown from an adjoining enclosure, just after the report of a gun, but whom he did not search. There was nothing in the general object of the Act to lead to the supposition that 26 Big Black Creek, etc., Co. v. D. 701; though in Unit case the Com'lh, 94 Pa. St. 450. 455. elimination was not necessary, 2 (a) Per Lord Abinger in Lv). § 302. [Similarly, words have been rejected as surplusage in the following instances. Where a statute provided for an indictment "on conviction" of bribery, the words "on con- viction," which, if retained, would have made the act nuga- tory, were rejected upon the construction of the act ;" so the word "such," where it was apparent that it had no reference to anything preceding it ; 38 so, in an act providing a punish- ment " if any guardian of any white female under the age of eighteen years, or of any other person to whose care or pro- tection any such female shall have been confided, shall defile her," etc., the word "of before "any other person;" 29 so,, in a statute intended to confer jurisdiction, the word "not," which, if retained, would have rendered the act meaning- less. 30 So, a clause purporting to define the meaning of "obligation or other security of the United States" as used in other parts of the act was applied to the terms "obliga- tion" and "security" actually used, those portions of the phrase not appearing in any other part of the statute being, in effect, rejected as surplusage. 31 And where an act gave, and regulated the exercise of, the right of appeal from the judgment of a justice of the peace, and then provided, that, " upon such appeal from the decision, determination or order of two justices," etc., it was held that the word " two," in (a) Hall v. Knox, 4 B. & S. 515, -i1 U. S. v. Stem, 5 Blatchf. 512. 33 L. J. M. C 1. See also sup. £$ 28 State v. Beasley, 5 Mo. 01. 245, 264. But in Clarke v. Crow- - 9 Slate v. Acuff, 6 Mo. 54. din-, L. R. 4 C. P. 638, and Turner 80 Chapman v. State, 10 Tex. v. Morgan, L. R. 10 C. P. 587, the A.pp. 70 ante, § 265. statute was construed strictly and il U. S. v. Rossvalley, 3 Ben. literally. 157. (//) R. v. Everdon, 9 East, 101. ' § 302] ELIMINATION. 411 view of the explicit reference to the appeal before given, which was distinctly an appeal from the judgment of a single justice, must have been inserted by mistake and was, there- fore, rejected. 33 Where an amendatory act referred to the act intended to be amended by its date, title and subject- matter, a mistake in the first two was deemed immaterial and the erroneous reference thereto simply rejected, the reference to the subject-matter being sufficiently precise to identify the amended act. 33 So, where the title of an act referred to, and its enacting clause extended the provisions of, " an act passed in 1839, ch. 205," etc., it was held to be a sufficient identifi- cation of the act of 1838, ch. 205, which was passed in March, 1839, especially as there was no act passed upon that subject at the session of 1839. 84 And so was a reference, in an act authorizing judgments for want of an affidavit of defence in suits, inter alia, upon " liens of mechanics and material men, under the act of 17 March, 1836," there having been an act upon that subject approved 17 March, 1806, and another, which took its place, approved 16 June, 1836, and the refer- ence clearly being to the latter act. 35 So, again, an amend- ment, in terms, to § 293 of an earlier act, was construed as referring to § 296 of the same, the subject-matter of the amendment pointing out the latter section as the only one to which it could properly refer, and the alternative for such a construction being the nullification of the amendment. 3 ' Upon the same principle, in a reference by a statute to the vote of a town respecting division, etc., a wrong date, given as that of the election, will be rejected as surplusage, the reference to the vote, there having been only one, being otherwise sufficiently descriptive. 37 And where a statute, 84 McCahan v. Hirst, 7 Watts take, and that a different act was (Pa.) 175. Comfort v. Leland, 5 intended to be referred to. effect Whart. (Pa.) 81 ; Gue v. Kline, 13 will be given to this intention : Pa. St. GO. 64. School Dir's Distr. No. 5 v. Sch. 33 Madison, etc.. Plank Boad Dir's Distr. No. 10, 73 III. 249; Co. v. Reynolds, 3 Wis. 287. Poock v. Lafayette BIdg. Ass'n, 17 34 Pue v. Hetzell, 1G Md. 539. Ind. 357 ; People v. Hill, 3 Utah, 35 Bradbury v. Wagenburst, 54 334. See also Blake v. Brackett, Pa. St. 180, 183. 47 Me. 28 ; Gibson v. Belcher, 1 3S People v. King, 28 Cal. 2G5. Bush (Ky.) 145. And sec, to the effect, that, where 37 Shrewsbury v. Boylston, 1 it is apparent from an act that a Pick. (Mass.) 105. reference in it to another is a mis- 412 "or"— (> and." [§303 intended to validate a certain city ordinance, passed April 12, 1866, which liad formerly been declared vx>id by the Supreme Court of the state, in the preamble, referred to the linance as adopted on July 13, 18GG, but also referred to its provisions and to the fact, the names, the term and the number of the case in which the decision of the court thereon had been rendered, and the purport and effect on the ordinance thereof, it was held that the subject-matter of the act was sufficiently identified plainly to correct the error in the date, i. e., to warrant its rejection as surplusage. 88 ] § 303. " Or," read " and."— To carry out the intention of the Legislature, it is occasionally found necessary to read the conjunctions "or" and "and," one for the other. [Indeed, those words are said to be convertible into each other, as the sense of the enactment and the necessity of harmonizing its provisions may require. 89 ] The 1 Jac. 1. c. 15, which made it an act of bankruptcy for a trader to leave his dwelling- house " to the intent, or whereby his creditors might be defeated or delayed," if construed literally, would have exposed to bankruptcy every trader who left his home even for an hour, if a creditor called during his absence for pay- ment. This absurd consequence was avoided, and the real in- tention of the Legislature, beyond reasonable doubt, effected, by reading " or " as " and " ; so that an absence from home was an act of bankruptcy only when coupled with a design of delaying or defeating creditors {a). [So, in Mass. Gen. St., ch. 1G7, § 6, in the words "in a fictitious or pretended lottery," the word " or " is read " and," the whole phrase thus being construed as describing a single offence. 40 The O OCT same construction was put upon the same word in a statute defining burglary as to "break or enter;"' 11 and in a statute 38 Com'th v. Marshall, 69 Pa. St. moved, and "and" substituted 328, 332. therefor. 8» State v. Brandt. 41 Iowa, 593 ; (a) Fowler v. Padget, 7 T. II. State v. Myers, 10 Id. 448 ; People 509. See also 11. v. Mortlake, G v. Swectser. 1 Dak. 308; Bish., East 37. Wr. L., §243, Bui see Douglass w Com'th v. Harris, 13 Allen v. Eyre, GHlp. 117. where it is said (Mass.) 534. that "or" never means "and," *• Holland v. Com'th, 82 Pa. St. but that, when clearly necessary, 306,320. Comp. Blemer v. People, in order to give effect to a clause 76 111. 20."); Vance v. Grey. 9 in a will or a legislative provision, J Jush (Ivy.) 056. "or" lias been changed or re- § 304] "or"— "and." 413 punishing persons who shall place obstructions in a water- course, whereby the "flow of water is lessened, or navigation impeded." 43 And so, too, it was held, that, in an act requiring a certificate of consent of parent or parents, guardian, etc.? to the marriage of minors, if such parent, etc., live within the province or can be consulted with, "or" must be read " and," as it could not have been intended " to send the justice or other person on a voyage of discovery " to find the parent or guardian beyond the limits of the province." The same construction was placed upon the word "or" in the California Civil Code, § 978, between the various clauses referring respectively to the undertaking for costs on appeal, and an undertaking for the stay of proceed- ings, thus making the undertaking for costs essential in all cases. 44 The married woman's act of 1848, in Pennsylvania, contained a provision making a married woman liable upon her contracts for necessaries, providing, however, that judg- ment should not be rendered against her unless it should appear that the debt was " contracted by the wife, or incurred for articles necessary for the support of the family," etc. It is obvious and was held that "or' :i must be read "and." 46 In the construction of the act of Congress of 6 August, 1861, providing for the seizure and confiscation of property used in aid of the rebellion, and for its condemnation in the dis- trict or circuit courts of the United States having jurisdiction of the amount "or" in admiralty, it was held that "or" must be read "and." 46 ] §304. "And" read "or"— The converse change was made in a turnpike Act which imposed one toll on every carriage drawn by four horses, and another on every horse, laden or not laden, but not drawing ; and provided that not more than one toll should be demanded for repassing on the same day " with the same horses and carriages." It was held that the real intention of the Legislature required that this "and" 4i State v. Pool, 74 N. C. 402. 45 Murray v. Keycs. 35 Pa. St. 43 Bolliu v. iSliriner, 12 Pa. St. 384, 391. 205,206. 4G Union Ins. Co. v. U. S., 6 44 McConky v. Alameda Co. Wall. 759. See also post, 8 304, Super. Ct,, 5GCal. 83. Foster v. Com'Lh, 8 Watts' & S. (Pa.) 77. 414 "ok"— "and."' [§ 304 should be read as "or," and thai ;i carriage repassing with different horses was oot liable to a second toll. The toll was imposed on the carriage; and it was immaterial whether it was drawn by the same or different horses («). The Statute of Charitable Uses, which speaks of property to be employed for the maintenance of "sick and maimed soldiers," referred to soldiers who were either the one "or" the other, and not only to those who were both (J). | A provision in the fourth section of an act regulating the salt-, etc., of liquors, that any person violating " the first and second sections of this act " shall forfeit, etc., was held to under a person liable for the violation of either the first or the second section, the same being of such a character as to make an infringement of either, an independent offence. 47 So, in a statute which was supplementary to another, and prescribed a punishment by "fine and imprisonment," the word "and" was read " or," such being the reading of the original act, and there being no indication, beyond the change of the conjunction, of a design to inflict the cumulated punishment. 48 But possibly the most striking illustration of the convertibility of those words is afforded by the construc- tion put upon a Pennsylvania statute which declared that no publication outside of court respecting the conduct of the judges, officers of the court, jurors, witnesses and parties on a question pending before the court, should be a con- tempt punishable by attachment ; but that the party ag- grieved by such publication might proceed against the "author, printer and publisher," or either of them, by in- dictment; or he might bring an action at law and recover such damages as a jury might think fit to award. It was held that the word "and" should be read " or," so as to give an indictment against all the several persons designated, as was, indeed, intimated to be the intention, by the addi- tion "or either of them," and not to convey the idea, as in grammatical strictness, the language would, that "author, printer and publisher," (or, at least, "printer and pub- fa) Waterhouse v. Keen. 6 Dowl. 47 People v. Sweetser, 1 Dak. & R. 257, wrongly reported in the 308. marginal note in 4 B. & C. 200. 48 Com'th v. Griffin, 10."> Mass. Duke, Charit. Uses, 134. 185. See post, £§378, et acq. §305] " ob "—"and." 415 lisher,") were supposed to be one person ; and that the word " or" should be read "and " so as to give the party injured both the right to prosecute and a right of civil action for damages, and to preclude the idea that the Legislature in- tended to give the injured party merely the choice between a criminal and a civil proceeding. 49 ] § 305. Limits of Interchangeableness of " and " and " or "—This substitution of conjunctions, however, has been sometimes made without sufficient reason. It may be questioned, for instance, whether the judges who " were at the making '* of the Statute 2 Hen. 5, c. 3, which required that jurors to try an action when the debt " or " damages amounted to forty marks, should have land worth forty shillings, were justified in construing it "by equity," and converting the disjunctive "or" into "and" (a). The Court of Queen's Bench, on one occasion, held that the power given to justices by the Highway Act, 5 & G Will. 4, c. 50, to order the diversion of a highway, when it appeared " nearer or more commo- dious to the public," was limited to cases where the new road was both nearer and more commodious (b) ; but the same Court lately held that the power was exercisable when the new road was either the one or the other (c). [It has been said, that in a penal statute, " and " can never be construed " or." 6 ° It is sufficiently apparent from the illustrations already given, that both words are interchange- able, where the sense and objects of the enactment require the one to be substituted for the other, in penal statutes as well as in others, and as against the offender as well as in his favor. 61 But it need scarcely be repeated, that where the meaning of the act is plain, and there is nothing in it to call for the substitution, the court, in construing the act, is not at liberty to make it. 69 ] 49 Foster v. Com'th, 8 Watts & 50 U. S. v. Ten Cases of Shawls, S. (Pa.) 77, per Gibson, C. J. 2 Paine, 162. (a) Co. Litt, 272a. B1 See, also, to same effect. State (b) R. v. Shiles, 1 Q. B. 910. v. Myers, 10 Iowa, 448, where an (c) 11. v. Phillips, L. R., 1 Q. B. act punishing a person for counter - 648'; Wright v. Frant, 4 B. & S. felling: and having in his posses- 119, 32 L. J. M. C. 204. See siou, etc., was held to authorize a Harrington v. Ramsay. 8 Ex. 326, conviction for either; Bish., Wr. 22 L. J. 460 ; Oldficld v. Dodd, 8 L.,% 243. Ex. 578. w See ante, § 24. 4h'. PERMISSIVE WORDS. [§306 § 306. Permissive Words when, and when not Read, as Impera- tive.— Si :it ntes which authorize persons to do acts for the ben- efit of others, or, as it is sometimes said, for the public good or the advancement of justice, have often given rise to contro- versy when conferring the authority in terras simply enabling and not mandatory. In enacting that they " may " or, "shall, if they think fit," or "shall have power," or that "it shall be lawful" for them to do such acts, a statute appears to use the language of mere permission ; but it has been so often decided as to have become an axiom that in such cases, such expressions may have — to say the least — a compulsory force (a), and so would seem to be modified by judicial exposi- tion. On the other hand, in some cases, the authorized per- son is invested with a discretion, and then those expressions seem divested of that compulsory force. In an early case, where it was contended that the 13 & 14 Car. 2, c. 12, in enacting that the churchwardens and over- seers "shall have power and authority" to make a rate to reimburse parish constables certain expenses, left it optional with them to make it or not, the Court held that it was obligatory on them to make it, whenever disbursements had been made and not been paid. "May be done," it was observed, is always understood in such cases as "'must be done " (b). So, where a statute directed that churchwardens should deliver their accounts to justices, and enacted that the latter " shall and they are hereby authorized and empowered, if they shall so think lit," to examine the accounts, and disallow unfounded charges, it was held that the justices could not decline to enter upon the examina- tion (c), or be at liberty to allow charges not sanctioned by law {d). [An act declaring that the supervisors of a county are "authorized to adjust and audit" certain claims, to allow the value of work shown to have been done, and to cause the amount to be levied and collected, was held to import an {a) Per cur. in M. v. Tithe (c) R. v. Cambridge, 8 Dowl. 89. Commrs., 14 Q. B. 474 comp. It. v. Norfolk, i B. & Ad; (ft) It. v. Barlow, Carta. 29:!. 2 238. Sulk. 209 ; It. v. Derby, Skin. 370. (l PERMISSIVE WORDS. [§ 311 is placed with the depositary to inert the demands of right, and prevent the failure of justice. In all such cases, the Court observed, the intent of the Legislature, which is the test, is, not to devolve a mere discretion, hut to impose a positive and absolute duty (a). § 311. There is, therefore, abundant authority for the pro- position that such powers as arc hereunder consideration are invariably imperative; and that it is the duty of those to whom they arc entrusted to exercise them whenever the occasion contemplated by the Legislature arises. And having regard to this implied duty, the enabling or faculative terms in which the power may he couched, such as " it shall bo lawful," are to be regarded merely as the usual mode of giving a direction (b) ; as importing that it is not to be lawful to do otherwise than as directed (c). This is free from doubt in all those cases adverted to by Lord Bramwell, where the conditions are always the same; for in those cases the Legislature has in effect prescribed the specific facts out of which, in the language of the Common Pleas, the power arises ; and nothing is left to be determined or ascertained by the judicial discretion. Where the statute enacted that there should be power to levy a rate to pay the constables (d), or to issue a commission to administer a bank- rupt estate (e), or that a plaintiff might have his costs when he lived a certain distance from the defendant (f), it left no other question open for consideration, in the exercise of the power, than whether the money was due to the constables; whether there was a bankrupt trader, a legal debt, and a petitioning creditor; or whether the plaintiff's and defen- dant's abodes were at the prescribed distances. But the general rule applies equally to the other class of cases, where the power was discretionary ; for the discretion which was given was not that of exercising the power, or not, at pleasure, when the occasion did arise, but only of deter- (a) Supervisors v. l : . S., 4 Wal and Brecon R. Co., L. R., 9 Ch. lace, 4:}.-). Mil. 264. (6) Per Mellisli, L. J., R. v. (d) R. v. Barlow, sup. § 306. Norfolk, supra, 265, and per Jessel, (e) Blackwell's Case, sup. § 307. M. 1! , in Ex parte Jarman, 1 Ch. ( /') McDougal v. Patirson, sup. 1). i BIO. P, r James, L. J., in R Npnth ^311] PERMISSIVE WORDS. 425 mining whether the occasion had arisen in the particular case; and this question did not turn on the character of the terms, whether enabling or mandatory, in which the power was conferred, but on the nature of one or more of the facts on which the exercise was to depend, and which could be .determined only by the judicial discretion of the authorized person. If a statute empowered justices to adjudicate in certain cases, that is, to impose a certain penalty on persons whom they should find guilty of a certain offence, it is incontestable that they would have no option to decline the jurisdiction because the statute used only the word "may" instead of "shall" (a). Whether the language was fac- ultative only, or mandatory, it would be equally obligatory on them to hear and determine the complaint, to decide, one way or other, whether the accused was guilty, and to impose the penalty if he was; and equally within their judicial discretion which way to find as to the guilt. If any doubt were possible on this point, it would be removed by supposing the power conferred on the justices, and the finding whether the occasion for its exercise had arisen, delegated to a jury. The distinction between a discretion to exercise the power, and a discretion to determine only whether the occasion for it has arisen, is illustrated by the construction of the enact- ment that justices may, if they think fit, issue a summons upon an information laid before them. This power is so far discretionary, that they may grant or refuse the summons according as they judge, in the honest exercise of their dis- cretion (ft), that a prima facie credible case is shown for it ; but its exercise is imperative, in the sense that if their opinion is that such a case is shown, it is not competent to them to refuse to exercise it on extraneous grounds, such as that the prosecution is unadvisable (c). In the case of the annuity (d), the power, though couched in enabling terms only, would have been clearly imperative, if its exercise had depended only on the fact whether the whole consideration had been paid or not; but as the statute was construed to (a) R. v. Cumberland, 4 A. & E. (c) R. v. Adamson, 1 Q. B. D. 695. 201; R. v. Fawccit, 11 Cox, 305. (b) See sup. 8 147. (d) Barber v. Gamson, sup. § 308. 426 PEEMI88IVE WORDS. [§812 requirc the further fact that the retention or return of part of the consideration had been done with a corrupt or fraudulent motive, the power was so far discretionary, as the finding of this particular fact was intrusted to, and, indeed, could be determined only by the judicial discretion of the Court. It could hardly bo contended that if the Court had found that the motive was corrupt, it would still have been at liberty to abstain from cancelling the deed. So, as regards the power to order the examination of witnesses abroad (a), the power was discretionary, not because the language was merely enabling, but because the Legislature did not, intend that the power should be exercised where injustice would result ; and the decision of the Court that no such consequence was likely to ensue was a fact essential to the exercise of the power. So, in the Bishop of Oxford's case, though the power was widely discretionary as regards the question whether the occasion for its exercise arose, the Bishop could not have declined to hear the complaint (IS) ; nor, if his own judicial discretion, uninfluenced by considerations foreign to his duty, had decided that the occasion for it had arisen, could he, consistently with the intention of the Legislature, have refused to issue the commission (c). In one sense, indeed, a power is never obligatory when the discretion of its depositary is left to determine whether the occasion for its exercise has arisen ; for a Superior Court can only require him to exercise his discretion, but cannot direct how he shall exercise it. But this may be recognized without, admitting the principle, that, contrary to the rule laid down by the King's Bench and Common Pleas, it is ever discretionary to exercise a power given for a public purpose, in any case where the occasion for its exercise has arisen. § 312. The result seems to be, that, when a public power for the public benefit is conferred in enabling terms, a duty is impliedly imposed to exercise it whenever the occasion •\ (a) Castelli v. Groom, sup. § (c) Sec the concluding remarks OS. of Lord Justice Bramwell's judg- (b) Per Lord Blackburn, 5 App. ment in 4 Q. B. D. 655. 241. § 312] PERMISSIVE WORDS. 1'3T arises. These terms are then, in effect, invariably invested with a compulsory force ; and when a judicial discretion is found to be involved in the exercise of the power, this is not owing to the circumstance that the power is couched in the language of authorization only, and not of command, but because, according to the construction of the Act, it is intended by the Legislature that the power shall be exercised only when some fact is found to exist which can, from its nature, be ascertained only by the judicial discretion (a). [Since, therefore, a direction contained in a statute, though couched in merely permissive language, will not be construed as leaving compliance optional, where the good sense of the entire enactment requires its provisions to be deemed com- pulsory, 65 it is evident that the question is, in every case, one of intention. 67 And the intent is to be judged of by the purposes of the statute. Where those purposes are to provide for the doing of something for the sake of justice ; 68 some- thing which concerns the public rights or interests, and for the doing of which the public has a claim de jure ; 6D some- thing which concerns and subserves third parties, and for the doing of which they have a claim based upon existing rights ; 70 and, of course, where the thing to be done concerns and subserves rights both of the public and of individuals, 71 (a) It has been said that this § 307. principle does not apply to the 69 See Fowler v. Pirkins, 77 I1L construction of a by-law purport- 271 ; Schuyler Co. v. Mercer Co., ing to authorize its makers to do an 9 Id. 20; Supervisors v. U. S., 4 act for the public benefit. It was Wall. 435 ; Mason v. Fearson, 9 not to be supposed that they How. 248 ; Kennedy v. Sacramento, intended to bind themselves by 10 Sawyer, 29 ; Ralston v. Critten- their own by-law : R. v. Eye, 2 D. den, 3 McCrary, 332 ; .Newburgh, & R. 172 ; per Abbott, C. J., and etc., Turnp. Co. v. Miller, 5 Johns. Bayley, J.. 175. Ch. (N. Y.) 114; People v. Super- s' 6 See People v. Brooklyn, 22 visors, 11 Abb. Pr. (N. Y.) 114; Barb. (N. Y.) 404. Seiple v. Elizabeth, 25 N. J. L. 61 See Supervisors v. U. S., 4 407 ; Com'lh v. Marshall, 3 W. N. Wall. 435, 436; Ritchie v Franklin C. (Pa.) 182; Norwegian Str., 81 Pa. Co., 22 Id. 67; Thompson v. Car- St. 349; Cutler v. Howard, 9 Wis. roll, 22 How. 422 ; Minor v. Mech. 309 ; Blake v. R. R. Co., 39 N. H. B'k, 1 Pet. 46; Appeison v. Mem- 435; Nave v. Nave, 7 Ind. 122; phis, 2 Flip. 363 ; Kellogg v. Page, Bansemer v. Mace, 18 Id. 27 ; and 44 Vt. 356. cases in preceding note. 68 See People v. Supervisors, 51 10 See Ralston v. Crittenden. 3 N. Y. 401; Phelps v. Hawley, 52 McCrary, 332; 13 Fed. Rep. 508; Id. 23; Exp. Simonson, 9 Port, and cases iu preceding notes. (Ala.) 390; Exp. Banks, 28 Ala. 28; " See People v. Supervisors, It Johnson v. Tate, 95 N. C. 68, ante, Abb. Pr. (N. Y.) 114. 42S PERMISSIVE WORDS. [$ 313 — in all these cases, an intent is to be inferred, that, in using a permissive phrase-, the Legislature really meant to enjoin an imperative duty. But, where there is no design manifest to do something required by the purposes of justice ; where the public has no interest, or concern with the execution of the powers conferred; and where no private rights are affected by its failure, there is no room for an inference that the Legislature, in using permissive language, intended that it should be given a compulsory significance, but, as will hereafter appear, 72 it is even reasonable to suppose that in usiiiir language mandatory in its strict grammatical sense, it attached to it the meaning and effect of permissive words only. § 313. [A few illustrations will serve to elucidate the application of these principles, if, indeed, the instances of its operation cited in previous sections may not be deemed sufficient. An act directing the treasurer of a state to pay the members of its Legislature in gold coin, is mandatory upon him. 7 ' But after the famous legal tender decision of May. 1871, 74 an authority conferred by legislative resolution upon the state treasurer to pay certain bonds maturing in June, 1871, in coin was held not to be obligatory upon him. 76 Those who demanded payment in coin had no de jure claim to require it, when the bonds fell due, since it was ruled by the highest authority in the land that justice did not require the payment of honest debts in honest money. | Where a statute provided that, a court "may" appoint three commissioners to settle a disputed line between certain towns ; 7 " or " may,'" before incurring an expense, submit, the question to the people, 77 the word " may" was clearly intended \>< mean ''shall ;" for, in each case, the public interest was involved, and neither could, in the one, the towns agree to the appointment of a lesser number of commissioners, nor in the other, the court dispense with a popular vote. But « See post, §8 316, 431 et seq. reversing Hepburn v. Griswold, 8 ' People v. Beveridge, 38 111. Id. 603. Wt ; provided the coin was ill the •' Kellogg v. Page, -11 Vt. 356. treasury when the warrants were : ' ; Monmouth v. Leeds, TO Me. presented. 28. •> Knox v. Lee, 12 Wall. 457, " Steines v. Franklin Co., 48 Mo. 1(17. §314] PERMISSIVE WOIiDS. 429 an act which provided that it might be lawful to deliver the tax-list to a certain officer, a previous act having made it deliverable to another, for collection, was not deemed of such consequence to the public, or to the individuals who had to pay the taxes, as to require a construction which would make " may " equivalent to "must," but to leave the matter resting in sound discretion. 79 § 314. [An act authorizing the officers of a city to levy an annual tax of one per centum, part of which was to be set aside to pay the bonds of the funded debt of the municipality,, was clearly mandatory. 79 It subserved, not only the public interest, but directly the subsisting rights of third persons, the holder of bonds. 80 But an act authorizing the taking of land for a park in Boston, and laying out and improving'the same, etc., but providing that there should be no expenditure of money until an appropriation therefor was made by a two- thirds vote of each branch of councils, and permitting an issue of bonds to the extent of $500,000 each year, etc.,— whilst the public and even individual citizens and property holders might, in a certain sense, be said to be interested in the execu- tion of the power, did not provide for anything that any per- son had a subsisting right to demand should be done, but was held to confer a discretion. 81 So, in the case of an act author- izing the supervisors of a county to contract and appropriate money for a map, even though it made it their duty to con- tract, that word in itself and taken together with an absence of specification, by the act, of the size, etc., being held to imply a discretion. 82 And again, where a statute provides that a trial "may" be removed to another county, on the applica- tion of the defendant dnly supported by affidavit, or where 83 a statute merely permits the granting of licenses, 84 the permis- sive words cannot be construed as intended to be mandatory ; for the statutes are in the line, not of sustaining an existing, •> 8 Sciple v. Elizabeth, 27 N. J. 81 Boston, etc., Co. v. Boston, L. 407. See § 316. 143 Mass. 546. 19 Kennedy v. Sacramento, 10 s ' 2 Bowers v. Sonoma Co., 32 Sawyer, 29. Cal. 66. 80 See. also. Supervisors v. U. b3 Exp. Banks, 2S Ala. 28 ; see, 8., 4 Wall. 435; Galena v. Amy, also, Healy v. Dettra, (Pa.) 7 5 Id. 705 ; Ralston v. Crittenden, Centr. Rep. 168. 3McCrary, 332. M State v. Holt Co. Ct,, 39 Mo.. 521. 430 PERMI8SIVE WORDS. [ § 315 but of creating a new, right, and for the latter purpose, new rights not being created by implication, an intention to use permissive language in a mandatory sense will not be pre- sumed." It is but a corollary of this principle, that one who has no interest in a provision, permissive in form, cannot insist upon its performance ; as, 6. y., under a statute relating to foreclosure sales, and providing that such sales "may" be of parcels " so that the whole amount may he realized," it was held that the mortgagor, having no interest in the fund which was to he raised by the sale, and for the benefit of which the provision was intended, had no right to have it enforced/ ] § 315. Effect of Express Reference to Discretion. — 111 cases ill which, upon the principles stated, permissive words are to be read as mandatory, the exercise of the power is not made less imperative by express reference to the discretion of the authorized person. The duty of issuing a summons (a), or of examining the churchwarden's accounts (&), was as obligatory under the statute which empowered the justices to issue it or to examine them, " if they should so think fit," as it would have been if this expression had been omitted. Where the judgment creditor of a company " might " have execution against any individual shareholder of it, if he failed after due diligence to obtain satisfaction of his debt from the company, it was held by the Common Pleas that there was no discretion to withhold this remedy from him in any cose in which the Court was satisfied that the specific facts indicated by the statute existed — viz., that the debt was unpaid, that due endeavors had been made, and had failed, to put in force the execution against the company (c), and, it may be added, 85 Exp. Banks, supra ; State v. and upon the sole reason that the Holt Co. Ct., supra; and see Exp. executor resided in another state; Simonton, 9 Port. (Ala.) 390; a circumstance which the act was Mitchell v. Duncan, 7 Fla. 13. held not to make a ground for See Cutler v. Howard, 9 Wis. 309, removal. See the strictures upon where, under a statute that pro- this case in Sedgw. , p. 376, note, vided that the court "may" 86 Banscmer v. Mace, 18 Ind. 27. remove an executor for certain (a) R. v. Adamson, sup. § 300. specified causes, the court refused (b) Ii. v. Cambridge, sup. § to exercise the discretion merely 300. upon the application of a legatee (c) 7 & 8 Vict. c. 110; Morisse v. who, it was held, could not be British Bank, 1 C. B. N. S. 07; benefited by, and had no interest Hill v. London & Co. Assur. Co., in, the removal of the executor, s 5 316] permissive words. 431 that tlie creditor had done nothing to disentitle him to exe- cution againat the shareholder (a) ; although the statute not only directed that the leave of the Court was to be asked for the execution, but provided that it "should be lawful ' for the Court to grant or refuse the application for it, and %i to make such order as it might see fit." Another familiar instance may be found in the case of a distress warrant to enforce a poor rate. It is well known that in every case where certain specific facts are proved, viz., that a rate, valid on its face, was made by a competent authority, that the rated land is in the district and in the occupation of the defaulter, and that the latter has been summoned and has not paid, the justices have no option to refuse the warrant, though the statute says only that they " may " issue it " if they think fit" (b). In all such cases they must exercise the power ; they must " think fit " to do so whenever the occa- sion for it has arisen. In America, where it was enacted that city councils "might, if deemed advisable" (c), or even " might, if they believed that the public good and the best interests of the city required it " (d), levy a special tax to be expended in the liquidation of their debts, the Supreme Court issued a mandamus to levy the tax where it was proved that a debt existed, and that there were no other means in possession or prospect for their payment ; holding that the discretion of the Town Councils was limited by their duty, and could not, consistently with the rules of law ( Wainwright, 1 Phil. 258. again be adverted to. In a recent See, also, in deeds, Spyve v. Top- decision, referred to above, § 295, ham, 3 East, L15; Dent v. Clayton, note, the Court of Appeals of New :;:; L. J. Ch. 50:; ; Wilson v. Wil- York said : "If [the Legislature! son, 5 II. L. C 40, 23 L. J. Ch. have failed to insert such provis- 697; and in wills, Greenwood v. ions in the law as will accomplish £ ;>18] oobre( rioa 01 errors 433 [So again, where the first section of an act authorized an aqueduct company to take and use the water of two ponds and of a certain lake, and the fifth section provided that nothing in the act should be so construed as to authorize the company " to raise the water of any of said ponds above high water mark," etc., it was held that the restriction applied as well to the lake as to the pond And conversely, if, from all sources of interpretation, it appears that a provision was inadvertently inserted in a stat- ute, it may be disregarded. 91 Thus, the words "or both such fine and imprisonment at the discretion of the Court," which had been cut out of the original act by a subsequent one, but were erroneously re-instated in the reproduction of the act in a section of a revision of statutes, relating to assault and battery, were treated as inoperative." 2 And it is said that the fact that a code is declared to be embodied in the law, does not give the effect of law to inaccuracies that may have crept into the book. 93 So, where two acts, the one passed in 1867, declaring bills of exchange and promis- sory notes payable at a bank or private banking house to be governed by the commercial law ; the other, passed in 1873, declaring bills of exchange and promissory note payable at a bank or banking house, or at a certain place of payment therein designated to be so governed, were inserted in a code, under § 2100 and § 2074 respectively, it was held that the insertion of the earlier act must be considered as an oversight on the part of the codifiers, and that the section embodying the act of 1873 must be held to repeal the other so far as there was any conflict between them. 04 ] § 318. Elliptical Sentences. Transposition of Words, etc The sixth section of Lord Tenterden's Act furnishes another example of clerical neglect, which was treated in the same the result intended, their omission beyond, " we have no doubt," etc. cannot be remedied by coustruc- 9I Pond v. Maddox, 38 Cal. 572. tion, and the law must to that See, also, Jones v. Hutchinson, 43 extent be considered defective and Ala. 7-1 ; Com'th v. Jackson, 5 inoperative :" Furey v. Gravesend, Bush (Ivy.) 680. 104 N. Y. 405; 6 Ccntr. Rep. 501, 92 State v. Lee, 37 Iowa, 402. 503.] 93 Atlanta v. Gas Light Co., 71 90 Brickett v. Haverhill Aqueduct, Ga. 106. 142 Mass. 394. No reason is given 94 Mobile Sav. B'k v. Patty, 16. by the court for this construction, Fed. Bep. 751. 28 434: CORRECTION OF ERRORS. [§318 spirit. It enacts that no action shall be brought in respect of a representation made by one person concerning the con- duct or credit of another, to the intent that the latter " mar obtain credit, goods, or money upon,'' .... unless the re- presentation was in writing. The text is clearly imperfect. Lord Abinger, while deeming any conjectural transposition of the words inadmissible, held thai the word " upon " must be rejected as nonsensical; hut Baron Parke considered that the Court was at liberty either, by transportation, to read the passage " may obtain goods or money on credit," or to inter- polate after "upon" the words "such representations" (a). [A transposition of words is, indeed, to be made wherever the intention of the Legislature and the context require such a change. 95 Thus "current expenses of the year " was read "expenses of the current year;" 9 " and in another case a clause in a section of revised statutes was construed as if a proviso found in the middle of the clause were placed at the end, 07 and again, in construing a statute so as to make it con- form to the legislative intent, it was held that a clause which was included in the second section should be read as if included in the first, and as qualifying the provisions of the latter. 98 ] (a) Lyde v. Barnard, 1 M. & W. 101, 115. In statutes governed by the pi inciplc el' strict construction, such emendations have been refused: See Underhill v. Long- ridge, etc., inf., § ^ J-3'J. Matthews v. Com'th, 18 Gratt. Va.)989. !,ij Babcock v. Goodrich, -17 Cal. 188. ^ 91 Waters v. Campbell, 4 Sawyer, 121. 98 Slate v. Turnp. Co., 1G Ohio Si. 308. Comp. however, Peer v. Considine, G Wall. 458, ante, § 13. The power of the court to transfer clauses in a statute, the grounds upon which, and the methods by which, it will be exercised are well illustrated by two cases, one arising in Virginia, ami already referred Mil' othev decided in Nebraska. In the former Case, Matthews v. Com'th, 18 Gratt. (Va.) 989, it was 1 that a construction is to be put upon a statute, which conforms to ii- obvious intention, though the collocation of the different branches of a provision are, by mistake, so arranged asto lead at first blush to a different conclusion. The inten- tion having been found (1) by the reason of the thing, (2) by the grammatical construction of the section as i' stood, showing thai a i in clause should follow, instead "( preceding, another, and by the context, reference was in ide to the legislative journals to verify the construction arrived al by a transposition of the clauses in accordance with the intention thus ertained, when it was found that an amendment by inserting certain words after a designated word in the original act had been made without regard to the fact that certain other words had been already inserted by a previous amendment. In the other case, Siaic v. Forney, 21 Neb 223, 226 el seq., the court, in construing an ;:;19J CORRECTION OF F.RIMKS. t35 § 319. Clerical Errors. — Clerical errors may be read as amended (a). Thus, in the provision of the Metropolitan Local Management Act, that no road shall be formed as a street for carriage traffic unless widened to forty feet, or un- less such street shall be open at both ends, the word "or" was read "nor," for the manifest intention was not that one of the two, but that both conditions should be complied with ; that is, that the street should not only be forty feet wide, but also be open at both ends (l>). [In an act incorporating a railway company, and prescribing a method by which the same could acquire the title to lands, where no agreement could be arrived at amicably, Iry proceedings in the court of common pleas " upon final judgment or appeal therefrom," it was held, that, both on the ground of absurdity there being no such thing as an appeal allowed from a final judgment, and by analogy with former railroad acts, ''or" should be read "on." 99 So too, "acts" was read "act." 10 * " Venire " was read " venue," in a statute declaring that the net said that :i bare inspection of the 4th section, or that part of it which preceded the proviso, would satisfj anyone that the Legislature never intended to pass it in that form ; that an examination of ^ 5, as printed, would show that g 1. as originally drafted, contained certain words of £ 5 as printed ; that the records disclosed the fact that such was the form of the bill as introduced, and as it stood until it came from the Lain Is of the printer, in the form in which it was finally passed and stood upon the statute book ; that the portion of § 4 coming just before the pro- viso meant nothing at all, as it stood ; whilst, read in connection with the portion of § 5 referred to, it showed a certain purpose ; and that it must accordingly be so read. (a) As where, for instance, an Act refers to another by the title and date, and mistakes the latter: 2 Inst. 290 ; Anon. Skiun. 110 ; R. v. Wiicock, 7 Q. B. 317; Re Boothrovd, 15 M. ); and in this sense; an equitable con- struction is plainly free from objection ; [what is within the plain intention of the makers of a statute, not falling under the rule of strict construction, 117 being as much within the statute, as if it were within its letter, 118 and that which is plainly not within the intention of a statute, remaining un- affected by it, although the letter of the law, disregarding the limits of its scope and object, would prima facie include it. 118 ] The " equitable " construction, which included uses within the Statute de donis, though that enactment spoke only of " lands and tenements," and may have originally contemplated only common law estates (c), and which applied the 2 Hen. 5, c. 3 (requiring that a juror should have "lands" worth forty shillings), to the cestui que use r and not to the feoffee, when the legal estate was in the latter (d), would seem to fall within the now recognized ordinary rules of construction. The 4 Ed. 3, c. 7, which gave execu- tors an action against trespassers for a wrong done to their testator, was said to have given them also an action on the case, by " the equity " of the statute (e) ; but the decioion was strictly on the letter of the Act. It turned on the con- struction of the word "trespass," which was held to mean a (a) Co. Lilt. 24b ; Bac. Ab. Stat- 519 ; *'. e., if it conies within the ute I. 6; Com. Dig. Parliament, same, not merely -within a like rca- R. 13. [Hersha v. Brenneman, son : U. S. v. Freeman, 3 How. Serg. & If. (Pa.) 2 ; Lehigh Bridge 556, 5G5, and see Jacob v. U. S., 1 Co. v. Coal, etc., Co., 4 Rawle (Pa.) Brock, Marsh. 520. 0.] 119 See ante, §§ 73 et seq., 113 ('<) R. v. Williams, 1 W. Bl. 95. et seq. 1,7 See Melody v. Reab, I Mass. (c) Corbet's Case, 1 Rep. 88. 471. (d) Co. Litt. 272b. , " , Riddick v. Walsh. 15 Mo. (c) Russell v. Prat, Leon. 194 §321] EQUITABLE CONSTRUCTION. 439 wrong done generally, and of " trespassers," which was held to mean wrongdoers (a). The decision that the Statute of Gloucester, c. 5 (which gives the action of waste against lessees for life, or " for years," to recover the wasted place and treble damages) reached " by equity" a tenant for one year and even for half a year, was apparently of a similar character (5). So, when it is said that it is on "the equity," or " equitable construction " of the Statute 2 W. & M. c. 5 (which empowers a landlord to sell for the best price the goods which he has distrained for arrears of rent, if the ten- ant does not replevy in five days), that an action lies against the landlord who sells before the expiration of five days, though after impounding ( >24: poraneously prevalent (a). It lias also been accounted for by the fact that in those times the dividing line between the legislative and judicial functions was feebly drawn, and the importance of the separation imperfectly understood (b). The ancient practice of having the statutes drawn by the judges from the petitions of the Commons and the answers of the King (c) may also contribute to account for the wide latitude o! their interpretation. The judges would naturally be disposed to construe the language in which they framed them as their own, and therefore with freedom and indul- gence. § 324. Equitable Restriction of Modern Statutes. — But an equitable construction has been applied also to more modern statutes, and in a sense departing still more widely from the language, [restraining a statute "by equity " 1 where a case was within its words, but supposed not to be within its mis- chief. 129 ] Thus, although the 3rd section of the 21 Jac. c. 16, enacted that certain actions should be brought within six years after the cause of action accrued, "and not after," it was nevertheless held, notwithstanding these negative terms, that where an action was Wrought within six years, but abated by the death of either party, a reasonable time — that is, a year, computed, not from the death, but from the grant of administration — was to be granted by an equitable con- struction of the statute beyond the period given, to bring a fresh action by or against the personal representatives of the deceased (d). The provision of the Statute of Frauds, which prohibits the enforcement of agreements for the pur- chase of lands, unless they be in writing, was held not to prevent the Court of Chancery from decreeing the specific performance of such agreements, though not in writing, where they had been partly performed. On all questions on that statute, it was said, the end and purport for which it was made — namely, to prevent frauds and perjuries — was to be considered ; and any agreement in which there was no (a) Per Lord Ellenborough in (d) llodsden v. Harridge, 2 Wms. Wilson v. Knubley, 7 E;ist, 134. Saund. G4a ; Curlewis v. Morning- (6) Bedg. Interp. Stat. 811. ton, 7 E. & 13. 283, 27 L. J. 439. (c) Co. Lilt. 272a ; sup. §08, note. See, also, Piggott v. Rush, 4 A. & m \Vilb.,p. 243. E. 912. § 324] EQUITABLE CONSTRUCTION. 445 danger of either, was considered as out of the statute (a). The statute was not made to cover fraud (b) ; and as it would be a fraud on one of the parties if a partly-performed con- tract were not completely performed, the Court of Chancery compelled its performance in contradiction to the positive enactment of the statute ( 450 EQUITABLE CONSTRUCTION. [§328 Act of Parliament made against natural equity, as to make a man judge in his own case, was void ; and induced Lord Chief Justice Holt to say, in the case of the City of London v. Wood, that the observation of Lord Coke was not extrava- gant, but was a very reasonable and true saying. Perhaps what Lord Coke said in his reports on this point may have been one of the many things that King James alluded to, when he said that in Coke's reports there were many danger- ous conceits of his own uttered for law, to the prejudice of the crown, parliament, and subjects " (a). («) 1 Kent, Comm. 447. 329] STKICT CONSTRUCTION. 451 CHAPTER XII. Strict Construction. § 329. The Rule of Strict Construction Applied to Penal Statutes. § 330. Results of Application of the Rule. § 331. What are Penal Laws. § 3SJ2. Acts Partly Penal. Frauds. § 334. Degree of Strictness to be Applied. Illustrations. § 335. Exclusion of New Things by Rule of Strict Construction. § 336. Treatment of Omissions in Acts within Rule of Strict Construc- tion. § 337. Qualifications of Rule of Strict Construction. Modern Tendency. § 340. Acts Encroaching on Rights. § 341. Common Law Rights of Persons and Property. § 344. Summary Proceedings. § 345. Acts Imposing Burdens. § 347. Acts Allowing Costs. § 348. Acts Regulating Form and Execution of Contracts. § 349. Acts Creating Monopolies, etc. § 350. Acts Creating Exceptions from Recognized Liabilities, etc. § 351. Acts Creating New or Special Jurisdictions. § 352. Acts Delegating Powers. § 354. Acts Investing Private Persons with Privileges. Corporations. § 356. Acts Conferring Exemptions from Common Burdens or Surren- dering Public Rights. § 329. The Rule of Strict Construction applied to Penal Statutes. — The rule which requires that penal 1 and some other stat- 1 See U. S. v. Hall, 6 Cranch, 8 Centr. Rep. 623, 624 ; Philadel- 171 ; U. S. v. Sheldon, 2 Wheat, phia v. Davis, 6 Watts & Serg. 119 ; U. S. v. Starr, Hemps. 469 : (Pa.) 269 ; Gallagher v. Neal, U. S. v. Dist. Spirits, 10 Blatchf. 3 Pen. & W. (Pa.) 183 ; War- 428 ; U. S. v. Clayton, 2 Dill. 219 ; ner v. Com'th. 1 Pa. St. 154 ; The Enterprise, 1 Paine, 32 ; Bucher v. Com'th, 103 Id. 528 ; Andrews v. U. S., 2 Story, 202; Simms v. Bean, 10 La. An. 346; Whitney v. Emmett, Baldw. 303 ; State v. Whetstone, 13 Id. 376 ; Matter of Baker, 29 How. Pr. Rawson v. State, 19 Conn. 292 ; (NY.) 485; Hankins v. People, 106 Pierce's Case, 16 Me. 255 ; Hall v. 111. 628 ; Bettis v. Taylor, 8 Port. State, 20 Ohio, 7 ; Ramsey v. Toy, (Ala.) 564 ; Gunter v. Leckey. 30 10 Id. 493 : Sieel v. State, 26 Ind. Ala. 591 ; Lair v. Killmer, 25 N. J. 82 ; West. Union Tel. Co. v. L. 522 ; State v. Newton (N. J.) Steele, 108 Id. 163 ; State v. Solo- 4"'L' STRICT] CONSTRUCTION. [§ 329* utes shall be construed strictly was more rigorously applied in former times, when the number of capital offences was mie hundred and sixty or more (a) ; when it was still pun- ishable with death to cut down a cherry-tree in an orchard,, or to be seen for a month in the company of gipsies (I). But it has lost much of its force and importance in recent times, since it has become more and more generally recog- nized that the paramount duty of the judicial interpreter is to put upon the language of the Legislature, honestly and faithfully, its plain and rational meaning, and to promote its object. It was founded, however, on the tenderness of the law for the rights of individuals, and on the sound prin- ciple that it is for the Legislature, not the Court, to define a crime and ordain its punishment ( Hill (S. C.) 9G ; Hiues v. fully carried into effect," — a pro- R. It. Co., 95 N. C. 434; Khun v. vision, which, it was there said, Rawson, 21 Ga. 139;' Gibson v. thougb applying to all statutes, Siale, 38 Id. 571 ; Horner \. Slate, does not require the court to bring 1 Oreg. 267 ; Bish., Wr. L., §£ 190, cases of a like nature, not named 226 et seq. An ordinance penal in terms, or by implication, into a in its nature is equally subject to statute, nor yet to give a narrow the rule of strict construction: and restricted meaning to the Ian- Pacific v. Seifert, 79 Mo. 210. In guage employed, but fairly and the case of Hankins v. People, 106 reasonably to carry out the legis- 111. (528, the rule of strict construe- tative intent. tiou of penal statutes in the sense (a) 4 Bl., Comm. 18. Accord- in which alone it is respectable ing to Sir S. llomilly, it was, in (see infra) was asserted in the face his time, two hundred and thirty, of a statutory rule of construction (b) 4 Bl., Comm. 4. that "all general provisions, (c) U. S. v. Wiltberger, 5 terms, phrases and expressions Wheat. 95. Khali be literally construed, in (d) 4 Inst. 332. order that the "true intent and 2 Atlanta v. White, 33 Ga. 229. meaning of the Legislature may be § 329] STRICT CONSTRUCTION. 453 applications (a), or of magistrates' convictions, where the ambiguity goes to the jurisdiction (IS). Nor does it allow the imposition of a restricted meaning on the words, wherever any doubt can be suggested, [or an ambiguity imagined, 3 ] for the purpose of withdrawing from the opera- tion of the statute a case which falls both within its scope and the fair sense of its language. This would be to defeat, not to promote, the object of the Legislature (c) ; to misread the statute and misunderstand its purpose (d). A Court is not at liberty to put limitations on general words which are not called for by the sense, or the objects, or the mischiefs of the enactment (e) ; [nor so to narrow the construction as to exclude cases which the words of the statute, in their ordinary acceptation and plain meaning, or in the sense in which the Legislature obviously used them, would compre- hend ; 4 ] and no construction is admissible which would sanc- tion an evasion of an act (/), [or would defeat the obvious intention of the Legislature. 5 In order to avoid such a result, as has been seen, it is even allowable to reject what is clearly surplusage in an act. 6 " It is true that a penal law must be construed strictly, and according to its letter. But (a) See ex. gr. Perks v. Severn, 7 East, 194 ; Fricko v. Poole, 9 B. & C. 543. {b) See R. v. Davis, 5 B. & Ad. 551 ; R. v. Jones, 12 A. & E. 684 ; per Coleridge, J., in R. v. Toke, 8 A. & E. 227; per cur. in Lindsay v. Leigh, 11 Q. B. 405 ; R. v. Stain- forth, Id. 75; Fletcher v. Calthrop, 6 Q. B. 880. 3 See Com'th v. Martin, 17 Mass. 359 ; Com'th v. Keniston, 5 Pick. (Mass.) 420. (c) Bac. Ab. Stat. I. 9 ; R. v. Hodnett, 1 T. R. 101. (d) Per Martin, B., in Nicholson v. Fields, 31 L. J. Ex. 236. 7 H. & N. 710; and Brarnwell, B., in Foley v. Fletcher, 3 II. & N. 781. (e) U. S. v. Coombs, 12 Peters, 80. 4 U. S. v. Wilson, Baldw. 78; State v. Lovell, 23 Iowa 304 ; Huffman v. State, 29 Ala. 40; Walton v. State. 62 Id. 197 ; Pike v. Jenkins, 12 N. II. 255. (/) Com. Dif> cases clearly within the same reason and within the mischief the act was designed to cure, unless such construction does violence to the language, a consideration of the old law, the mischief and the remedy, though proper in the construction of criminal as well as other statutes, 11 is not in itself enough to bring a case within the operation of the former class of statutes ; their language, properly given its full meaning, must, at least by that meaning, expressly include the case; and in ascertaining that meaning the court cannot go beyond the plain meaning of the words and phraseology employed in search of an intention not certainly implied in them. 13 In other words, whilst a case may come within the purview of a remedial statute unless its language, properly construed, excludes it, it is excluded from the reach of a criminal statute, unless the language includes it : 14 unless the proper meaning of the language of the statute brings a case within its letter, the rule of strict construction forbids the court to create a crime or penalty by con- struction, and requires it to avoid the same by construc- tion ;' 5 and, although the court may be unable to conceive any reason why the case in question should have been omit- ted, and considers it highly improbable that an omission was intended, 18 it is not at liberty to extend the enactment to cases not included within the clear and obvious import of the language ; ,T so that, for instance, under an act, which, in its eighth section provided for the punishment of certain offences, among which manslaughter was not mentioned, committed upon the high seas, or in any river, haven, basin or bay, and in section twelve, punished manslaughter on the high seas, no indictment could be maintained against one for manslaughter committed on board an American vessel, in the River Tigris, in China, sixty-five miles from its mouth." If the Legislature has not used words sufficiently compre- hensive to include within its prohibition all the cases which 1S See ante, § 27; post, § 33T. Cooke, supra ; Philadelphia v. 13 Hines v. It. R. Co., 93 N. C. Wright, 4 Phila. (Pa.) 138. 431 '» U. S. v. Wiltbergcr, 5 Wheat. u State v. Powers, 30 Conn. 77. 76, 105. 15 West. Un. Tclegr. Co. v. "Ibid.; U. S. v. Ragsdale. Axtell. 69 Ind. 199 ; Lair v. Kill- llempst. 497 ; State v. Peters, 37 mer, 25 N. J. L. 522 ; Com'th v. La. An. 730. 18 U. S. v. Wiltberger, supra. 456 STRICT CONSTRUCTION. [§§330,331 fall within the mischief intended to be prevented, it is not competent to a Court to extend them (a) ; [nor to extend the grammatical and natural meaning of the terms ;is used by the Legislature even on a plea of a resulting failure of justice. 1 § 330. Results of Application of the Rule. — [It may be here added that the rule of strict construction, in the case of penal statutes, requires, that, where an act contains such an ambiguity as to leave reasonable doubt of its meaning, it is the duty of the court not to inflict the penalty ; ao that where it admits of two constructions, that which operates in favor of life or liberty is to be preferred ; 21 that, where a statute is silent as to the place of imprisonment, there being county jails for persons guilty of misdemeanors, and the penitentiary for those guilty of higher crimes, the former, rendering the punishment less severe, is to be chosen ; M and that, where notice is required by an ordinance imposing a fine, a personal notice is to be intended. 23 ] §331. What are Penal Laws,— It is immaterial, for the purpose of the application of the rule of strict construction, whether the proceeding prescribed for the enforcement of the penal law be criminal or civil {b). [Thus, an act giving a party injured a civil action for the recovery of a penalty imposed upon a public officer for charging illegal fees, is a penal act: so that the taking of excessive fees by a person after the expiration of his office, for services done while in office, is beyond the reach of the act. 24 So, too, acts have (a) Per Lord Tenterden in Proc- may, as well as those that must be. tor v. Manwaring, 3 B. & A. 145. so punished: State v. Maybeny, 48 19 Remmington v. State, I Oreg. Me. 218. See post, § 389. 281. (b) Eenderson v. Sherborne, 2 M. 20 Com'th v. Standard Oil Co., & W. 236; Nicholson v. Fields, 7 101 Pa. St. 119, L50 ('it. The II. & N. 810 ; Fletcher v. Hudson. Enterprise, I Paine, 33); Hines v. 51 L. J. Q. B. 48; The Boliua, 1 R. R. Co., 95 N. C. 134. Gallison, 83, per Story, J. 21 Com'th v. Martin, 17 .Mass. M Aechternacht v. Watmough, 8 859 ; Com'th v. Keuistou, 5 Pick. Walts 7 been held oenal, and subject to the rule of strict 'construction, which impose upon a party neglecting within a certain time after notice to him to enter, by himself or his attorney, satis- faction of a judgment paid with costs, a forfeiture of one- half the debt, to be recovered by the defendant;" (so that a notice to the plaintiffs attorney, not to the plaintiff himself, would not entitle the defendant to maintain the action for the penalty 36 ) : which authorized the addition of a percentage to a tax assessed against a party, upon failure to make a certain report or return required by the act; 27 or imposed a liability for interest at the rate of twelve per cent, per annum for non-payment within a certain period after it was due, and notice thereof was given, and demand made for the same: 58 acts which make a party liable to judgment for double the amount of the damages found by the jury f or to double or treble damages ; 30 though the suit may have none of the ■characteristics of a criminal prosecution; 31 and acts concerning contempts. 3 * It is not necessary that the statute should, like statutes of the class last enumerated, denominate the liability to which a person is subjected by it a penalty or forfeiture. Wherever a person in a particular relation, e. g., as the officer of a company, is, as such, made liable to the payment of money, either as the resnlt of the omission of something, the performance of which is enjoined upon him, or for the commission of an act prohibited, where, but for the omission of the enjoined, or the doing of the forbidden act, he would be under no such liability, the imposition of the latter is, so far as he is concerned, by way of punishment, and the act is, as to him, penal. 83 Nor, on the other hand, is every statute when it is given to the party 29 Bay City, etc., R. R. Co. v. grieved. Austin, 21 Mich. 390. = * 5 Marston v. Tryon, 108 Pa. St. :; " Reed v. Davis. 8 Pick. (Mass.) 270. 515; Cole v. Groves, 134 Mass. 26 Ibid. See St. Louis v. Goebel, 471 ; Cohn v. Neeves, 40 Wis. 3'J3, 32 Mo. 295, ante, § 330. See § 74. and see Bayard v. Smith. 17 \\ end. « Com'th v Standard Oil Co., (N.Y.)88; Suffolk B'k v. Worces- 101 Pa. St. 119, 150. terBk, 5 Pick. (Mass.) 106; Palmer 28 Ibid. But a percentage thus v. YorkB'k, 18Me. 166. added beennvs part of the tax, 8I Heed v. Northfield, 13 Pick, lenlitled to the same priority the Mass.) 94. law gives to the latter over other S2 Maxwell v. Rives, 11 Nev. 213. lens on laud: Titusville's App., ^ Merchant's B'k, v. Bliss, 13 108 Pa. St. 000. Abb. Pr. (N. Y.) 225; 21 Id. 305. 458 8TJRI0T CONSTRUCTION. [§§332,335 relating to the administration of the criminal law necessarily penal and to be construed as such ; as, e. g.< an act relating to offences committed on board of boats navigating a river or canal, not creating the offences, nor prescribing their punishment, <>r altering the mode of trial, but simply declaring that an indictment for such an offence may be found in any county through which the boat may pass." § 33*2. Acts Partly Penal. Frauds.— [It is quite possible, that, in the same statute, both the strict and the liberal con- struction may be .applied. It has been said, indeed, that, where an act is both penal and remedial, it will be strictly construed, 36 as e. See Bisli., Wr. L-, §§ 19G, 226. '" Hathaway v. Johnson, 56N.Y. 41 Ante, § 186. 93. 4 ' 2 Gorton v. (Jlianipncys, 1 Bing. " short v. Hubbard, 2 Bing. 349, at p. 301; dimming v. Fryer, § 333] STRICT CONSTRUCTION. 459 construction is afforded by the decisions under the 9 Anne, c. 14, against gaming, which was held to be remedial when an action was brought by the party injured, but penal, when an action was brought by a common informer. 43 It has been said, somewhat vaguely, in this country, that "a statute which is penal as to some persons, provided it is beneficial generally, may be equitably construed;" 44 and that "laws enacted for the prevention of fraud, for the suppression of a public wrong, or to effect a public good, are not, in the strict sense, penal acts, although they may inflict a penalty for violating thein;" 45 and upon that principle, revenue laws were held not to be penal, nor subject to the rules of strict construction, but to require such interpretation "as most effectually to accomplish the intention of the Legislature in passing them;" 46 and in Maine, an act giving damages- against any person assisting a debtor to defraud his creditor, to double the amount of the property fraudulently concealed or transferred, was held not to be a penal statute. 47 No doubt, " where grievances have to be redressed, or property to be protected, there are offenders as well as sufferers, assailants as well as assailed. The act which gives a remedy to one who is aggrieved almost inevitably inflicts a penalty on his opponent ; ' every statute is penal to somebody.' But if the primary object of the act is redress, and not punishment,, it is to be construed liberally. ' The legal distinction between remedial and penal statutes is this: that the former give relief to the parties grieved, the latter impose penalties upon Dudley (Ga.) 182; Bish., Wr. L., struction of Statutes, etc., makes. § 192, referring to Gumming v. the following note to the above Fryer, supra; Carey v. Giles, 9 Ga. utterance: "It may be permitted 253; Smith v. Moffat, 1 Barb. (N. to us to ask with defeierice, Y.) 65; Ellis v. Whitlock, 10 Mo. whether all laws must not be 781. And see llahn v. Salmon, 20 supposed intended to ' effect a Fed. Rep. 301. The liberal con- public good ;' and whether the struction of statutes against usury effort ' to accomplish the intention seems, as least in pari, based upon of the Legislature' should be any this principle. See Gray v. Ben- more earnest in this case than in nett, 3 Met. (Mass.) 522. all others." Certainly, criminal 43 Bones v. Booth, 2 W. Bl. lawsare most emphatically intended 1226. to "effect a public good,"— the 44 Sickles v. Sharp, 13 Johns. more highly penal, the greater the (N. Y.) 497. good. 45 Taylor v. U. S., 3 How. 197. 47 Frohock v. Pattee, 38 Me. 46 Ibid. See post, £ 346. Mr. 103. Comp. ante, § 330. Sedgwick, in his work on the Con- 460 STEICT CONSTRUCTION. [§ 334 offences committed.' "* 8 It would follow that the construc- tion should be strict or liberal, accordingly as the design to give redress or to impose penalties should appear to lie at the bottom of the enactment ; or strict as to one part and liberal as to another, where severable, if the one is confined to punishment, and the other extends to redress.] § 334. Degree of Strictness to be Applied. Illustrations. — 1 he degree of strictness applied to the construction of a penal statute depended in great measure on the severity of the statute. When it merely imposed a pecuniary penalty, it was construed less strictly than where the rule was invoked in favorem vitre. 49 But the rule of strict construction requires, at least, that no case shall fall within a penal statute which does not comprise all the elements which, whether morally material or not, are in fact made to constitute the offence as defined by the statute, [ft is not intended to make this chapter a treatise upon criminal statute law, or to examine, with any degree of minuteness, the decisions upon, and in construction of, such statutes. An attempt to do so would lead to proportions entirely incompatible with the general scope of this work, and would trench, to a corresponding extent, upon the province of works upon that particular subject. All that is here designed is to lay down those general principles, belonging distinctively within the limits of a work upon the interpretation of statutes, without the state- ment of which a discussion of this subject would remain in- complete, and to cite a few instances merely, illustrative of the propositions laid down, referring the reader, for a more ex- haustive examination and detailed comparison of decisions, to such works as Mr. Bishop's Treatise upon Statutory Crimes. As an illustration, then, of the principle just stated, it may be remembered that] a person cannot be convicted of perjury if the oath was administered by one who had not legal authority to administer it, as in the case of an affidavit in the 48 "Willi., pp. 232-233, cit. Piatt that tlie rule of strict construction v. Sheriffs of London, Plowd. at is confined to criminal statutes of ji. 36, and Huntingtower v. Gar- a highly pcnul character, and lias diner, 1 B. iV C. at p. 299. no application in the construction 49 It is, indeed, intimated, in of acts creating or punishing Randolph v. State, 9 Tex. 521, mere misdemeanors. § 334] STRICT CONSTRUCTION. 461 Admiralty sworn before a Master in Chancery, though the Admiralty was in the habit of admitting affidavits so sworn (a). An act which made it penal to personate " any person entitled to vote" would not he violated by personating a dead voter (b) ; [nor an act prohibiting, under penalties, a person from ''voting at any election who is not entitled," or "out of the county, or city, or town of his residence," by a voter's voting- at an election for municipal officers out of the ward of his residence. 60 ] An agent entrusted with money to invest on mortgage is not liable to conviction for embezzling it, under an Act which makes it a misdemeanor in an agent to misappropriate property entrusted to him "for safe custody" (c). [Nor does an act making the embezzle- ment or fraudulent conversion of money, goods, etc., to be carried for hire, larceny, cover the case of such misappropri- ation of goods received on storage."] The Act which pun- ishes the administration of a noxious drug would not include a substance which is not in itself poisonous, but noxious only when given in excess, as cantharides (d). The Metropolis Local Management Act of 1862, in incorporating the powers- for the " suppression " of nuisances, conferred by an earlier local Act, which contained, besides several provisions forget- ting rid of existing nuisances, a prohibition against keeping; pigs, was held not to have comprised this last provision, as the effect of it was, not to " suppress," but to prevent the creation of nuisances (e). Where on Act, after providing, by one section, that any building, built or rebuilt, except on the site of a former dwelling, should not be " used " as a dwell- ing, unless there was an open space of twenty feet in front of it, without the previous consent of the local board, imposed, by another, a penalty if any building or work were " made or suffered to continue " contrary to the provisions of (a) R. v. Stone, 23 L. J. M. C. R. & R. 324. 14. [8. P., Shaffer v. Kintzer, 1 60 Nettles v. State, 49 Ala. 35. Binn. (Pa.) 537; Phillipi v. Bowen, (e) 24 & 25 Vict. c. 90. s. 70 ; R. 2 Pa. St. 20.] v. Newman, 51 L. J. M. C. b7. (5) White.ey v. Chappell, L. R. 51 State v. Stoller, 38 Iowa, 321. 4 Q. B. 147. See, also, R. v. Brown, () Chelsea Vestry v. King. 17 different if the offence were per- C. B. N. S. 025 ; 34 L. J. M. C. 9. sonating a person "supposed to See Great Western R. Co. v.. be entitled to vote :" R. v. Martin, Bishop, L. R. 7 Q. B. 550. 162 STRICT CONSTRUCTION. [§335 the Act ; the Court refused to construe the latter section as including the offences prohibited in the former, though the effect of the decision was to leave them without specific provision for their punishment (a). [An act imposing a penalty for breach of duty in cast' of bad faith, partiality or discrimination, does not punish a mere act of neglect. M § 335. Exclusion of New Things by Rule of Strict Construction. A -aim as illustrative of the rule of strict construction, it has been said that while remedial laws may extend to new things not in esse at the time of making the statute (b), penal laws may not. Thus, the 30 Eliz. c. 12, which took away the benefit of clergy from accessories after, as well as before, the fact, was held not to extend to accessories made by subsequent enactment. The receiver, therefore, of a stolen horse, who was made an accessory by a later statute, was held not ousted (c). Where one Act (24- & 25 "Vict. c. 96, s. 91) made it felony to receive with guilty knowledge a chattel, the stealing of which was felony either at common law or under that Act ; and a subsequent one (31 & 32 Vict. c. 116) made a partner who stole partnership property liable to conviction for the stealing, as though he had not been a partner; it was held that to receive such stolen property was not an offence under the earlier Act (d). The Stock Job- bing Act, which, after referring, in the preamble, to the great inconveniences which had arisen, and daily arose by the wicked practice of stock jobbing — diverting men from their ordinary pursuits, ruining families, discouraging in- dustiw, and injuring commerce — declared void all such con- tracts "in any public or joint stock, or other public securi- ties whatsoever," was held, notwithstanding the mischief in view, and the wide terms used, not to apply to transactions (a) Pearson v. Hull, 3 II. & C. W. U. T. Co. v. Reed, OK Id. 195 ; 921, 35 L. J. M. C. 44; diss. Mar W. U. T. Co. v. Kinney, 106 Id. tin. B. See another example in 4G8) or any one other than the Elliott v. Majendie, L. It. 7 Q. B. sender could recover the penally, 429. was not decided in this case. 52 West. Union Tel. Co. v. (/>) 2 Inst. 35; per car. in stxle, 108 Ind. 163. Whether Dawes v. Painter, Preem. K. 15. under the act referred to, relating 176. Sup. S, 112. to the sending of telegraphic mes- (c) Post. (Jr. L. 372. See § 85. sages, the sender alone (See W. U. (d) 11. v. Smith, L. It. 1 C. C. Tel, Co. v. Pendleton, 95 Ind. 12 ; 270. §335] BTEICT CONSTRUCTION. 4G3 in foreign funds (a) or in railway shares (/>), oil the ground that the former were not dealt in, and the latter were not known in, England, when the Act was passed. [Nor does an act making void securities given for money lost in " cock- fighting, bullet-playing, or horse-racing, or at or upon any game of address, game of hazzard, play organic whatsoever," embrace a bond given by way of margin in a stock gambling transaction ; M although the transaction is clearly a gambling transaction. 64 Upon the same principle, at least in part, a wager upon the result of a primary election was held not to be a penal offence within the Pennsylvania acts of 1817 and 1839, punishing wagers upon the results of elections, since, at the time of the passage of those acts, " primary elections" were unknown in that state. 66 ] But the degree of strictness [indicated by the English decisons above referred to] may be regarded as extreme. It could hardly be contended that print- ing a treasonable pamphlet was not an offence against the statute of Edw. 3, because printing was not invented until a century after it was passed ; or that it would not be treason to shoot the Queen with a pistol, or poison her with an Ameri- can drug (e). The 55 Geo. 3, c. 58, s. 2, which enacts that no brewer or dealer in beer shall have, or put into beer, any liquor for darkening its color, or use molasses or any prepara- tion in lieu of malt and hops, under a penalty of 2001., was held not to be confined to such dealers as were known at the time when the Act was passed, viz., licensed victuallers, licensed by a magistrate under the Act of 5 & 6 Edw. 6, c. 25 ; but to include the retailer of beer furnished with an excise license, who first came into legal existence under the 1 Win. (a) 7 Geo. 2, c. 8, repealed by 23 to same, and Coni'th v. Howe, 144 Vict. c. 28 ; Henderson v. Bise, 3 Mass. 144, there cited. In Com'tli Stark. 158; "Wells v. Porter, 2 v. "Wells, supra, the construction Bing. N. C. 722; comp. Smith v. excluding primary elections was Lindo, 5 C. B. N. S. 587, 27 L. J. confirmed by reference to the 196. object of the enactments, and the (b) Hewitt v.Price, 4 31, & Gr. context thereof; and it was said 355. that the act of 1881, regulating and 53 Griffiths v. Sears, 112 Pa. St. punishing frauds in primary elec- 523. tions did not bring the latter within 64 Ibid. ; McCormick v. Nichols, the purview of the act of 1839. 19 111. App. 334; and see ante, Comp. post, § 338, Britt v. Robin- § 138. son, L. R. 5 C. P. 503. 65 Com'th v. Wells, 110 Pa. St. (c) Hallain, Const. Hist. c. 15. 463. See ante. § 100, and note 182 -I'M -I RIOT CONSTE1 I I [ON. [§ 336 1. c. 64 (a). The 8 Anne, c. 7, which enacted that if any sort of prohibited goods should be landed without payment of duty, the offender should forfeit treble value, was held r<> extend to gloves, which were not prohibited until the 6 Geo. 3 (b). A market Act which prohibited the sale of provisions in any part of the town but the market place, would extend to parts of the town built after the Act was passed on what were then fields (c). It was held that the 8 Geo. 2, c. 13, which imposed a penalty for piratically engraving, etching, or otherwise, or " in any other manner," copying prints and engravings, applied to copying by pho- tography, though that process was not invented till more than a century after the Act was passed (d) Bicycles'were held to be carriages within the provision of the Highway Act against furious driving, and tricycles propelled by steam to be locomotives within the Locomotive Act of 1865, though not invented when those Acts were passed (TUl< 1I"N. 4G5 was idle and insensible without such an interpolation (a). The5& G W. 4, c. 63, s. 28, which empowered inspectors to- examine " weights, measures, and scales," in simps, and if upon examination it appeared that "the said weights oi measures" (omitting scales) were light or unjust, to sciz< them, was held not to authorize a seizure of scales (&).- [So, acts for testing weights and measures and imposing a penalty for "selling" with unmarked weights and measures, will not apply to " buying " with such weight or measures. 68 ] The Municipal Corporations Act of William 4, after empowering the borough justices to appoint a clerk to the justices, provided that it should not be lawful to appoint to that office any alderman or councillor, and provided that the clerk should not prosecute any offender committed for trial, enacted that any person " being an alderman or councillor " who should act as clerk to the justices, or "shall otherwise offend in the premises," should forfeit 100/., recoverable by action. This clearly did not reach a clerk who prosecuted offenders committed by the justices, if he was not an alder- man or councillor ; and yet the manifest intention seemed to be that he should be subject to the penalty for either or both offences, of acting if disqualified, and of prosecuting. But to effectuate this intention, it would have been necessary to interpolate the words ''any other person who" before '• shall otherwise offend ;" and this the Court refused to do lor the purpose of bringing a person within the penal enact- ment (c) ; though also relieving him from indictment (d). So, the Court refused to supply a casus omissus under the Vaccination Act of 1871, as it was an enactment creating an. offence (e). If the statutes, in these cases, had been reme- dial, the omission would probably have been supplied (/). (a) Underbill v. Lon 'T !37. Qualifications of Rule of Strict Construction. Modern Ten- dency.— The rule of strict construction, however, whenever invoked, comes attended with qualifications and other rules no less important ; and it is by the light which each contributes that the meaning must In- determined (a). Amongthem is the rnle that that sense of the words is to be adopted which best harmonizes with the context, and promotes in the fullest, manner the policy and objeol of the Legislature. 87 [It is said that words descriptive of an offence or its punishment, arc not to be bent on the one side or the other." They are to be construed by reference to the subject-matter, 1 ' and the context, the apparent policy and objects of the Legislature;" by the whole context, not by a mere division into sections, so as to give effect to the objects and intent of the whole, 81 is well as by a comparison of statutes in pari materia, 62 and consequently, the old law, the mischief and the remedy. 93 ] The paramount object, in construing penal as well as other statutes, is to ascertain the legislative intent ; and the rule of strict construction is not violated by permitting the words to have their full meaning, or the more extensive of two meanings, when best effectuating the intention (b). They are. indeed, frequently taken [not in their strict technical sense, if that would defeat, but in a more popular sense, if that will uphold, and carry out, the intention of the Legislature, 01 but] in the widest sense, sometimes even in a sense more wide than etymologically belongs or is popularly attached to them, in order to carry out effectually the legis- lative intent, or, to use Lord Coke's words, to suppress the mischief and advance the remedy (c). [Nor is the rule of strict construction ever violated by permitting the words of a statute to have their full meaning," or by the application (a) Per cur. in XJ. S. v. Hartwell, (b) U. S. v. Hartwell, 6 Wall. 6 Wallace, 385, 395. 385, 395. (An.l sec Morekead v. n [bid. B'k, 41 N. J. Eq. 664.] Mayor v. Davis, 6 Watts & S. M See U. S. v. Alliens Armory, Pa.) 269, 277, per Gibson, C. J. ^ Al)t>. U. S. 129, where "prize" 59 Ibid. ; Com'tb v. Loring, 8 and " capture " were held not con- Pick (Mass.) 370, 373; R. v. Hod- fined to captures at sea. nett, 1 T. R. 96. (c) Heydou's Case. 3 Rep. 7b. » Pike v. Jenkins, 12 N. II. 255. [And see Parkinson v. State, 14 si The Harriet, 1 Story, 251. M<1. L84.] '■-' Mayor v. Davis, supra. 65 State v. Powers, 36 Conn. 77. See [bid.; ante, § 28. <; 337] STRICT CONSTRUCTION. 467 of common sense to its terms, in order to avoid an absurdity." They are, therefore, to be held to embrace every case within the mischief, if also fairly within the words 87 read with such corrections as the court may make to avoid insensibility. 69 To illustrate :] under the Statute which makes it a misdemeanor knowingly to utter counterfeit coin is included a genuine coin from which the milling has been filed and replaced by another (a). Although the Act which punishes a man for running away from his wife and " children," thereby leaving them chargeable to the parish, applies only to the desertion of legitimate children, this rests, not on any indisposition to depart from the strict and narrow meaning of the word, but on the ground that the object of the Legislature was limited to the enforcement of the man's legal obligation, which did not extend to the support of his illegitimate children (b). But the statute which made it a criminal offence to take an unmarried girl from the possession and against the will of her father or mother, was held to apply to the case of a natural daughter taken from her putative father (e) ; for the wider construction obviously carried out more fully the aim and policy of the enactment. The " taking from the possession," again, in the same enactment, is construed in the widest sense, implying neither actual nor constructive force, and extending to voluntary and temporary elopements made with the active concurrence of the girl (d). The " breaking " required to constitute burglary includes acts which would not be so designed in popular language ; such as lifting the flap of a cellar ( Ala. 281.] Lord Hale, (d) R. v. Williams, 1 Cox, lit. who doubted whether the latter act (c) R. v. Grimwade, 1 Den. 30; was a breaking, was relieved from and sec R. v. .Jones, 1 Cox, 67 ;5 deciding the point in the case Cox, 226. before him, as it. was elicited that (/) II. v. Hadfield, L. R. 1 C. C. some bricks had been loosened in 253 ; R. v. Hardy. Id. 278; comp. the duel's descent, which sufficed Walker v. Horner, 1 Q. B. D. I. to constitute a breaking: I Hale, (g) R. v. Bradford. Bell, 268. a./-'. Indeed, the burglar "breaks" [Comp. Lee v. Barkhampsted, 46 into a house if he gets admittance Conn. 213, ante, s ?:!. | by inducing the inmate to open the (A) Redgate v. Haynes, 1 Q. B. door by a trick, as by a pretence I). 8!). of business, or by raising an alarm (i) R. v. Wilson, 1). & B. 127, of fire : 2 East. P. C. 485. [See, 26 L. J. M. C. 16 ; R. v. Farrow, hdwever, State v. Henry, Ired. D. & B. 164. L. (N. C.) 4«:J.J 0')R. v. Hillman, L. & C. 343, « 338] STRICT CONSTRUCTION. 469 An Act which prohibited under a penalty " the copying of a painting " without the owner's leave was held to reach a photograph of an engraving which the proprietor of the painting had made from it (a). The adulteration Act, 1875, which makes it penal to sell an adulterated article "to the prejudice of the purchaser," would include a sale to an officer who makes the purchase, not with his own money or for his own use, but with the public money and for the pur- pose of analysis (b). A man who tires from a highway at game, has trespassed on the land of the owner of the soil on which the highway runs; for the right of way over the road is only an easement, and if a man uses it for an unlawful purpose, he becomes a trespasser (.\>1UUCTI0N. [§338 whose partner bad, with knowledge of the facts, sold a bed- stead to the relieving officer on behalf of the parish for delivery to a pauper; although the guardian war- ignorantof the transaction, the bedstead had not been "ordered" by the guardians («), and it was only lent, not "given" in parochial relief (b). In another, the occupier of an enclosed ground, who admitted the public on it, on payment, to wit- ness a toot-race and a pigeon-match, was held liable to con- viction for having used the place for the purposes of betting, as a number of professional betting men had obtained entrance and carried on their business there with his knowledge ; though this was not the immediate purpose for which he had thrown the grounds open, and it did not appear that he and the betting men were in any way con- nected in their business, or that he derived any profit Prom it (e). The Highway Act of Will. 4, which enacted that if any person (1) riding a horse, or (2) driving a carriage, rode or drove furiously, " every person so offending" should be liable on conviction before a magistrate to forfeit live pounds, if " the driver " was not the owner of the carriage, and ten pounds if " the driver " was the owner (not men- tioning the rider), was construed as making the rider, who was not the owner of the horse, as well as the driver, liable ; as providing, in other words, that while the owner of a car- riage was liable to a penalty of ten pounds, the offender in all the other cases mentioned was liable to live pounds (d). An Act which punished the obtaining a" valuable security " by false pretences would include a railway ticket, which is evidence of a right of being carried on the railway (. Sheil, -t (c) Harrod v. Worship, 1 B. & S. Ch 1) 789 381, 30 I-. -I. ML C. 165; diss. 1 Hale, 191; 3 Dyer, 326 b. Wightman, J. See, also, Wells v. Com Dig Pari R 20. London & Tilbury R. Co., 5 Ch. om'tli v. Sylvester, 13 Allen D. 126; Yarmouth v. Simmons, lb Mass.) 247. A similar considera- Ch. D. 51b. § 341 | STRICT CONSTRUCTION. 473 eral terms used, it was not to be inferred that the Legislature contemplated such an interference with the rights of prop- erty as would have resulted from construing the words as creating aright of way. The Partnership Law Amendment Act. of 1865, which provides that when a loan to a trader bore interest varying with the profits of the trade, the lender shall not, if the trader becomes bankrupt, " recover" his principal until the claims of the other creditors are satis- fied, did not deprive the creditor of any rights acquired by mortgage. Though he could not recover, he was entitled to retain (a). § 341. Common Law Rights of Persons and Property. — [Iho presumption against an intention to change the existing law, 71 and against an intention to encroach upon the personal and property rights of individuals would seem to afford the rational basis and limitation of the rule requiring a strict construction of statutes which are in derogation of the com- mon law, so far as that rule has any legitimate force or ap- lication. 78 Whatever rights the individual member of a society recognizing the common law possesses, are secured to him either by virtue of express grant, or by that more nearly natural right whose principles are embodied in the common law. So far as the former is concerned, the rule applies that enactments should not be construed so as to in- terfere with rights previously granted by the Legislature, if susceptible of a fair construction consistent with such rights. 73 The rights a man has by common law stand at least upon as high a plane of sanctity, and the same rule must govern the construction of statutes as regards an intention to encroach upon them. Thus, concerning personal rights, it is well settled, that a strict construction is to be given to any statute excluding a citizen from giving evidence ; 74 requiring a " suitor's test or.th " from him, in order to entitle him to become a plaintiff in a court of justice ; 75 disabling, for any (a) Exp. Sbeil, 4 Cb. D. 789. 14 Pelbam v. Messenger, 10 La. 11 See ante, £$ 113 et seqq. An. 99. '- Comp. ante, §§ 128, 129, and ' 3 Harrison v. Leach, 4 W. Va. post, § 348. 383 (requiring certainty to a certain 73 McAfee v. R. R. Co., 36 Miss, intent in every particular). Comp. 6G9. Harrison v. Smith, Id. 97 (where 4 74 -I BICT CONSTRUCTION. [§ 3±2 &> cause, a person of full age and sound mind to make con tracts ; 76 prohibiting certain county officers from purchasing on behalf of any hut the county, any tax certificates, etc., held by the county, and declaring void a deed issued in vio lation of the act ;" or prohibiting attorneys from buying any bond, etc, with the purpose of suing thereon.' 9 § 342. [And again, as concerns property rights, the same rule of construction lias been applied to statutes regulating™ or restraining trade or the alienation of property, 80 or pre- scribing the manner in which a man shall use his own prop- erty, or build on his own land ; 81 or an act giving the port- wardens the exclusive right to survey vessels unfit to go to >ea. and decide upon the repairs necessary. 88 So, an act for- bidding preferences in assignments for the benefit of creditors was construed as avoiding only preferences attempted to be given in the instrument of assignment, not preferences by any mode outside of it, as by judgment, or transfer of property, mortgage, or the like ; 8S and an act forbidding bequests to charities within one month of the testator's death, was held not to affect a fully executed and completed gift of personalty made within one month of the donor's it was hold that the oath by one co-plaintiff was sufficient to quali- fy all) ; Pendleton v. Barton, Id. 496 (deciding that the party insist- ing on the act must first take the oath). 16 Smith v. Spoouer, 3 Pick. (Mass.) 229. " Coleman v. Hart, 37 Wis. 180; so that such an act ought not to be construed as prohibiting such officers from buying such eerliri- cates from another than the county, and having a deed issued thereon. " 8 Ramsey v. Gould, 57 Barb. (N. Y.) 398. But it is said that statutes imposing disabilities for purposes of protection, e. p., in the case of Indians, are not subject to the rule of strict construction •where such would defeat the object of :1m- Legislature: Doe v. A-valine, 8 Ind. 0. Hence, one will be deemed as within the pro- tin ion of such a statute who is recognized as an Indian by the community, by the Indians them- selves, by sta'e and federal author- ities, and stamped as such by birth, education, and language, although he have but 3-8 Indian blood: Ibid. The same principle of liberal con- struction is, in that case, said to be applied to acts conditionally, pro- hibiting purchases from Indians, cit. Jackson v. Ingraham, 4 Johns. (N. Y.) 1(13; Jackson v. Waters, 12 Id. 365; Goodcll v. Jackson, 20 Id. 693 ; De Armas v. Major, 5 Mill (La.) 132; Baltimore v. McKim, 3 Bland (Md.) 455. • 9 Mayor v. Davis, 6 Watts & S. (Pa.) 269. i0 Richardson v. Enswiler, 14 La. An. 658 ; Sewall v. Jones, 9 Pick. (Mass.) 412. si Morris v. B:\lderst on, 2 Brewst. (Pa.) 459 ; Stiel v. Sunder- land, 6 II. &N. 796. 82 Portwardens v. Cartwright, 4 Sandf. (N. Y.) 236. ss York Co. B'k v. Carter. 38 Pa, St. 446, and see Wiener V. Davis, 18 Id. 331 ; also ante. §§ 144, 145. § 343] STRICT CONSTRUCTION. 475 death. 84 Nor was an act prohibiting tne reservation of ground -rents, not perpetual in their inception, but to become so upon the vendee's failure to comply with a covenant or condition in the deed, deemed applicable to a deed which reserved a perpetual ground-rent, with an option of pay- ment within a certain time by the vendee." § 343. [A fortiori must the rule apply to statute- permit- ing the taking of the property of individuals for public- purposes;* as by way of condemnation of private land for such a purpose, 87 e. ' White v. Ivey, 34 Ga, 186. (Tenn.) 320. 470 STRICT CONSTRUCTION. [§ 344 ground, it would seem, Statutes of Limitation are to bo con- strued strictly. There may not necessarily be any moral wrong in setting up the defence of lapse of time, but it is tbe creature of positive law, and is not to be extended to eases which are not strictly within the enactment, [and therefore not to be extended to cases not within their words, though possibly within their reason, 98 nor to be construed most pre- judicially to the right they limit ;" | while provisions which give exceptions to the operation of such enactments are to be construed liberally («). [Although such statutes, being founded on sound policy, so far as they are statutes of repose, are not to be evaded by construction, 100 and con- sequently, though in terms applicable only to actions, apply to all claims that may be the subject of actions, however presented, fallingwithin their intended operation,"" yet they cannot be made to apply to a cause of action not embraced within their intention by presenting it in a form of action to which, in terms it is made applicable, the nature of the cause of action, not the form, determining the applicability of the statutes. 10 ' § 344. summary Proceedings.— [To the presumption against an intention to affect common law rights, both of property and persons, the rule requiring strict construction of statutes authorizing summary proceedings seems, at least in part, properly referable. 103 To this class of statutes belong those authorizing attachments, 104 so as to require strict compliance with the act, in all its details, concerning the bond to be Bedell v. Janney, 9 111. 193; l ° 3 DeHaven v. Bartholomew, .".7 Garland v. Scott. 15 La. An. 143; Pa. St. 126. and Bee Delaware, etc., R. R. Co., » 03 Comp. ante. g§ 158, 262. v. Unison, 61 Pa. St. 369. m Wilkiev. Jones. 1 Morr. (la.) •Elder v. Bradley, 2 Sneed 971; Musgrave v. Brady. Id. 456. (Tenn.) 247. In Steamboat Ohio v. St mil. In (a) See the Judgment of Lord Ohio St. 082, it was saicl that stat- Cranworto in Roddam v. Morley, utes providing for tbe collect ion of 1 DeG. & •!. 1, 26 L. J. Ch. 4H8. claims by a summary proceeding | Comp. $350, note. | against property by its seizure or 100 rioberts v. Pillow, llempst. attachment musl be construed as 624; McCarthy v. White. 21 Gal. simply providing a remedy for the 195; Phillips v. Pope, 10 15. Mon. enforcement of liabilities, not as (Ky.) 103; Dickenson v. McCarny, creating new liabilities upon the g Ga. -1st;. owner of property, not arising at 101 Hart's App., 32 Conn. 520. common law. \ § 344] STRICT CONSTRUCTION. 477 given before the attachment can issue, 10 ' and the like ; sales by a constable on a landlord's warrant, 108 or an arrest without direct charge of guilt; 107 or the entry of judgment against a defendant, without trial by jury, for want of an affidavit of defence; 108 or the entry of judgment, without any proceed ings affording the defendant a hearing, on premium not< given to an insurance company, in which he is a policy- holder. 100 So, under an act authorizing the court of common pleas to mark judgments satisfied on proof of payment, it was held that it was necessary, in order to warrant the exercise of this jurisdiction, to show actual payment in full. an allegation of set-off to the full amount of the judgment remaining unpaid not being-sufficient ; 110 and that a mechanic-' lien did not at all fall under the operation of its provisions. 11 Again, where an act provided, that, in all cases of leases or verbal letting of property for a term of years, or from year to year, in which the landlord had lost the lease or evidence of the beginning and conclusion of the term, and could not produce proof of the same, he might give the tenant notice, in writing, to furnish him, within thirty days, with the dare at which his term of tenancy began, and upon refusal of the tenant to do so, might, at the expiration of thirty days, give the tenant three months' notice to quit, and thereafter proceed summarily before a justice to have him ejected ; it was held that the act must be strictly construed and confined to the precise case contemplated by the act, — that the inquisition of the magistrate must exhibit, and, of course, proof be laid before him of, every fact which the act made necessary to the jurisdiction, — that the act applied only in cases of tenan- cies created by lease which fixed a term and rent, — that it must appear that there was a tenancy for years or from year to year,— and that the first year of the term, or the term itself, was ended. 113 And similarly, it was held that a distress 105 Blake v. Sherman, 12 Minn. no Kiddle's App., 104 Pa. Si. 420. 171. 10 « Murphy v. Chase, 103 Pa. St. 11! State v. McCullough, 107 Pa. 260. St. 39. '°- State v. Dale, 3 Wis. 795. "'-' MeCullen v. McCreary, 5 t Pa. 108 Wall v. Dovey, GO Pa. St. St. 230. See, also. Logwood v oi : . llunisville. Miner (Ala.) 23 ; Hale 109 Barker v. Beeber, 112 Pa. St. v. Burton, Dudley (Ga.) 105. 2i(j. Coaip. Lynde v. Noble. 20 Johns.. 47S 8TEIC1 CONSTRUCTION. [§ 345 warrant which the auditor was authorized by statute to issue for the collection of a balance found due on the settlement of a revenue collector's accounts, being a special and sum- mary jurisdiction, could only be issued with promptness and in strict conformity with the statute. 113 ] § 345. Acts Imposing Burdens. — Statutes [which require gratuitous services of any class of citizens, 114 or] which impose pecuniary burdens, also, are subject to the rule of strict construction. It is a well settled rule of law that all charges upon the subject must be imposed by clear and unambiguous language, because in some degree they operate as penalties (a). The subject is not to be taxed unless the language of the statute clearly imposes the obligation (h); [for taxes are not imposed by implication. 11 "] in a case of doubt the construction most beneticial to the subject is to be adopted ('» Webb v. Baird, 6 Ind. 13. Pa. St. 21, ~>r>. (a) J'>r Bayley, J., in Denn v. (c) Per Lord Lvndhurst in Diamond, 4 B. & ( '. ",' Ci ; per Park, Stockton R. Co. v. Barrett, 11 CI. J., in Doe v. Snaith, 8 Bing. 152; & F. 002; per Parke, B.. in Re Partington v. Atty.-Genl. L. B. 4 Micklewaite, 11 Ex.456, 25 L. .1. II. L. lui); lies v. West Ham 19. Union, 8 Q. B. D. 69. (-i>ce ; it was held that a publication, tin' main object of which was to give news, but which was published at intervals of more than twenty-six days, was not liable to the stamp duty as a newspaper (a). An Act which imposes a stamp duty on '"every charter party, or memorandum, or other writing between the captain or owner of a vessel and any other person, relating to the freight or conveyance of goods on board," does not extend to a guarantee for the due perform- ance of a charter party (b). And yet, where an Act, after imposing a stamp on contracts, exempted those which were made relative to the sale of goods, a guarantee for the pay- ment of the price on such a sale was held included in the exemption (c 1 ); the same words being susceptible of meaning different things when used to impose a tax, or to exonerate from it (d). Lord Ellenborough remarked that the cases to which a duty attached ought to be fairly marked out, and that a liberal construction ought to be given to words of exception confining the operation of the duty (c); [whilst the taxing provisions arc to be construed most strongly against the Government, and in favor of the person subjected to the imposition, and not to be extended by implication beyond the clear import of the language used." 9 The exercise of the taxing power by the Legislature being strictly construed, it would follow, as a matter of course, that a delegation of (a) Atty.Gen'l. v. Bradbury, 7 Wr. L., § 195. Ami see City of Ex. 97, 21 J,. J. 12. Titusville's App., 108 Pa. St. 600, (b) 5 & 6 Vict. c. 79; Rein v. where, under an act making taxes Lane, L. R. 2. Q. B. 144. liens on real estate and giving Ihcm (c) Warrington v. Furbor, 8 East, priority over mortgages thereon. 242. and also directing an addition of a ((/) Per Blackburn, J., L. R. 2 certain percentage to the taxes, for Q. B. 151, citingCurry v. Edensor, non-paymenl before a certain day, 3 T. R. 527, and Warrington v. it was held that this penalty Furbor, ubi sup. See, also, Armitage becomes part of the tax, and is v. Williamson. ;! App. 355. entitled to the same priority with 116 U. S. v. Wigglesworth, 2Story, it. See aute, § 331, Coni'th y. 369. Compare, however, Cornwall Stand. Oil Co., 'lOl Pa. St. 119. v. Todd, 38 Conn. 443, ami Bish., -t v " STRICJ < 0NS1 Kl CflON. | § .'! l(» that power to an inferior branch of the government, e. (/., a municipality, must be in clear and unequivocal terms. 117 ] § 346. At the same time. Acts imposing such burdens, like penal Acts, are not to be so construed as to furnish a chance of escape and a means of evasion (a). Indeed, as in criminal statutes, the widest meaning is given to the lang- uage when needful to effectuate the intention of the Leeisla- ture. For instance, in one of the Church Building Acts, which enacted that the " repairs " of district churches might be provided for by a rate on the district, the word " repairs " was construed as comprising not only reparation of the structure but all incidental matters accessary for the due performance of service, such as lighting, cleaning, stationery, and organist's salary (b). In America, revenue laws are not regarded as penal laws in the sense that requires them to be construed with strictness in favor of the defendant. They are regarded rather in their remedial character ; as intended to prevent fraud, suppress public wrong and promote the public good ; and are so construed as most effectually to ac- complish those objects (c) ; [and this, though they impose penalties and forfeitures for their violation and frauds com- mitted against them. 118 Indeed, it has been held, that such statutes are to be liberally construed, so as to bring under their operation as well that which is within their meaning as that which is within their letter. 113 But, on the other hand, it is said that revenue and duty acts are to be classed neither as remedial nor as penal, but are to be construed ac- cording to their true meaning and import ; 120 that they are not to be extended beyond the clear import of the words 111 See post, S§ 352 ct. seq. of Coal, 6 Biss. 379; U. S. v. Olney, (a) U. S. v. Thirty-six barrels of 1 Abb. U. S. 875; Twenty-eighl wine, 7 Blatchf . 459. Cases, 2 Ben. 63; U. S. v. Cases (J)R. v. Consistory Court, 2 B. of Cloths, Crabbe 356; U. S. v. & S 339, 31 L. J. Q. B. L06. See Athens Armory, 35 Ga. 344.] R. v. Warwick. 8 <^. 1>. 920, sup. 118 Sec cases iu preceding note § 103. and infra. (c) piiquot's Champagne, <3 " ,J U. S. v. Hodson, 10 Wall Wall ade, 145. [See, to same effect: 395. Taylor v. U. S., 3 How. 197; U. S. m Daw v. Morgan, 56 Barb. v. Barrels of Spirits, 2 Abb. U. S. (N. Y.) 218. But sen Crosby V. 305; U. S. v. Willetts, 5 Ben. 219; Brown, 60 Id. 548, where a strict l'. S. v. Barrels of High Wines, 7 construction was applied. Blatchf. 459; U. S. v. Three Tons £;147j STRICT CONSTRUCTION. 'IS. used, nor their scope enlarged by legal fiction to include matters not within the same ; 12 ' that, in cases of substantial ambiguity or doubtful classification, the construction should favor the importer, duties not being imposed by vague or doubtful interpretation.' 23 And it has been decided that law prohibiting liquor selling without license, and imposing a penalty upon its violation, should not be treated as a mere revenue law, but as a law for the prevention of offence^. The proper rule probably is, as pointed out by an eminent writer, 124 that, in the accomplishment of their primary object, the mere collection of duties, proportionate contributions to the public burden, these enactments are not to be construed with the rigid strictness applicable to penal laws ; 12B but that, so far as they create crimes, they require the strict construc- tion of such laws, and as to forfeitures and penalties recov- erable in civil actions, a stringency equal to that applied to laws giving punitive damages. But it is intimated, that the tendency of later cases is to construe revenue laws, even as to such provisions, " liberally, not in the extreme sense, yet not strictly but in a sort of equipoise between the two interpretations." 12 "] § 347. Acts Allowing Costs.— It is said that all statutes which give costs are to be construed strictly, on the ground that costs are a kind of penalty (a) [and mere creatures of statutes, unknown to the common law. 127 ] There is little authority in support of the proposition. On the other hand, the power of ordering the payment of costs has been sometimes construed on the principle of beneficial and liberal construction ; as where, for instance, they have been imposed 121 U. S. v. Watts, 1 Bond, 580. 125. 122 Powers v. Barney, 5 Blsitchf. 12 « Ibid. 20 ~,:. ,„ , „ (a) Com. v. Bowles, 1 Salk. 205 ;. '-Campbell v. State, 40 Ala. [Dent v. State, 42 Ala. 514.1 See UG; Lilk'iistme v. State, Id. 498 ; per Mellor, J., in Cobb v Mid- and consequently not within a Wales R. Co., L. R. 1 Q. B. 351 general repeal of revenue laws : [In Powers v. Wright, 62 Miss.' Ibid. See, also, Mulvey v. Slate, 35, it is said that acts giving the -4:} Id. 316. And an inspection jury the right to find damages, law was declared to be penal in actual or vindictive against °tbe Com'th v. Giltinan, 04 Pa. St. 100. plainliu" arc penal as to him 1 !" 4 ! ! , isll -,v Wr - L '; § 195 - m Bisu - wr. L., $ 195a, cil m Cat. L. S. v. Buzzo, 18 Wall, Stale v. Kiune, 41 X. H~ 238, Sec- ;.{1 Addenda. t82 STBICT CONSTRUCTION. [§ 348 on persons who were strangers to an action of ejectment, hut at whose instance it was brought or defended (a). $ 348. Acts Regulating Form and Execution of Contracts.— Enactments, also, which impose forms and solemnities on contracts on pain of invalidity, arc construed strictly, so as to be as little restrictive as possihle of the natural liberty ol contracting. It was in allusion to the Statute of Frauds that Lord Nottingham said that all Acts which restrain the common law, that is, apparently, which impose restrictions unknown to the common law, ought themselves to be restrained in exposition (b). [The statutes of frauds, which in order to the validity and suableness of specified contracts, required certain memoranda, in writing, signed or subscribed by the parties, or by the party to be charged, have given rise to many decisions apparently in this spirit. 1 * 8 It has been said that the cases have gone very far in putting the correspondence of parties together, to constitute a memoran- dum to satisfy the statute (e). Indeed, as it becomes necessary, in such a case, to inquire what the contract really was, in order to determine whether the informal papers constitute a written note of it, it may be said that the very evil is let in against which the statute aimed (<7). A letter from the purchaser addressed to a third person, stating the terms of the contract {e), and one from the purchaser to the seller, which after setting forth its terms repudiated the contract, have been held sufficient notes or memoranda of the bargain to satisfy the statute (/'). So, although it is (a) Hutchinson v. Greenwood, 4 worth, 1 H. & C. 83, 31 L.J. Ex. E & B. 324 ; Mobbs v. Van. leu- 448; Monis v. Wilson, 5 Jur. N. brande, 4 B. & S. 904; :;:: I.. J. Q. S. 168; Crane v. Powell, L. 11. 4 B. 17T ; comp. Evans v. Rees, 2 Q. ('. P. 123; Bonnewell v. Jenkins, B. 334; Anstey v. Edwards, 15 C. 8 Ch. 1). 70; Commins v. Scott, B. 212; Hayward v. Gifford, 4 M. L. R. 20 Eq. 11; Kronheim v. & W. 194. See, also, 1!. v. Pern- Johnson, 7 Ch. 1). 60, 47 L. J. bridge, 3 Q. B. 901, sup. § 29. 132; Beckworth v. Talbot, 95 (b) Ash v. A Inly, 3 Swanst, 664. U. S. 289. See Ridgway v. War- 128 See :! Pars. Contr.. Ch. v. pp. ton, cited in Jones v. Victoria Dock :i-67. Co., 2Q. B. I). 314. (c) Per Pollock, C. B., in McLean (d) Per Channell, B., Ibid. See v. JMicoll, 7 Jur. N. S. 999. See, ex. gr. Rishton v. Whatraore, 8 e. (/.. Shortrede v. Cheek, 1 A. & Ch. 1). 467, 47 L. J. 029. E. 57 ; Boydell v. Drummond, 11 (0 Gibson v. Holland, L. R. 1 C. East, L42; Dobell v. Hutchinson, P. 1. Sugd. V. & P. 113, 13th ed. 3 A. & E. 355; Watts v. Ains- (/) Bailey v. Sweeting, 9 C. B. ■§ 348] STRICT CONSTRUCTION. 483 necessary that the parties to the contract should be sufficiently described to admit of their identification (/(), it is not necessary that they should be described by name. It has been held, for instance, that a contract of sale signed by the auctioneer, as "the agent of the proprietor," or of "the trustee for the sale" of the property sold, sufficiently described the seller (b) ; though a contract similarly " signed by the agent of the vendor" would not suffice (c) ; for a mere assertion that the person who sells is the seller, is obviously not a description of the seller, nor tends to his identification. Again, as regards the signing or subscribing an instrument as party or witness, the enactments which require these formalities have been construed with similar indulgence. The testator who wrote his will with his own hand, and began by declaring that it was his will, setting forth his name, was deemed to have thereby sufficiently "signed " his will (d) ; and an attesting witness who wrote his name on the will, elsewhere than at the end of it, was deemed to have sufficiently " subscribed " it, within the Statute of Frauds (e). [So, under an act requiring wills to be signed at the end thereof, it was held that this meant at the end of the obviously inherent sense, though it might not be at the end in point of space. 129 Hence, where a will was written on the first and third pages of a sheet of paper, and signed at the end of the third page, the body of the will containing an erasure, explained by a reference, in the words " See next page," to something more on the fourth page, it was held that this was to be read as part of the will. 130 ] An agreement. N. S. K43, 30 L. J. 150 ; Wilkinson (c) Potter v. Duffleld, L. R. 18 v. Evans. L. It. 1 C. P. 407, dubit. Eq. 4; Thomas v. Brown, 1 Q. B. Cockbum, C. J., in Smith v. Hud- I). 714. son, 34 L. J. Q. B. 149, 6 B. & 8." (d) 29 Car. 2, c. 3, s. 5 ; Lemane 431 ; Buxton v. Rust, L. R. 7 Ex. v. Stanley, 3 Lev. 1. 1, 279. (c) Roberts v. Phillips, 4 E. & {a) Charlewood v. Bedford. 1 B. 450; 24 L. J. 171. [And see, on Atk. 495 : Champion v. Plummer, this subject, 1 Jarman, Wills, (5th 1 N. R. 252 ; Williams v. Lake, 2 Am. Ed.) Ch. vi. ; 2 Id., no. 703 E. & E. 349, 29 L. J. Q. B. 1. et seqq.l (6) Sale v. Lambert. L. R. 18 m Baker's App'., 107 Pa. St 381. Eq. 1 ; Catling v. Kino-, 5 Ch. D. 1:; ° Ibid. But under a statutory 0(!0 : Rossiter v. Miller, 3 App. requirement that a memorandum 1124, 48 L. J. Ch. 10. of sale shall be "subscribed." it 4S4 6TBI0T CONSTRUCTION. [§ M& too, has been held to he sufficiently signed by a corporate body, within the meaning of the Statute of Frauds, where a resolution ordering its engrossment and execution was passed by the body and signed by the chairman (a). [And where an act directed that "all contracts on account of the state prison shall be made with the warden, and when approved by the inspectors, shall be binding in law," it was held that a contract need not be in writing ; and that the approval of the inspectors might be implied from acts,. and need not be given by an express vote, nor appear on the records. 131 The broad indulgence with which such statutes are construed in favor of the validity of instruments coming under their operation, is but the correlative, and implies a corresponding degree of strictness in the construction of their restraining provisions. Thus, where an act prescribed that the will of a married woman should be executed in the presence of two disinterested and credible witnesses, it was held that the witnesses need not be subscribing witnesses. 139 ] § 349. Acts Creating Monopolies, etc. — Acts which establish monopolies (b), or confer exceptional exemptions and privileges, correlatively trenching on general rights, are- subject to the same principle of strict construction (c). [As to statutes creating monopolies, this is especial!} 7 so, where they are in restraint of trade and against public con- venience and improvement. 133 The rule applies to the grant of an exclusive right to build, and maintain, etc., toll bridges; 13 * so that the provision that no " bridge " should be built within a mile of the toll-bridge provided by the charter, was held not to forbid the building of a railway viaduct; 135 and the was held not enough that the sig- (b) Per Lord Campbell in Read nature of the party to be charged v. Ingham, 3 E. & 15. 899, 23 L. J. appeared in the midst, of the list 156 ; Direct U. S. Cable Co. v. of articles, the subjects of the Anglo-Am. Co., 2 App. 394. sale: McGivern v. Flemming, 12 [Westfall v. Mapes, 3 Grant (Pa.). Daly (N. Y.) 289. And see Coon 108.] v. Rigden, 4 Col. 276. (c) See ex. gr. R. v. Hall Dock (a) Jones v. Victoria Dock Co., Co., 3 11. & ('. .-)l(i. Brunskillv. 2Q. B. 1). 314. [See Field, Priv. Watson, L. R. :i Q.B. 418. Corp., | 247.] ]S3 Westfall v. Mapes, supra. 1:1 Austin v. Foster, 9 Pick. ls4 See Bridge Co. v. R. K. Co., (Mass.):! II. 13 N. J. Eq'. 81; 1 Wall. 11G;: 13i Combs' App., 103 Pa. St. Lake v. H. R. Co., 7 Nev. 294. 155. See ante, § 20, note 93. I35 Cases in preceding note. See- § 350] STRICT CONSTRUCTION. 485 grant of aright to build a macadamized road and charge toll thereon, so that such a grant would not confer the latter power until all the terms of the statute were complied with and the road completed. ,38 And where an act passed in 1867 authorized a borough to construct public water works, the building of them to be submitted and postponed to a popular vote, and an act passed in 1874, which was accepted by a private water company chartered in 1860 to supply the borough with water, provided, that, within the district or locality covered by its charter, the right of such a company incorporated under, or accepting, that act, to enjoj' its fran- chises and privileges should be u an exclusive one," the right of the water company was held to be exclusive only as against other private water companies, not as against the borough. 137 ^ 350. Acts Creating Exceptions from Recognized Liabilities, .etc.— [The same rule applies to the construction of statutes creating exceptions or exemptions from recognized liabilities.] The enactment, for instance, that ship-owners should not be liable for damage done by their ships without their default, "beyond " the value of the ship'' and its " freight," was held to include, in this value, everything belonging to her owners that was on board for the performance of her adventure, such as the fishing stores of a vessel employed in the Greenland fishery ; although they would not have been covered by a policy on " the ship and freight," and the phrase, " the value of the ship and her appurtenances" had been used ten times in other parts of the Act (a). This decision rested on the ground that the enactment abridged the common law right of the injured person ; and that the ship-owner was not entitled to more than the meaning of the words strictly imported. So, the enactments which exonerate a ship-owner from liability for damage caused by his ship through the default of a compulsorily employed pilot, are restricted to similar construction of the words Binguampton Bridge Case, 3 "bridge," "bridge structure," Wall. 51. ante, § 79. 137 Lebigh Water Co.'s App., 102 136 State v. Curry, 1 Nev. 251. Pa. St. 515. See, also, upon this subject, (a) Gale v. Laurie, 5 B. & C. ■Sedgw., pp. 2U1-292. But compare 15(1 ; Smith v. Kirby, 1 Q. B. D. 131. "Freight:" see Addenda. 4 s.; STEICT CONSTRUCTION. [§350 cases where the pilot was the sole cause of the damage, without any default on the part of the master or crew (a). [As belonging to this class of statutes, falling under the rule of strict construction have been recognized enactments exonerating railroad companies from liability for injury by accident to passengers riding on the platforms of cars;"' exempting portions of debtors' property from liability for their debts; 139 staying civil process against persons enlisting in the army ; 140 or exempting partners from individual liability for partnership debts: 141 so that a person claiming such exemption, e. g., under a limited partnership act, must show that he has strictly complied with its requirements, and that members of a general partnership already engaged in business cannot, by recording a statement in due form, under the Pennsylvania limited partnership act of 2 June, 1874, showing that each partner has subscribed and paid in cash a sum certain, protect themselves against individual liability for the debts of the association subsequently contracted, when, as a matter of fact, no cash has been actually subscribed or paid, but the assets of the firm as originally constituted have simply been allowed to remain in the business.'' 43 To (a) The Protector, 1 W. Rob. 45; The Diana, 4 Moo. P. C. 11 ; The Iona, L. R. 1 P. C. 426. "8 Willis v. 11. 11. Co., 32 Barb. (N. Y.) 398. 139 Rue v. Alter, 5 Denio (X. Y.) 119 ; so as not to exempt, with a " team," its necessary fodder : [bid., and to restrict a homestead exemption in such manner as to exclude from exemption the whole of a block, the character and con- struction of which was for busi- ness purposes, although a part was used as a dwelling : Re Lammer, 7 Biss. 2G9. Compare, however, Cbarless v. Lamberson, 1 Iowa, 435, and ante, $ 103. 140 Breitenbaeh v. Bush, 44 Pa. St. 313 ; so as to give but one stay, to be computed from the lime of original muster, and not to be renewed by re-enlistment : Ibid. So, disabilities saving rights of actioa cannot be tacked to each other, e. g., infancy and coverture: eee Carlisle v. Stitlcr, 1 Pen. & W. (Pa.) 6; Thompson v. Smith, 7 Serg. & 11. (Pa.) 209 ; Rankin v. Tenbrook, G Watts (Pa.) 388; Marplc v. Myers, 12 Pa. St. 122 ; Rider v. Maul, 40 Id. 376. 141 Andrews v. Sehott, 10 Pa. St. 47; Vandike v. Rosskam, 67 Id. 330 ; Maloney v. Bruce, 04 Id. 249 ; Eliot v. Ilimrod, 108 Id. 569; Pierce v. Bryant, 5 Allen (Mass.) 91. Ilimrod, supra, and in preceding note, statutes subjecting in corporations to individual liability for debts of the corporation, and giving remedies for the enforcement of such liabil- ity, are also to be strictly inter- preted and pursued : Mover v. Pa. Mate Co., 71 Pa. St, 293 ; Lane's A pp.. 105 Id. 49; O'Reilly v. Bard, Id. 560. And see, to same effect, Breitung v. Lindauer, 37 Mich. 287. where, in construing an act requiring annual reports of the condition of certain corporations. 142 Eliot v. other cases Conversely, stockholders § :>,50] - I UICT CON8TEDCTION. 487 this category belongs all of that class legislation ;'" so abundant of late, giving liens, preferences, and the like to certain kinds of claims, — as, e. . <& L. L. J. 108; per Cockburn, C. J., 735; R. v. Blues, 5 E. & B. 291, dubit. Mellor, J. See other illus- 24 L. .1. M. C. 138 trations, in the construction of (/) R. v. Pawlett, I.. II. 8 Q. B. the powers given to the railway 491; R. v. Staffordshire, 4 A. & commissioners, Great Western E. 844. R. Co. v. R. Com., 7 Q. B. D. 182; (#) R. v. Beltou, 11 Q. B. 388. Toomer v. London, Ch. & D. R. 490 STRICT CONSTRUCTION. |_§ 352 1 of its practice, etc., cannot prevent the defendant from taking out a rule for arbitration before the time fixed by general rule of court for filing an affidavit of defence, or restrict his right to arbitrate upon condition of filing an affidavit, or strike off the rule to arbitrate upon his failure to do so." 9 And so it was held, that, the Legislature having, by statute,. fixed the standard of, and the mode of keeping, petroleum,, etc., it was incompetent for a board of 'health, under its general statutory powers, to impose additional restric- tions. 168 § 352. Acts Delegating Powers. — [Powers delegated to subordinate local authorities are strictly construed, and any reasonable doubts as to the existence of a particular power resolved against the same ; 100 and consequently, of two possible constructions, that is to be adopted which is based on the theory that the Legislature intended to give only such powers as were necessary to carry out the objects of the enactment, and not any larger powers than were necessary for that purpose. 161 Hence, too, statutes delegating to municipal and other inferior authorities the power of imposing taxation must be in clear and unambiguous terms, and are subject to the rule of strict construction ; 162 as, e. g., statutes giving municipalities power to impose a license tax on vehicles used in their streets, 183 or to levy assessments upon propert}' owners for improvements to their lands. 104 And so, too, grants to such corporations of extraordinary powers, unknown to the common law, as that of donating corporate funds in aid of a railroad. 165 An act conferring special ministerial authority upon officers, in the exercise of which 158 Hickernell v. Bank, 62 Pa. St. 163 Bennett v. Birmingham, 31 14G. Pa. St. 15. But a provision author- 169 Metr. B'd of Health v. izingacity to license, at any annual Schmades, 10 Abb. Pr. N. S. charge, " omnibuses or vehicles (N. Y.) 205. in the nature thereof," was con- 160 Paine v. Spratley, 5 Kan. strued to authorize such a charge 525. for the use of street cars ; Frank- 161 Wandsworth B'd of Works v. fort, etc., Ry. Co. v. Philadelphia, United Teleph. Co., L. 11. 13 Q. 58 Pa. St. 119. B. D. 904. m Rutherford v. Maynes, 97 1 "- Mason v. Police Jury, 9 La. Pa. St. 78. An. 368 ; St. Louis v. Laughlin, 49 I65 Indiana, etc., Ry. Co. v. Mo. 559 ; Moseley v. Tift, 4 Pla. Attica, 50 Ind. 476. 402 ; and cases infra. § 352] STRICT CONSTRUCTION. 491 rights of property may be affected or municipal liability incurred, must, upon pain of vitiating the entire proceeding, be strictly pursued ; 100 and all rights and powers of a juris- dictional or discretionary kind must be exercised in strict conformity with its letter and spirit. 167 A joint power granted to five commissioners cannot be exercised by four of them ; 108 nor a discretion vested in one body or person, e. (/., in the city councils, delegated to another, e. g., the mayor and aldermen. 109 And where a board, such as a board of county commissioners, propose to do any deliberative act which shall be binding upon absent members, it must be done at a regular meeting, or a regular adjourned meeting, or, if at a special meeting, notice thereof must be served, if possible personally, upon every member entitled to be present. 170 And this applies equally to public and private corporations. 171 Alike applicable to both is the principle that] rules and by-laws, are construed like other provisions encroaching on the ordinary rights of persons. They must, on pain of invalidity, be reasonable, and not in excess of the statutory power authorizing them, or repugnant to that statute or to the general principles of law (a). [Thus, an ordinance passed by the councils of a borough establishing fire-limits in the borough and prohibiting the erection of 160 Shawnee Co. v. Carter, 2 Mercer Co., etc., Ins. Co. v. Kan. 115. Stranahan, 104 Pa. St. 246. 167 Garrigus v. B'd of Comm'rs, (a) See Hacking v. Lee, 2 E. & 39 Iud. 60. E. 910. 29 L. J. 206 ; Exp. 168 Geter v. Comm'rs, 1 Bay Davis, L. R. 7 Ch. 526 ; Bentham (S. C.) 354. A commissioner's v. Hoyle, 3 Q. B. D. 289. See. court cannot delegate to an arcbi- also, Hall v. Nixon, L. R. 10 Q. B. tect the authority conferred upon 153 ; Young v. Edwards, 33 L. J. them to contract for the construe- M. C. 227 ; Hattersiey v. Burr. 4 fcion of a courthouse, but may H. & C. 153 ; Brown v. Holyhead Mithorize him to make a contract. Board, 1 H. & C. 601 ; Fielding v. subject to their approval : Russell Rhvl, 3 C. P. D. 272 ; Saunders v. /. Cage, 66 Tex. 428. S. E. R. Co., 5 Q. B. D. 456 ; 169 State v. Fiske, 9 R. I. 94. Dyson v. Lond. & N. W. K , 7 Q. 110 Pike Co. v. Rowland, 94 Pa. B. D. 32 ; Asheudcn v. Lond. & St. 238. Br. R. Co., 5 Ex. D. 190 ; Dcar- 171 Ibid. See, as to private cor- den v. Townsend, L. R. 1 Q. B. porations. Roberts v. Price. 16 L. 11; Torquay v. Bridle, -17 .1. P. J. C. P. 169; Moore v. Hammond, 183. [It would be impossible 6B. & C. 456. But a power given lo pursue the general subject to the Board of Directors of an of this section beyond the state- Insurance Company to settle losses ment of a few illustrative princi- niay be delegated to a committee : pies. For details see Dillon on Municipal Corporations; Angell and 492 STRICT CONSTRUCTION. [§ 353 frame buildings within the same, was declared inoperative, as, under the circumstances, an unreasonable exercise of the legislative powers conceded to such corporations. 173 So,] a local act which authorized a navigation company to make by-laws for the orderly using of the navigation, and for the governing of the boatmen carrying merchandise on it, was held not to authorize a by-law which closed the navigation on Sundays, and prohibited the use of any boat on it, except for going to church (a). [So, where building associations are authorized to impose lines upon their members for delinquencies, it has been uniformly held that the tines imposed must be reasonable, and that the imposition of fines upon fines, or an increase of fines for continued delinquen- cies, upon the principle of arithmetical progression, is unwar- ranted. 173 Again] where a charter which founded a school empowered the governors to remove the master at their discretion, and also authorized them to make by-laws; it was held that a by-law ordaining that the master should not be removed unless sufficient cause was exhibited in writing against him, signed by the governors, and declared by them to be sufficient, was void ; for the power to make by-laws did not authorize the making of one which restrained and limited the powers originally given to the governors by the founder. This was in effect to alter the constitution of the school (b). § 353. [As to statutes generally, conferring powers, it Ames, Field, Morawetz, on Cor- 394. porations, and similar works. A (b) It. v. Darlington School, 6 by-law requiring the consent of Q. J5. 082, questioned by Lord ail the stockholdera to a transfer Hatherly in Dean v. Bennett, L. of stock by a member is void as R. Ch. 489. Sec, also, R. v. Cut- against public policy : Sleeper v. bush, 4 Hun-. 2204 ; R. v. Wood, Goodwin, 07 Wis. 577.] 5 E. A: 15. 4!) ; Chilton v. London 112 Kneedler v. Norristown, 100 and Croydon 1!. Co., 16 M. & W. Pa. M. 30s. 212; Williams v. G. W. R. Co., 10 ( 'I Calder and Ilebble Xav. Co., Ex. 10; llutton v. Scarborough v. Pilling, 1 1 .M. & W. 76. Hotel, 2 Dr. & Sm. 521, 34 L. J. »" Hagerman v. Build'g & Sav. 043 ; R. v. Rose, 5 E. & B. 49, 24 Ass'n, 25 Ohio St. 186 ; Second N. L. J. 130; Bostock v. Stafford- Y. Build'g Ass'n v. Gallicr, cited shire R. Co., 3 Sm. & G. 283, 25 in Cit. Mm. Loan, etc., Ass'n v. L. J. 325 ; United Land Co. v. G. Webster, 25 Barb. (X. Y.) 263; E. R. Co., L. R. 10 Ch. 587; Xor- l.vnn v. Build'g Ass'n, (Pa.) 9 ton v. London & X. W. R. Co., 9 Centr. Rep. 360. And see Occident, Ch. D. 623, 47 L. J. 859 ; Sliillito 13. & L. Ass'n v. Sullivan, 62 Cal. v. Thompson, 1 Q. B. D. L2. § 353 | BTBH i • 0N8TBU( TION. VX 3? may bo said to be the result of the vast number of decis- ions upon questions arising under such enactments, that " a purely statutory authority or right must be pursued in strict compliance with the terms of the statute."" 4 ] Thus, the power given by the 43 1 Eliz. c. 2, to justices to appoint "four, three, or two substantial household, as parish overseers, is not well executed by appointing in.. re than four (a) ; or by appointing a single one. even when he is the only householder in the parish (b). The 355th section of the Merchant Shipping Act, 1854, which empowers the Board of Trade to give the master of a skip a certificate to pilot " any ships belonging to the same owner,"" was construed as requiring that the name of the owner should be mentioned in the certificate ; and a certificate repre- senting another person as the owner was held not granted in compliance with the statute (c). Where trustees, who were authorized to borrow 30,000Z. for building a chapel, and to levy the amount, with interest, by a rate, borrowed 32,0001., and made a rate to pay the interest on the whole of that sum, it was held, not only that they had exceeded their power, but that the rate was bad in toto (d). [And where an act authorized the formation of a certain number of banks, it was held, that, the number having been completed, no new banks could be organized in the places of such, as,, from time to time, ceased to do business. 175 Nor would a 114 Bish.."Wr. L., § 119, citing a was held, that, where an act. large number of cases. authorized a company to appro- (:! L. J. 87 ; R. v. Clifton, 2 East, into :i city, lor the supplying ot L68. Comp. Preece v. Pulley, 49 which with water the company was L. J. GSG, and comp. under trus- organized, an additional supply tee Act, 1850, s. 32, Shipperdson's thereof, and at one lime the corn- Trusts, -1!) I;. J. Ch. 619 : Stokes' pany diverted a small portion of a Trusts, L. R. 13 Eq. 333; Har- certain stream, its rights were nol ford's Trusts, 13 Ch. D. L35. confined to a single appropriation (c) The Karl of Auckland, 30 L. of any stream, so as to I shausl its J. 1*. M. A A. 121, 127. powers when any water, however ' (d) Richter v. Hughes, 2 B. & minute in quantity, had been C. 499. diverted; but neither did such an 118 State v. Chase, 5 Ohio St. 538. appropriation vest the right to the The power was held exhausted by entire stream in the company, so ti:e first exercise of it. Compare us to debar the sub-riparian latul- the decision in Schepp v. Read- holder's claim for damages by a ing, 2 Wood w. (Pa.) 400, where it lapse of the time prescribed foi 494 >'l KICT CONSTRUCTION. [§ 354 power to charter gas companies, the meaning of that term, as gathered from the provisions of the statute conferring the power, being companies manufacturing and furnishing the manufactured gas, authorize the incorporation of companies to supply natural gas to consumers." 8 ] 8 o.">4. Acts Investing Private Persons with Privileges. Cor- porations. — As regards enactments of a local or personal charac- ter, which confer any exceptional exemption fromacommon burden (a), or invest private persons or bodies, for their own benefit and profit, with privileges and powers interfering with the property or rights of others,they are construed more strict- ly, perhaps, than any other kind of enactment. The Courts take notice that they are obtained on the petitions framed by their promoters ; and in construing them, regard them, as they are in effect, contracts between those persons, or those whom they represent, and the Legislature on behalf of the public. Their language is therefore treated as the lan- guage of their promoters, who asked the Legislature for them ; [the promoters, rather than the Legislature, being considered as the framers ; 177 ] and when doubt arises as to the construction of that language, the maxim, ordinarily inappli- cable to the interpretation of statutes, that verba cartarum fortius accipiuntur contra proferentem, or that words are to be understood most strongly against him who uses them, is justly applied. The benefit of the doubt is to be given to those who might be prejudiced by the exercise of the powers which the enactment grants, and against those who claim to exercise them (b). Even if such statutes were not regarded bringing an action for such dam- R. v. Croke, Cowp. 801, Lofft. ages against the company; but 438; Gildart v. Gladstone, 11 each new appropriation of a East. 685 ; Hull Dock Co. v. La greater quantity of water from the March, 8 P>. & C. 52; Dudley same si i cam gave new rights of Canal Co. v. Grazebropk, 1 B. & action. Ad. 59; Hull Dock Co. v. Browne, '•6 Emerson v. Com'th, 108 Pa. 2 B. & Ad. 58; Per Patteson, J.. St. 111. bee Addenda to ? :S50. in It. v. Cumlierworth, 4 A. & E. (a) See ex. gr. Perchard v. Hey- 741; Blakemore v. Glamorgan- wood, 8 If. 11.468. shire Canal Co.,lM. & K. 154: 111 Raleigh, etc., R. R. Co. v. Webb v. Manchester R. Co., 4 Reid, 64 .V C. 155. See, also. Myl. & C. 116; Stockton and Wilmington, etc., R. R. Co. v. Darlington R. Co. v. Barrett, It Reid, Id. 226; McAden v. Jen- CI. & F. 590, 7 M. & Or. 870; kins, Id. 796. Seales v. Pickering, 4 Ping. 448 ; (b) See among many authorities, Parker v. G. W. It., 7 M. & Gr. ::;.! ! STKKT ci.NSl i:l .HON. 41>r, in the light of contracts (ci), they would seem to be subject to strict construction on the same ground as grants from the Crown, to which they arc analogous, are subject to it. As the latter arc construed strictly against the gran- tee, on the ground that prerogatives, rights, and emoluments are conferred on the Crown for great purposes and for the public use, and arc therefore not to be understood as dimin- ished by any grant beyond what it takes away by necessary and unavoidable construction (J); so the Legislature, in granting away, in effect, the ordinary rights of the subject, should be understood as granting no more than passes by necessary and unavoidable construction. A corporation, indeed, constituted by statute for certain purposes, is regarded as so entirely the creature of the statute, that acts done by it without the prescribed formalities, or for objects foreign to those for which it was formed, would be, in general, null and void (c). [In so far as the rights granted to cor- porations are destructive of, or encroach upon, public or common right, they are undoubtedly to be construed most strongly against those setting them up, and in favor of the state or public ; they are not to be extended beyond the ex- press words in which they are given, or their clear import; and whatever is not given in unequivocal terms, is to be deemed as expressly withheld. 17 ' And even in their 253 ; Eversficld v. Mid-Sussex R. Co., 3 DeG. & J. 286 ; Simpson v. S. Staffordshire Water-works, 34 L. J. Ch. 380; R. v. Wycombe, L. R. 2 Q. B. 310 : Morgan v. Metropolitan R. Co., L. R. 4 C. P. 07 ; Fenwick v. East London R. Co., L. R. 20 Eq. 544 ; per Coek- burn, C J., in Hipkins v. Birming- ham Gas Co., 6 II. & >J. 250 ; Atty.-Genl. v. Furness R. Co., 47 L. J. Ch. 776 ; Lamb v. N. London R. Co., L. R. 4 Ch. 522 ; Clowes v. Staffordshire Potteries, L. R. 8Ch. 125. (a) See R. v. York, and Midland It. Co., 1 E. & B. 858. [A statute. though containing the elements of a contract, is nevertheless to be construed as a statute : Union Pac. R. R.Co. v. U. S., 10 Ct. of CI. 548; aim 91 U. S. 72. Com)), lluide- koperv. Douglass, 4 Dall. 391 ; 3 Cranch, 1 ; Rice v. R. R. Co.. 1 Black, 358.] (b) Per Lord Stowell in The Rebeckah, 1 Rob. 230. (c) Chambers v. Manchester, etc., R. Co., 5B. & S. 588. 178 See Moran v. Comm'rs, 2 Black, 722 ; Sprague v. Birdsall, 2 Cow. (N. Y.) 419; Rathbuu v. Acker, is Barb. (X. V.) 393 ; McAfee v. R. R. Co., 36 Miss. 669; Bridge Co. v. R. R. Co.. 13 N. .1. Eq. 81 ; 1 Wall. 116; Camden, etc., R. R. Co. v. Briggs. 22 N. .1. [,. 623; Jersey City v. R. R. Co., 40 M. J. Eq. 417; Jersey City, etc., Co. v. Consumers' Gas Co.. Id. •127 ; Stormfeltz v. Tump. Co.. 13 Pa. St. 555 ; R'k of Pa. v. Com'th, 19 Id. 144; Packer v. R R. Co., Id. 211 ; Pa. R. R. Co. v. Canal Comm'rs, 21 Id. 9 ; Allegheny v. R. R. Co., 26 Id. 355 ; Dugan v. 4(H'> strict construction. [§354 own internal affairs, tliev are held to strict and rigid con- fortuity with the powers granted and the manner of their exercise prescribed by the statutes under which they have their being. Thns, where an act authorized certain corpora- tions to increase their capital stock, allotting the increased shares to the stockholders pro rata, and a company coming within the purview of the act increased its stock and allotted one share of the new issue to the holder of every two shares of the old, but upon condition that he pay $10 per share for every share of the new stock issued to him, and also $10 for the privilege of taking it, the condition was held incompe- tent, and the company compelled to issue the proportionate number of shares coming to the complainant without his being obliged to make the payments demanded. 179 But the strictness that is to be applied to the construction of a grant of corporate franchises is in no case permitted to be such as would defeat the object of the grant ; so that a power given to a company to connect " their " railroad with another, authorizes such connection of a road owned by the company in pursuance of a purchase by it, as well as one actually con- structed by it, 180 and a power to mortgage its property for the erection of a building, authorizes a mortgage for painting it. 181 A legislative grant is, indeed, like any other legisla- tive enactment, to be construed, if possible, so as to effect the intent of the grantors ; if that intent is doubtful, under the statute making it, the rule of construction recognized as applicable, requires the doubt to be resolved against the Bridge Co., 27 Id. 303 ; Com'th v. power to "make by-laws" for R. R. Co., Id. 339; West Branch the sale of stoek for unpaid. Boom Co. v. Dodge, 31 Id. 285 ; assessments does not authorize Com'th v. Pass. Ry. Co., 52 Id. a sale in the absence of a by- 506 ; Pa. R. R. Co.'s App., 37 Leg. law providing fur the same: Int. (Pa.) 125; Hartford Bridge Budd v. By. Co. (Or.) 15 Paeif. Rep. Co. v. Ferry Co., 29 Conn. 210; 659. Cunier v. R. B. Co., 11 Ohio St. l8 » Cleveland, etc., B. B. Co. v. 228; Indianapolis, etc., B. B. Co., Erie, 27 Pa. St. 3S0. v. Kinney, 8 lnd. 402; Young v. I81 Miller v. Chance, 3 Edw. MeKcnzie, 3 C.a. 31 ; Mayor v. B. (N. Y.) 399. And an act, allowed B. Co., 7 Id. 221 ; Sugar v. Sack- to be done by a majority of a ett, 13 Id. 462; Raleigh, etc., R, board consisting of nine trustees B. Co. v. Beid, 64 N. C. 155. and two ex oilicio members, was 1,9 Cunningham's App., 108 held well done bylive, notincluding Pa. St. 540. And a statutory the two ex officio members : Ibid. §§ :>55, 35GJ strict construction. 497 grantee, in favor of the public; 192 or, in analogy to another familiar principle of statutory interpretation," the con- struction is to be such as will make it accord with subse- quent legislation. 184 ] § 355. The principle of strict construction is less applicable where the powers are conferred on public bodies for essen- tially public purposes; as, for instance, to those given to the Metropolitan Board of Works {a). ^ 350. Acts Conferring Exemptions from Common Burdens or Surrendering Public Rights — [It is a settled presumption, in the construction of statutes, that the Legislature does not. without express declarations or clear and unmistakable manifestation of intent, mean to be understood as giving away any public right or stripping the state of any part of its prerogative. 185 Upon this presumption, as well as upon the consideration of the interested origin"'' of statutes conferring particular exemptions from general burdens, e. (/., of taxation, rests the rule that all such enactments are to receive a strict construc- tion. 187 For instance, a lot of ground upon which a church is being erected, was held not exempt from taxation under an act which exempted " churches, meeting-houses, and other regular places of stated worship," especially when read together with a constitutional provision permitting exemp- tions only in certain specific cases, among which are enumer- ated "actual places of religious worship." 188 But, whilst the 18S Ricev. R. R. Co., 1 Black, 13 N. J. Eq. 420; Academy of 358. Fine Arts v. Philadelphia, 22 Pa. ls3 See ante. $5 47. St. 496; Erie Ry. Co. v. Com'th, 11 Maysville Tump. Co. v. How, (5G Id. 84 ; Com'th v. ]}. \l. Co 2 nil Mon. (Ky.) 426. Pears. (Pa.) 389; Bennett v. Me- (a) Per Wood. V. C, in N. Whorter, 2 W. Va. 441. See, also, London R. Co. v. Metrop. B. of Bonrgignon 15. A., v. Com'th 98 Works, Johns. 405, 28 L. J. Ch. Pa. Si. .VI. And see ante, 4§ 162- 909. See. also, Pallister v. Graves- 164. end, !) 0. i'.. 774; Galloway v. 18 « Ante, § 354. London (Mayor of), L. R. 1 ILL. "» State v. Mills, 34 X. J. L.. 34 ; Quinton v. Bristol (.Mayor of), 177; Com'th v. Canal Co., 32 Md. L. R. tr Eq. 524; Atty.-Genl. v. 501 ; Cincinnati College v. Ohio, Cambridge, L. R. G II. L. 303 ; 19 Ohio, 110 ; and cases in preced- Ricbmond v. N. London R. Co., in u" note and intra. Sec a! L. R. 3 Ch. 681; Lyon v. Fish- Buffalo City Cemetery v. Buffalo mongers' Co., 1 App., (109; 46 N. Y. 506 ; Republic v. Hamil- Vcnom's Case, 2 Ch. D. 522. [See ton. 21 111. 53. Scdgw. 32G.1 "H Mullen v. Erie Co., 85 Pa. St. 186 Water Comm'rs v. Hudson, 288. Comp. ante, jf 95. 32 498 STRICT CONSTRUCTION'. ft 356 person claiming the exemption must, in obedience to the rule of strict construction, bring himself within both the letter and spirit of the enactment, the rule applies in such cases as well as in those of other statutes, penal as well as remedial, that other acts in pari materia may be consulted to ascertain the intent, of the Legislature. 189 And where a statute pre- scribing a less rate of taxation for certain classes of property, e. g., rural lands taken into a city, is designed, not to confer a special privilege or exemption, but to make an equitable distribution of the tax-burden, it is to be more liberally con- strued as affecting the claimant. 190 ] ''* 9 See Hannibal, etc.. R R. Co. v. Shacklett, 30 Mo. 550. It was lield in this case, that the roadbed, machinery aud depots of a railway company, and other property used by it in operating the road, are to be deemed part of and represented by its capital stock, aud not taxa- ble as " property owned by incor- porated companies over and above their capital stock." 190 Gillette v. Hartford, 31 Conn. 351. § 357] USAGE, ETC. 409 CHAPTER XIII. Usage and Contemporaneous Construction. Legislative Construction. Change of Language, etc. § 357. Contemporaneous Exposition. § 358. Judicial and Professional Practice and Usage. § 360. Departmental, etc, Usage. § 361. Limits of Effect of Contemporaneous or Practical Construction. § 362. Particular Customs. § 363. Stare Decisis. § 364. Federal and State Courts. Courts of Different States. § 365. Legislative Declaration of Construction. Later Cognate Acts. § 366. Earlier Cognate Acts. § 367. Use of same Phraseology in Later Act in Pari Materia. § 368. Adoption of Previous Construction by Re-enactment. § 369. Same Phraseology in Analogous Acts. § 370- Amendments using Same Terms. § 871. Adoption of Construction by Transcribing Foreign Act. § 372. Effect of Legislative Intimation of Erroneous Opinion. § 374. Effect of Express Enactment of Existing Rules. § 375. Effect of Recitals in Statutes. § 376. When and how Erroneous Assumption by Legislature may have Force of Enactment. § 378. Change of Language. § 380. Omission of Material Words in Former Phraseology Supplied. § 381. Variations of Phraseology Treated as Insignificant. § 382. When Difference of Language Indicative of Difference of Meaning. § 383. Variation of Language in Same Act. § 384. Omitted Words of Earlier Act when not Supplied in Later Words Construed in Bonam Partem. Multiplicity of Words. Same and Different Meanings in Same Word. Particular Expressions Frequently Used in Statutes. Day, Week, Month, etc. Computation of Time. Periodical Recurrences. Computation of Distances. § 357. Contemporaneous Exposition It is said that the best exposition of a statute or any other document is that which § 385 g 386. § 387. § 388, § 389. § 390, § 394 § 395 500 I SAGE, ETC. [§o57 it has received from contemporary authority. Optima est legum interpres consuetudo (a). Contemporanea expositio est optima et fortissima in lege (b). Where this has been given by enactment 1 or judicial decision, 2 it is of course to be accepted as conclusive (c). But further, the meaning publicly given by contemporary, or long professional usage, is presumed to be the true one, even when the language has etymologically or popularly a different meaning. Those who lived at or near the time when it was passed, may reasonably be supposed to be better acquainted, than their descendants, with the circumstances to which it had relation, as well as with the sense then attached to legislative expressions (d) ;. and the long acquiescence of the Legislature in the interpre- tation put upon its enactment by notorious practice, may, perhaps, be regarded as some sanction and approval of it (e). [" It gives the sense of community of the terms made use of by the Legislature. If there is ambiguity in the language, the understanding and application of it when the statute first (a) Dig. i. 3, 37. [See Bish., Wr. L., § 104.] (6) 2 Inst. 11 ; [Phila. & Eric R. R. Co. v. Catawissa R. It. Co.. 53 Pa. St. 20, 61 ; Giant v. Ilickox, 64 Id. 334, 336 ; Packard v. Rich- ardson, 17 .Mass. 121, 143.] 1 See Phila. & E. R. It. Co. v. C. II. li. Co., supra. -' Sec Grant v. Ilickox, supra. (c) Sec ex. gr. per Hullock, B., in Booth v. OobotsoD, 1 Y<>. it J. 360 ; perTindal, C. J., in Bank of England v. Anderson, 3 Bing. M. ( '. 666 ; per Parke, 15.. in Doc v. Owens, 10. \k & W. 521 ; per Mar- tin. 15., in Curlewis v. Mornington, 7 E.<& B.283. [The fact thai a stat- ute was omitted, and another of later date upon the same subject published, by the digesters of the laws of a state, contemporaneous with the enactment of the later statute, and shortly after it, had become a law, is referred to, in Weiss v. Iron Co., 5s Pa. St. 295, 302, by Sharswood, J., an eminent jurist, as some indication that the latter should be construed as repealing the former by implica- tion. See, to similar effect, Mc.Miekcn v. Commonwealth, 5s Pa. St. 213. 219.] (d) Co. Litt, 8 b. ; 2 Inst. 18,. 282 ; Bac. Ab. Stat. I. 5 ; 2 Hawk, c. 9, s. 3 ; Sheppard v. Gosnold, Vaugh. 109 ; per Lord Mansfield in It. v. Varlo, Cow p. 250 ; per Lord Kenyon in Leigh v. Kent, 3 T. It. 364, Blankley v. Winstan- ley, Id. 286, and R. v. Scott, Id. 604 ; per Buller, J., in R. v. Wal- lis. 5 T. It. 380; per Lord Ellen- borough in Kitchen v. Bartsch, 7 East, 53; />< r Best, C. J., in Stewart v. Lawton, 1 Ling. 377; per Lord Hardwicke in Any. Genl. v. Par- ker. 3 Atk. 576 ; per Lord Eldon in Atty.-Genl. v. Forster, 10 Yes. 338 ; per Parke, B., in Jewison v. Dyson, 9 M. & W. 556, and ('lilt v. Schwabe, 3 C. B. 409 ; R v. Mashiter, 6 A. 153 ; R v. Davie, Id. 374 ; castle v. Atty.-Genl., 12 CI. 419 ; Smith v. Lindo, 4 C & E. New- & V. B. N. S. 395; It. v. Uncord, 3 E. & E.. 115; Atty.-Genl. v. Jones, 2 II. & C. 347 ; Marshall v. Bp. of Exeter, 13 C B. N. S. 820, 31 L. J. M. C. 262 ; Montrose Peerage, 1 Macq. II. L. 401. (e) See per James, L. J., in Thi Anna. 1 P. D. 259. ■§ 358] USAGE, ETC. 501 comes into operation, sanctioned by a long acquiescence on the part of the Legislature and judicial tribunals, is the strongest evidence that it has been rightly explained in practice." 3 ] It often becomes, therefore, material to inquire what has been done under an Act; this being of more or less cogency, according to circumstances, for determining the meaning given by contemporaneous exposition (a). A notable instance, in recent judicial history, is the case, in which, upon the trial of an information at the suit of the Attorney-General, against a member of the House of Commons for voting without having taken the oath of alle- giance within the meaning of the Parliamentary Oaths Act of lSGti, as amended by the Promissory Oaths Act of 1868, evidence of the practice observed in that body as to taking the oath of allegiance was held admissible for the purpose of explaining the construction of those statutes. 4 Even where, were the matter res integra, the construction of a statute would be different, that placed upon it by contemporaneous exposition and long usage under it, will often prevail. Thus, of an early and generally prevailing practical construction of a power given by an act to dispose of lands as including a power to sell and convey the common lands, it was said, that " long and continued usage furnishes a contemporaneous construction which must prevail over the mere technical import of words." 6 ] § 358. Judicial and Professional Practice and Usage. — It has been sometimes said, indeed, that usage is only the inter- preter of an obscure law, 6 but cannot control the language 3 Packard v. Richardson, 17 to the uniform practice under them, Mass. 121, 143. See, also, in sup- it' this practice lias continued for a port of the same principle : McKean considerable period ot time;" cit. v. Delancy, 5 Cranch, 22; Ilahnv. Sherwin v. Bugbee, 10 Yt. Ill . I . S., 107 U. S. 402; Rogers v. State v. Cook, 20 Ohio St. 259; Goodwin, 2 Mass. 475; Op. of State v. Severance, 4i) Mo. 401 Justices, 3 Pick. (Mass.) 517; (city ordinance). Steiner v. Coxe, 4 Pa. St. 13, 28; (a) R. v. Canterbury (Abp. of). Graham's App., 1 Dall. (Pi.) 136 ; 11 Q. B. 581, p< r Coleridge, J. Krnion v. Hill, 1 La. An. 419; 4 Atty.-Genl. v. Bradlaugh, (C. Morrison v. Barksdale, Harp. (S. A.) L. R. Q. B. D. 667. ('.) 101, and cases infra. In Rogers v. Goodwiu, 2 Ma>s. French v. Cowan, (Me.) 4 47.'., ITT-S. New Eng. Pap. 082. 680, it is 6 Bailey v. Rolfe, 16 N. II. 247. said: "In construing statutes And see Chestnut v. Shane, 10 applicable to public corporations, Ohio, 599. courts will attach no slight weight 502 USAGE, ETC. [§ 358 of a plain one ; 7 and that if it has put a wrong meaning on unambiguous language, [or is contrary to its obvious meaning, 8 ] it is rather an oppression of those concerned than an exposition of the act, and must be corrected {a). It may, indeed, well be the rule, as Lord Eldon laid it down in a case of a breach of trust of charity property, that if the enjoyment of property had been clearly a continued breach for even two centuries, of a trust created by a deed or will, it would be just and right to disturb it (b). But it seems different where the Legislature has stood bv and sanctioned by its uninterposition the construction put upon its own language by long and notorious usage ; and the proposition above stated certainly falls short of the full effect which has been often given to usage. Authorities are not wanting to show that where the usage has been of an authoritative and public character,its interpretation has materially modified the meaning of apparently unequivocal language. Thus, the statute 1 Westm. c. 10, for instance, which enacts that coroners shall be chosen of the most legal and wise knights,, has always been understood to admit of the election of coroners who are not knights (c). So, a power given by the 6 Hen. 8, c. 6, to the judges of the Queen's Bench, to issue a writ of procedendo, was held, from the course or practice,, to be exercisable by a single judge at chambers (d). Although the 31 Eliz. c. 5, which limited the time for bringing actions on penal statutes to two years, when the action was brought for the Queen, and to one year, when brought as well for the Queen as for the informer, was silent as to actions brought for the informer alone ; it was held, partly on the ground of long professional understanding, that the last-mentioned actions were limited to one year (e). Though the 15 Rich. 2 enacted that the Admiralty should have no jurisdiction 7 Atty.-Genl. v. Bank, 5 Ired. wicke, 1 H. & N. 53, and in. Eq. (M. C.) 71; Bailey v. Rolfe, Pocliin v. Duncombe. Id. 856. supra. (*) Per Lord Eldon in Atty.- 8 Atlv.-Genl. v. Bank, supra, Genl. v. Bristol, 2 Jac. & W. 321. (a) It. v. Canterbury, supra ; (c) 2 Hawk. c. 9. s. 2. Vaugh. 170; and per Lord (d) R. v. Scaife, 17 Q. B. 238. Brougham in Dunbar v. Rox- See Leigh v. Kent, 3 T. R. 362. burgh. 3 CI. & F. 354; per Grose, Also: Stuart v. Laird, 1 Cranch, J., in R. v. Hogg, 1 T. R. 728; ptr 299, post, § 527. Pollock, C. B., in Gwyn v. Hard- (e) 8 Anne, c 14; Dyer v. Best,. L. R. 1 Ex. 152. § 358] USAGE, ETC. 503 over contracts made in the bodies of counties, seamen engaging in England have, nevertheless, always been admitted to sue for wages in that Court (a), where the remedy is easier and heifer than in the Common Law Courts ; on the ground, it has been said (5), that communis error facit jus;' or rather, as was observed by Lord Kenyon (c), not communis error, but uniform and urtbroken usage, facit ju6. ''Were the language obscure," said Lord Campbell in a celebrated case, " instead of being clear, we should not be justified in differing from the construction put upon it by contemporaneous and long continued usage. There would be no safety for property or liberty if it could be successfully contended that all lawyers and statesmen have been mistaken as to the true meaning of an old Act of Parliament " (J). If we -find an uniform interpretation of a statute materially affecting property and perpetually recurring, and which lias been adhered to without interruption, it would be impossible to introduce the precedent of disregarding that interpreta- tion (e). [On the contrary, such an interpretation, under which property rights have been acquired, 10 from a change of which infinite mischief would result, 11 will be upheld, if possible ; nor can a long settled practice be disregarded, although it originated in error."] The Central Criminal Court Act, 4 & 5 Will. 4, c. 36, which empowers the judges of that Court, or any " two or more " of them, to try all offences which might be tried under a commission of oyer and terminer for London or Middlesex, was construed to -authorize a single judge to try ; such having been the inveterate practice under the Act (/). When the question (a) Smith v. Tilley, 1 Keb. 712. («) Per Lord Westbury, in \b) Per Lord Holt in Clays v. Morgan v. Ciawshay, L. K- •"> II. Sud^rave, 1 Salk. 33. L. 304. 320. 9 See recognition of this principle 10 Be Warfield, 22 Cat. 51: as to conveyances of property by Brown v. State. 5 Col. 496. married women without acknowl- " Van Loon v. Lyon, 4 Daly. edgment, etc., inDavey v. Turner, (N. Y.) 149. 1 ball (Pa.) 11, 18; Lloyd v. '-' State v. Chase, 5 liar. & J. Taylor. Li. 17; Kirk v. Dean, 2 (Md.) 803. Binn. (Pa.) 341, 845. (J) P. v. Leverson, L. P. 4 Q. (c) In R. V. Essex, 4 T. 11.594. B. 394. See Stuart v. Laird, 1 (d) Gorham v. Bp. of Exeter, 15 Cranch, 299; ami p< r .lames, L. J. , Q. B. 73. See, also, per Cur. in in The Anna. 1 P. D. 259. Comp. Hebbert v. Purchas, L. R., 3 P. C. however. Clow v. Harper, 3 Ex. 650. D. 193 504 l SAGE, ETC. [§ 359 arose whether a person convicted at one time of several offences could be considered, at the time of the adjudication, as "in prison undergoing imprisonment," within the 25th sect, of the 11 & 12 Vict. c. 43 (which authorizes the convicting justice, in that case, to make the period of imprisonment for the second offence begin from the expiration of that of the first), it was decided in the affirm- ative, partly, indeed, in conformity with the construction put on the analogous enactment in the 7 & 8 Geo. 4, c. 28, but partly also in consequence of the practice of the judges for forty years (a). § 359. In all these cases, a contrary resolution would, -to use the words of Parker, C. J., (b) have been an overturning of the justice of the nation for years past. [It is, of course, impossible to lay down any rule as to the length of time required to make usage an authoritative expounder of a statute. In one case it was said, that, " where you can carry back the usage for a century, and have no proof of a contrary usage before that time, you fairly reach the period of contemporanea expositio. 13 In other cases, an unbroken usage of 500 years, 14 of 200 years/ 6 of a century/ 6 of 50 years, 17 of 40 years/ 8 of 30 years or more/ 9 is appealed to for the purposes of exposition. But it may, in general, be said, that the force of contemporaneous exposition, or the exposition involved in professional usage, is most properly confined to old statutes ; whereas a recent statute, when brought into controversy, is to be construed according to its terms, not according to the views taken of it by the parties in interest. 20 And, although in this country a statute may be termed, and treated as, an old statute, which, in England, (a) R- v. Cutbush, L. R. 2 Q. B. 16 Packard v. Richardson, 17 373. See, also, the Duke of Buc- Mass. 121, 143. clench v. Metrop. B. of Works, 17 Lord Fernioy's Claim to Vote, L. R.5 Ex. 251; Mignault v. Malo, 5 II. L. C. 729, 785. 4 P. C. 123, 13<>. ls B. v. Cutbush, supra. tb) In R. v. Bewdley, 1 P. Wms. 19 Pease v. Pick, IS How. 595 ; 223 U. S. v. Recorder, 1 Blatchf. 218, 18 Dunbar v. Roxburgh, 3 CI. & 223; Clark v. Dotter, 54 Pa. St. Pin., at p. 354. 215.210. " Mansell v. R., 8 E. & B. 54, 72, 20 Clyde Nav. Trustees v. Laird, 111. L. R. 8 App. Cas. 673, per Lord 15 Gnrham v. Exeter, 15 Q. B. Watson. § 360] [J8AGE, ET< . 5( •:. would not be so regarded or treated, Not, mutatis mutandis, the principle just stated would seem to be here recognized." § 300. Departmental, etc.. Usage. — [It is not Old)' the practice of courts in regard to statutes that is respected by the superior courts, — although it is said, that, where the construction of an act is doubtful, one long acted upon by the inferior courts will generally be adopted by the supreme tribunal" — but of almost equal dignity is the practical construction put upon an act by the governmental officers particularly charged with its execution," especially where so long continued as to have grown into a rule of departmental practice. 2 ' Thus the •construction of a statute adopted and acted upon, by the executive, in the execution of his duty to give effect to the laws, 25 or by the secretary of the treasury ; 20 or the construction of a general insurance law of a state by its attorne3'-general and other officers required to act under it, 27 will, in cases of doubt and ambiguity, — but, it is said, only in such cases," — be adopted by the courts ; or, at least, not disregarded by them, except for cogent reasons. 29 As, how- ever, no such usage can alter the law, it cannot, in any proper sense, be binding upon the courts, bound as they are, to con- strue all laws coming before them according to their own judi- cial views. 30 Nor, on the re-enactment of a statute, with additions, would the departmental construction of the original act control the construction of the new one, especially where this would make some part of the additions repugnant 21 See Packard v. Riebardson, 17 Mass. 121 ; Chestnut v. Shane, 16 Ohio, 599. 22 Plummer v. Plummer, 37 Miss. 185; and see Clark v. Dotter, 54 Pa. St. 215. 1 Stuart v. Leigh, 1 Cranch, 299 ; U. S. v. Bank, 6 Pet. 29 ; Edward v. Darby, 12 Wheat. 200 ; Union [ns. Co. v. Hoge, 21 How. 35 : I'. S. v. Moore. 95 U. S. 700 ; Brown v. U. S., 113 Id. 569 ; The Laura. 114 Id. 411 ; Mathews v. .Shores 24 111. 27 ; Goddard v. Gloninger, 5 Watts (Pa.) 209; Westbiook v. Miller, 50 Mich. 148; Seanlan v. Cbilds, :'»:! Wis. 663; ami eases infra. 24 U. S. v. Gilmore, 8 Wall. 330; :SO, at ieasl, us to bind the depart- ment as to transactions past before the rule is changed : Ibid. 25 U. S. v. Lytle. 5 McLean. 9 ; and see Westbrook v. Miller, supra. *« Halm v. U. S., 14 Ct. of CI. 305 ; aff'd, 107 U. S. 402. -' Union Ins. Co. v. Hoge, supra. *« U. S. v. Graham, 110 U. S. 210. 29 U. S. v. Johnston, 124 U. S. 31 L. ed. :iS9. «• U. S. v. Macdaniel, 7 Pet. 1, 14; U. S. v. Dickson, 15 Id. 1 11 ; Greely v. Thompson, 10 How. 225; U- S. v. Graham, supra ; /.'< Manhattan Ius. Insi'n. 82 N. Y. 142. 506 USAGE, ETC. [ g 361 to the body of the enactment. 31 Still less, where a rule of construction has been thus established as to one statute, but its application to a later one forbidden by the Legislature, will the court enforce its application to a yet more recent statute of the same class, if denied by the department. 32 ] § 361. Limits of Effect of Contemporaneous and Practical Con- struction. — The understanding which is accepted as author- itative on such questions, however, is not that which has been speculative merely, or floating in the minds of profes- sional men ; it must have been acted on, and acted on in general practice (a), and publicly. A mere general practice, for instance, which had grown up in a long series of years, on the part of the officers of the crown, of not using patented inventions without remuneration to the patentee, under the impression that the Crown was precluded from using them without his license, was held ineffectual to control the true construction or true state of the law ; which was that the Crown was not excluded from their use (b). [Nor can a custom at variance with the plain meaning of the law be sustained as a construction of it. Thus, an acceptance given by the secretary of war to contractors upon whose contract no payment was due, was held void, either as an advance upon the contract or. as a loan of the public credit, both of which were prohibited by act of congress, notwithstanding such a usage had sprung up in the department. 33 So, where the compensation of a public officer is fixed by local statute, he cannot recover additional compensation for expenses incurred by him in the performance of his official duties, although by a usage, long antedating the statute, such in- cidental expenses may have been paid without objection ; 34 for, whilst an immemorial custom may control the common law, 3 ' both the latter and the custom, however venerable, 31 Dollar Sav. B'k v. U. S. ( 19 Ch. D. 370. Wall. 227. (b) Feather v. R., 6 B. & S. 257, 32 U. S. v. Gilmore, 8 Wall. 35 L. J. 200. 330. M Peirce v. Tj. S., 1 Ct. of CI. a) Per Lord Ellenborough in 270. [sberwoodv. Oldknow, 3 M. & S. M Albright v. Bedford Co., 106 396 ; /<ut even in other matters of statutory interpretation, not involving any fundamental principles or rules of property, but questions of practice, the same princi- ple applies, although the decisions under which a practice has grown up be, in truth, erroneous. 44 Upon this subject, however, a recent decision of the Supreme Court of Penn- sylvania seems to lay down the only safe and reasonable rule. " Where a rule of property has been established, it is better to let it stand, although subsequent experience should sat- isfy us that it is an erroneous one. A rule of property can only 40 Delaplane v. Crensluiw, 15 in addition to some of the above Gratt. (Va.) 457. cases: He Warfield, 22 Cal. 51. 41 Will)., p. 147. See, Bish., ** Lauve's Succession, 6 La. An. Wr. L., % 104a. 529; Wolf v. Lowry, 10 Id 272; 4 - Ante, £ 1. note 1. Desplain v. Crow, 14 Oreg. 404; « Field v. Goldsby, 28 Ala. 218; Sheridan v. Salem. Id. 328. "A Matbeson v. Hearin, 29 Id. 210; single decision should be followed, Boon v. Bowers, 30 Miss. 246; unless clearly wrong. And a Tuttle v. Griffin, 61 Iowa. 455; series of decisions not jusl Inthem- Qering v. Chambers, 103 Pa. St. selves may bind where one would L72, 1*76; Seale v. Mitchell, 5 Cal. not:" Bish., Wr. L.. § 104a, 401; Aieard v. Daly, 7 La. An. referring to Com'th v. Miller, 5 612; State v. Thompson, 10 Id. Dana (Ky.) 320 ; H. v. Chantrell, 122; Fanner v. Fletcher, 11 Id. L. R. 10 Q. B. 587. 589, 590; 142; New Orleans v. Poutz, 14 Id. People v. Albertson, 55 N. Y. 50, 853; Bane v. Wick. Ohio St. 13; 04; Van Loon v. Lyon, 4 Daly Day v. Munson, 14 Id. 4ss. And, (N. Y.) 149; Kentucky v. Ohio, 24 see Bish., Wr. L.. s; 104a, citing. How. fiii. §3G4] STAKE DECISIS 509 be changed by an act of assembly without unsettling titles;" but, upon a matter not involving a rule of property, " it is far better, when this court commits a blunder, to correct it in a manly way, than to imitate the ostrich by hiding our heads in the sand." 45 And it must also be remembered that such expressions as amount only to obiter dicta, do not con- trol, but are controlled by the circumstances of the cases in which they occur and the points really in controversy/ 6 § 304. Federal and State Courts. Courts of different States. — [A similar principle is probably the logical foundation of the rule in the federal courts, which adopts, upon the con- struction of state and foreign statutes, the decisions of the highest tribunals of the state or country where they are in force, except, as to states, in so far as they conflict with the- constitution, laws and treaties of the United States ; 47 and of the rule observed by the courts of the several states, by which the courts of one state, in construing the statutes of another, follow the decisions of the courts of the latter, 4 ' although a similar statute in the home state has received a 45 Pax son, J., in York's A pp., 17 W. N. C. (Pa.) 33 ; 1 Centr. Rep. 659, 660; 8. 0. 110 Pa. St. G9. 46 Miller v. Marigny, 10 La. An. 338 4; See Bell v. Morrison. 1 Pet. 351 ; DeWolf v. Rabaud, Id. 476 ; Gardiner v. Collins. 2 Id. 58; U. S. v. Morrison, 4 Id. 124; Cath- cart v. Robinson, 5 Pet. 2(54 ; Happending v. Dutch Church, 10 Id. 455 ; Elmendorf v. Taylor. 10 Wheat. 152 ; Porterhckl v. Clark, 2 How. 70; Curran v. Arkansas, IS How. 304 ; Peik v. Ry. Co., 94 l'. S- 164; Lamborn V. Dickinson Co., 97 U. S. 181; Davie v. Briggs, Id. 628; R. R. Companies v. Gaines, Id. G97; Amy v. Dubuque, 98 Id. 470 ; Amer. Emigr. Co. v. Adams Co., 100 Id. 61 ; Barrett v. Holmes, 102 Id. 651 ; Monies v. Hank. 104 10. 025 ; Flash v. Conn, 109 Id. 371 ; Boyle v. Arlid.ge, Hemps. 620 ; The Samuel Strong, Newb. Adm. 187; Bloodgood v. Gracey, 31 Ala, 575 ; Black v. Canal Co., 22 X. J. L. 130 ; Dra- per v. Emerson, 22 Wis. 147 ; State v. Macon Co. Ct., 41 Mo. 453. But see, for exec] 'lions to this rule : Morgan v. Curtenius, 20 How. 1 ; Hooper v. Scheimer, 23 Id. 235 ; Butz v. Muscatine, 8 Wall. :>;:>. 4s See Hoyt v. Thompson, 3 Sandf. (X. Y.) 416 ; Howe v. Welch. 3 How. Pr. X. S. (N. Y.) 405; Hale v. Lawrence, 23 X. J. L. 590; Sparrow v. Kohn, (Pa.) 1 Centr. Rep. 352; Davis v. Robert- son, 11 La. An. 752 ; McMerty v. Morrison, 62 Mo. 140 ; Johnston v. Bank. 3 Strobh. Eq. (S. G) 263 ; Carlton v. Felder, 6 Rich. Eq. (S. C.) 58. So, too, a.s to the con- struction of a charter granted by another state : Merrimac Min'g Co. v. Levy, 54 Pa. 8t. 227; Aultman's App., 98 Id. 505. Ac- cordingly, the construction put by the U. S. Supreme Court upon an acl of Congress will be adopted bv state courts : State v. Andiiana. (Mo.) 10 West. Rep. 35, holding | 4, Act 1802, concerning infants of naturalized citizens, both prospective and retrospective. 510 LEGISLATIVE CONSTRUCTION. [§ 365 different construction : 40 this rule being, however, subject to the qualifications, that the decision of the Supreme Court of the United States upon such foreign statute, differing from the construction put upon it by the courts of its own state, and being more in harmony with the jurisprudence of the state whose court is called upon to construe the act, will, in gener- al, be preferred ; : '" and that, in the absence of any proof of the construction given to a statute of another state by its courts, the court in which the question is raised will construe it as it would a statute of its own state. 61 § 365. Legislative Declaration ot Construction. Later Cog- nate Acts.— [A construction put upon an act by the Legis- lature itself, by means of a provision embodied in the same, that it shall or shall not be construed in a certain designated manner, is binding upon the courts, although the latter, without such a direction, would have understood the lan- guage to mean something different. 02 Thus, where an act made the secretion, sale, incumbrance, or fraudulent disposi- tion of property, not offences by themselves, but declared them to be " a fraudulent transfer of property," the court said : " This definition is furnished by the act itself, and the definition is as much a part of the act as any other portion. The right of the Legislature to prescribe the legal definitions of its own language must be conceded.'" Moreover, a 49 Howe v. Welch, 17 Abb. N. New Engl. Rep. 292, 294, where it C. (N. Y)397. is said: "The construction of 50 Davis v. Robertson, il La. statutes is governed by legislative An. 752; especially when the mat- definitions : that of indictments by ter is reviewable by the federal the ordinary use of language ;" (it. courts: Ibid. State v. Adams, 51 N. H. 568; 81 See Bond v. Appleton, 8 Mass. Stale v. Canterbury, 28 Id. 195. 472 ■ Smith v. Robertson, 11 Ohio M Herold v. State. 21 Neb. 50, St. 690. See Anderson v. May, 10 52-53. See the discussion of Heisk. (Tenn.) 84, where, an interpretation clauses in Wilb., pp. Arkansas statute being the same as 296-300, where it is remarked: "It a New York act, the court in lias been said that a very strict Tennessee gave the former the con- construction should beplaced upon struction given bv the New York a section which declares that one courts to the latter. See post, tiling shall mean another (fit. S371 Allsop v. Day, 7 II. & N. at p. " ••- Smith v. State, 28 Ind. 321. 463, per Pollock, C. B.), that See, also, U. S. v. (iilmore, 8 Wall. interpretation clauses embarrass 380; Phila., etc., R. R. Co. v. rather than assist the courts in their CatawissaR. R. Co., 53Pa. St. 20; decisions (cit, li. v. Cambridge- Byrd v. State, 57 Miss. 243. shire, Justices, 7 A. & E. at p. 491, See Jones v. Surprise, (N. II.) 4 per Lord Denman, C. J.), and fre- §305] LEGISLATIVE CONSTRUCTION. 51] statute declaratory of a former one; has the same effect upon the construction of such former act, in the absence of inter- vening rights, as if the declaratory act had been embodied in the original act at the time of its passage." And] when the Legislature puts a construction on an Act, a subsequent cog nate enactment in the same terms would, prima facicbe under- stood in the same sense. Thus, as the 125th section of the Bankrupt Act of 6 Geo. 4, which made void securities given by a bankrupt to creditors, as a consideration for signing the bankrupt's certificate, was stated in the preamble of the 5 & 6 Will. 4, c. 41, to have had the effect of making such securities void even in the hands of innocent holders for quently tlo a great deal of harm bj r giving a non-natural sense to words which are afterwards used in a natural sense without the dis- tinction being noticed" (cit. Liudsey v. Cundy, L. R. 1 Q. B. D. at p. 858; per Blackburn, J.). See also, the observations there referred to, of Lord St. Leonards, L. C, in Dean of Ely v. Bliss, -J DeG. M. & G. at p. 471; Wood, V. C, in Midland Hail. Co. v. Amber- gate Rail. Co., 10 Hare, at pp. 369, 370; Lush, J., in R. v. Pearce, L. R. 5 Q. B. D. at p. 389. It seenx. accordingly, to be the rule in EnglandT that an interpretation is not to receive a construction which would give it the effect of substitut- ing one set of words for another or rigidly defining the meaning of a word under all circumstances, but merely of declaring what things or persons may be comprehended within a particular term where the circumstances require that they should: see R. v. Cambridgeshire, Justices, supra. And in some cases a narrower, in others a more extended meaning has been given to words than a literal compliance with the interpretation clause would seem to warrant: see as examples of the first class. Grant v. Ellis, 9 M. & W. 113; Dean of Ely v. Bliss. 2 DeG., M. & G. 459; of the second, Davis v. R. R. Co., 2 L. M. & P. 599. Similarly a declaration that a certain word, etc., "shall include" certain things has been held to be used " by w ay of extension, and not as giving a definition by which other things are to be excluded:" Wilb., p. 299, cit. R. v. Kershaw, 6 E. Sc B. at p. 1007; 20 L. J. M. C. at p. 23, per Erie, J.; Exp. Ferguson, L. R. 6, Q. B. 280, 291; as . J. and infra. 21 ; and sec ex. gr. Sturgis v. .... will)., p. Hi. Dan-ell, 1 II. & N. 622, 28 L. J. i m Per James, L. J., in Dale's 366, sup. £ 326. Case, (J Q. B. D. 453. (e) Per Turner. L. J., in Cope v. (&) Mansell v. R., 8 E. & B. 7:!, Doherty, I K. & J. 27 L. J. Ch. per Blackburn, J., in Jones v. 610. Mersey Dock Co., 11 II. L. 480; (d) Bustros v. White, 1 Q. fl. D. Exp. Thorne, 3 Ch. D. 458, Exp. 423. Ati water, 5 Cb. 1). 30, and per «« Wyman v. Fabens, 111 Mass. James, L. J., in Exp. Campbell, 5 77, 82. Cb. D. 706. Comp. the remarks § 368] LEGISLATIVE CONSTKUCTION. 515 meaning, as referring to the actual, not the mere nominal, value thereof, was so construed when occurring in the general revenue law of 1881. 67 § 368. Adoption of Previous Construction by Re-enactment. — [Where, indeed, the two acts in pari materia are almost precisely alike, in the provisions under construction, it is said that the decisions upon the earlier will be considered as authority in the interpretation of the later act. 69 In other words, the re-enactment of a statute which has received a judicial construction, in the same, or substantially the same, terms, amounts to a legislative adoption of such construction, whether such re-enactment is by way of an isolated and in- dependent statute, of the incorporation of several former statutes into one, or of their incorporation in a code or revis- ion of statutes. 69 That is to say, it is a legislative adoption of its known construction ; so that that judicial construction which has been reported is to be deemed to have been adopted, notwithstanding there may have been other judicial -expositions, differing from the same, but remaining unre- ported at the date of the new enactment. 70 61 Com'th v. R. R. Co., 104 Pa. St. 89. And where the effect of a particular form of repealing clause had been several times adjudicated to be a continual ion of the provis- ions of the older statutes, it was said that the use of it again by the Legislature was to be treated as an adoption of that effect ; the decis- ions of the Supreme Court being matters of record and publication : State v. Brewer, 22 La. An. 273. « 8 ' Evans v. Ross, 107 Pa. St. 231. 69 See Duramus v. Ala. 326 ; Anthony Id. 27; Bank of Meagher, 33 Id. 622 ; State, 51 Id. 25 ; Exp. Matthews 52 Id. 51; Woolsey v. Cade, 54 Id. 378 ; Re Murphy, 23 N. J. L. 180 ; Knight v. Ocean Co., (N. J.) 10 Ceutr. Rep. 653. La Selle v. Whitfield, 12 La. An. 81 ; Myrick v. Hasey, 27 Me. 9 ; Cota v. Ross, 66 Id. 161 ; Tuxbury's App., 67 Id. 267; State v. Swope, 7 Ind. 91 ; Gould v. Wise, Harrison, 26 v. State, 29 Mobile v. O' Byrnes v. 18 Nev. 253 ; McKenzie v. State, 11 Ark. 594. And see State v. Stockley, (O.) 11 West. Rep. 259, where, upon the principle that, in a revision of all the general statutes of a state, a particular statute will re- ceive the same construction as be- fore the revision, it was held that a provision of the Rev. Stat, that di- rectors " shall be chosen by ballot by the stockholders who attend for that purpose . . each share shall entitle the owner to as many votes as there are directors to be elected, and a plurality of votes shall be necessary for a choice," did not give the right of cumulative vot- ing. That, however, if the lan- guage of a section of a revision is unambiguous, the court will not, in determining its meaning, con- sider the language of the statutes of which it is a revision, see Bent v. Ilubbardston, 138 Mass. 99. Aliter, if ambiguous : Pratt v. Comm'rs, 139 Id. 559. 10 Hakes v. Peck, 30 How. Pr. (K Y.)104. -1G rj:(;isLAirvE coNSTRLcrio.x. [§§369, 370 § 369. Same Phraseology in Analogous Acts. - | But the l'lllc is not confined to statutes strictly in pari materia. Where- terms and modes of expression arc employed in a new .statute, which, at the time of its enactment, had acquired, by judicial construction, a definite meaning and application in a previous statute on the same subject, or on one analogous to it, they are generally supposed to be used in the same sense, and in the construction of the later act, regard should be had to the known and established interpretation of such terms and modes of expression in the former. 71 Thus, an act passed in L803 provided that no courts could he appointed to be holden before a justice for the trial of civil causes at an earlier hour than '■» a.m. nor at a later than 6p.m., nor any default be taken until two hours after " the time set for trial." It was held that this phrase meant the time set for trial in the original process, and had no reference to any time set or appointed by adjournment." in L832 an act was passed, that, when any civil process should be served, returnable before a justice, and, "at the time appointed for the trial," the justice should be unable to attend, another justice might continue the suit. It was held that the same construction must be given to this substantial repetition of the phrase contained and construed in the earlier act." And, of course, when subsequently the Revised Statutes provided, that, whenever "at the time and place appointed for the trial*' of any civil suit before a justice, the latter should be unable to attend, another justice might grant a continuance, the same interpretation was put upon this expression ;' 4 and no efficacy to change this interpretation was allowed to a restriction in both of the latter acts forbidding more than one continuance, except by the justice before whom the case was to be tried. 70 § 370. Amendments using Same Terms. — [It is scarcely nec- essary to remark, that, where the same language, which has received a certain judicial construction in an act, is used in an act amendatory of the same, it is to be presumed to have 11 Wliii.oinb v. Rood, 20 Vt. « Plielps v. Wood, 9 Vt. 399. 49 M Wliitcomb v. Rood, supra. 73 Steele v. Hates 2 Vt. 32(X " Ibid. §371] LEGISLATIVE CONSTRUCTION. 517 been used there in the same sense, and intended to be subject to the same construction. 70 Amendments are so much regarded as but parts of the enactment affected by them," that it would seem that the rule that a word, etc., repeatedly used in the same statute is, in the absence of a manifest intent to the contrary, to receive the same meaning throughout 78 must apply to them. 79 § 371. Adoption of Construction by Transcribing Foreign Act. — [One of the most important bearings, possibly extensions, of the rule in question, is its application to statutes transcribed from the statute book of another state or nation. Thus it has been held, that, where Congress or the Legislature of a State enacts a statute which is a transcript of an English act that has received a known and settled construction by the courts of that country, that construction, at the time of such enactment, is to be deemed as accompanying and forming an integral party of the same. 80 And the same rule applies as to statutes copied from the statute books of other states. 81 16 Gonder v. Estabrook, 33 Pa. St. 374, 375. And see Robbins v. R. R. Co., 32 Cal. 472. " See ante, § 294. 18 Pitte v. Shipley, 46 Cal. 154 ; ante, § 41. Comp. post, § 387. " 9 Compare, however, State v. Co. Comm'rs, 78 Me. 100 ; where the phrase "Regular sessions," in Pev. Stat. c. 78, § 6, was held not to be identical in meaning with the same words in Rev. Stat. c. 18, § 5, the words " terms of record " :in the later act bearing that mean- ing. b0 Pennock v. Dialogue, 2 Pet. 1 ; Cathcart v. Robinson, 5 Id. 205; McDonald v. Hovey, 110 U. S. 619; Kirkpatrick v. Gibson, 2 Brock. Marsh. 388; The Devonshire, 8 Sawyer, 209; Tyler v. Tyler, 19 111. 151; Kennedy v. Kennedy, 2 Ala. 571; Marqueze v. Caldwell, 48 Miss. 23; State v. Robey, 8 Nev. 312. See Taylor v. Thompson, 5 Pet. 358; Com'th v. Hartnett, 3 Gray (Mass.) 450; Bloodgood v. Grasey, 31 Ala. 575. 81 Com'th v. Hartnett, supra; Pratt v. Amcr. Bell Tel. Co., 141 .Mass. 225; Campbell v. Quinlin, 4 111. 288 ; Rigg v. Wilton, 13 Id. 15; Fisher v. Deering, 60 Id. 114; Freese v. Tripp, 70 Id. 496 ; Pang- horn v. Westlake, 36 Iowa, 356 ; Bloodgood v. Grasey, 31 Ala. 575; Drennau v. People, 10 Mich. 169; Harrison v. Sager, 27 Id. 476; Grenier v. Klein, 28 Id. 12, 22; Daniels v. Clegg, Id. 32; Draper v. Emerson. 22 Wis. 147; Poertner v. Rnssel, 3:5 Id. 193; Westcott v. Miller, 42 Id. 454; ltilkelly v. State, 43 Id. 604; State v. Macon Co., 41 Mo. 453; Chirk v. R. R. Co., 44 Ind. 248; Fall v. Hazelrigg, 45 Id. 576; Trabantv. Ruminell, 14 Oreg. 17; Snoddy v. Cage, 5 Tex. 106; Lindley v. Davis, 6 Mont. 453 ; (where it is also decided that the adoption of a statute which has been amended, in the form in which it stood before the amend- ments were made, adopts the interpretation as made prior to the amendments). Compare llobbs v. R. R. Co., 9 Heisk. (Teun.) 873; Anderson v. May. 10 Id. 84 (ante, i; 304. note); lie Swearimrer, 5 Sawyer, 52; Hahn v. U. S., 14 Ct. of CI. 305. In Freese v. Tripp, supra, in applying the rule stated in 518 LEGISLATIVE CONSTBUCTION. [§371 [ndeed, it is laid down, that, whether passed by the Legis- lature of the same state or country, or by that of another, the terms of a statute which have acquired a settled meaning by judicial construction, are, when used in a later one, to be understood in the sense so attributed to them. 82 But, as applied to transcribed statutes, this rule is undoubtedly subject to important qualifications. Whilst admitting that the construction put upon such statutes by the courts of the state from which they are borrowed is entitled to respectful consideration, and that only strong reasons will warrant a departure from it, its binding force has been wholly denied, and it lias been asserted that a statute of the kind in question stands upon the same footing, and is subject to the same rules of interpretation as any other legislative enactment. 83 And it is manifest that the imported construction should prevail only in so far as it is in harmony with the spirit and policy of the general legislation of the home state, 84 and should not, if the language of the act is fairly susceptible of another interpretation, be permitted to antagonize other laws in force in the latter, or to conflict with its settled practice. 85 Nor, where the constitutional requirements of the adopting state are different from those of the originating one, would a construction by the courts of the latter conformable with its constitution, bind the courts of the former not similarly constrained/ 8 And, of course, a construction by the court* of the originating state, declaring an act unconstitutional, as beinf repugnant to the federal constitution, is not one which must be deemed adopted with the statute, where the t ranscribed statute, though largely a copy of the foreign one, yet contains such differentiating elements as to permit a the text to a statute giving an action must prove actual injury (cit. for damages to the wife tor selling Schreider v. Hosier, lb. US.) liquor to the husband, it was held 82 Com'th v. Elartnett, supra; that menial anguish, disgrace, or Bloodgood v. Grasey, :!l Ala. 575. loss of society was not an injury ~ : [ngraham v. Regan, 23 Miss. within the meaning of the act, and 213. not a proper subject of considera- b4 Gage v. Smith, 7!) Id. 219, Cit. lion tor the jury ; hut only injury Rigg v. Wilton. 13 HI. 15, and in person, 'property or means of Streeter v. People, (59 Id. 598; support (cit Mulford v. Clewed. Jamison v. Burton, 43 Iowa, 282. 21 Ohio St. 191) ; and that plaintiff 85 Cole v. People, 84 111. 216. tG Be Swearinger, 5 Sawyer, 52. § 372] LEGISLATIVE CONSTRUCTION. 519 construction which will uphold it as constitutional. 87 It is scarcely needful to add that subsequent fluctuations in the construction of a transcribed statute, by the courts of the originating state or country, though they may be entitled to great respect, are not within the meaning of the rule under discussion. 88 ] § 372. Effect of Legislative Intimation of Erroneous Opinion. — But an Act of Parliament does not alter the law by merely betraying an erroneous opinion of it (a), [so as to make it accord with the misconception.] For instance, the 7 Jac. 1, c. 12, which enacted that shop books should not be evi- dence above a year before action, did not make them evidence within the year ; though the enactment was obvi- ously passed under the impression, not improbably confirmed by the practice of the Courts in those days, that they were admissible in evidence (b). [Nor does a declaration in a statute that husband and wife shall not be required to testify against each other make them competent to do so volun- tarily. 89 ] So, an Act of Ed. 6, continuing till the end of next session an Act of Hen. 8, which was not limited in duration, was considered to be idle in that respect, and not to abrogate it (e). A passage in an Act which showed that the Legislature assumed that a certain kind of beer might be lawfully sold without a license, could not be treated as an enactment that such beer might be so sold, when the law imposed a penalty on every unlicensed person who sold any beer (d). The 41 & 42 Vict, c. 77, s. 7, which provided that the Public Health Act of 1875, s. 149, which vests the "streets" of a town in its local authority, should not be construed to pass minerals to the local authority, was con- sidered not to afford the inference that the soil and freehold of the streets vested in all other respects (e). Earlier bank- s' See Haskell v. Jones, 86 Pa. T. R. 358. St. 173. 89 Byrd v. Stale, 57 Miss. 243. 88 See Cathcart v. Robinson, 5 (c) The Prices of Wine, Hob. Pet. 264. 215. And see Allen v. Flicker, 10 (a) See ex. ex per Aslmrst, J., A. & E. 640, ante, § 71. in Dore v. Gray, 2 T. R. 358; Exp. (d) Read v. Storey, 6 II. & N. Lloyd, 1 Sim. N. S. 248, per Shad- 423, 30 L. J. M. C. 110; see 24 & well. V. C. 25 Vict. c. 21, s. 3. (b) Pitman v. Maddox, 2 Siilk. {e) Coverdale v. Chorlton, 4 Q. 690. See, also, Dore v. Gray, 2 B. D. 116; Rolls v. St. George. 520 II GISLATIVE CONS'] Kl I riON. [§ 372 nipt Acts, in making traders having the privilcgeoi Parlia- ment liable to be made bankrupts, had expressly provided that they should be exempted from arrest ; but when the Bankrupt Act of L861 enacted that all debtors should be liable to bankruptcy, without making any similar provision on behalf of peers and members of Parliament, it was held that they were nevertheless protected by the privilege {a). [So, the fact that a .statute is referred to in a subsequent one, the reference not bein^ intended as a re-enactment, will not give it vitality. 00 . Even where the later act attempts to amend an earlier one, previously repealed by implication, the copying- of parts of the earlier act into the amendment, was held not to re-enact it. 01 Conversely, a recital in an act that a former statute was repealed or superseded by another, is not conclusive upon the question of its repeal, that being a judicial, not a legislative one.°' J And where an act, declared to take effect at :i future date, abolished the office of city marshal] of Detroit, and another act. passed sub- sequently to it, but before the date fixed for its going into operation, reduced the number of jurors to be summoned by the marshal! in certain proceedings, it was held that tin; latter enactment did not operate to repeal the former so as to continue the office of city marshal!. 93 In some states the principle has been made a statutory rule of construction, that the repeal of an act is not to be deemed a declaration that, any act or part of an act expressly or impliedly so repealed was previously in force. 94 ] Southwark, 14Ch. 1). 785, 49 L. J. 1867: People- v. .Miner, 46 III. :;. In the case of the Franconia (a), the majority of the judges held that the Criminal Courts of this country had no jurisdiction to try a foreigner for manslaughter committed while he was sailing in a foreign ship within three miles from the coast of England ; although several Acts of Parlia- ment had assumed jurisdiction, for the purposes of naviga- tion, revenue, and fisheries (b), over foreigners for nets done within the three mile zone ; and one Statute (o) had declared that the minerals below low-water mark (in Cornwall) belonged to the Crown. [So, where an act lias expressly ex- cepted certain cases from the jurisdiction of a court, the latter is not extended to such cases by expressions in a sub- sequent enactment indicating a belief on the part of the Legislature that the jurisdiction of the court embraces them. 95 And it is said that the jurisdiction of a magistrate can never be inferred from the mere fact that a statute, by its phraseology, implies that his jurisdiction extends to a particular case. 96 § 374. Effect of Express Enactment of Existing Rules. — [It is an obvious inference from what has gone before, that enact- ments of any specific provision on a particular subject are not to be regarded as conclusive declarations that the law was different before. 97 Thus, a statutory provision empowering towns at their annual meetings to grant taxes on the assess- ment list which should next thereafter be completed by the assessors, was held to be no proof that they had not that power before. 98 So, where an act permitting the extension of a market house provided that one half of the same should be let to country people and the other half to butchers, victuallers, etc., " any law, usage or custom to the contrary notwithstanding," the former act which had also required the setting aside of the one-half for country people, and had (a) R. v. Keyn, 2 Ex. D. 163. capture within it is bad. (b) 59 Geo. 3, c. 38, s. 2; 17 & 18 95 Ludington v. U. S.. 15 Ct. of Vict, c. 104, s. 527 : 33 & 34 Vict. CI. 453. c. 90, s. 52 ; 39 & 40 Vict. c. 36, ss. 9 « Hersom's Case, 39 Me. 476. 179, 235 (Hovering.) See State v. Miller, 23 Wis. 634, (c) 21 & 22 Vict. c. 109. .The post, § 377. three mile zone, too. is, in inter- 91 Montville v. Haughtou 7 national law, so far considered a Conn. 543. part of the adjoining land, that 98 Ibid. 522 LEGISLATIVE CONSTRUCTION. §374 prohibited the sale of hoof therein, was held not repealed, as to the latter provision, there being no law, usage, or custom to the contrary ; so that, under the later act, the selling of beef in the part set aside tor the country people, even by such, remained prohibited." Nor is an express declaration, in a code, of a rule of law or equity, any indication that the .-ulc- was otherwise before. 100 The application of this principle is all the more obvious in the case of] provisions sometimes found in Statutes enacting imperfectly or for particular cases only that which was already and more widely the law. [Such enactments] have occasionally furnished ground for the contention that an intention to alter the general law was to be inferred from the partial or limited enactment ; resting on the maxim, expressio unius est exclusio alterius. But that maxim is inapplicable in such cases. 101 The only infer- ence which a Court can draw from such superfluous pro- visions (which generally find a place in Acts to meet un- founded objections and idle doubts), is that the Legislature was either ignorant or unmindful of the real state of the law, or that it acted under the influence of excessive caution ; and if the law be different from what the Legislature supposed- it to be, the implication arising from the Statute, it has been said, cannot operate as a negation of its existence (a) ; and anv legislation founded on such a mistake has not the effect of making that law which the Legislature erroneously assumed to be so. Thus, when in contending that debts due by cor- porate bodies were subject to foreign attachment in the- Mayor's Court, the express statutory exemptions of the East India Company and of the Bank of England were relied upon as supplying the inference that corporate bodies were deemed by the Legislature to be subject to that process, the judicial answer w T as that it was more reasonable to hold that the twa great corporations prevailed on Parliament to prevent all questions as to themselves by direct enactment, than to hold that Parliament by such special enactment meant to deter- 99 Mayor of Philad'a v. Davis, 6 397-399. Watts & S. (Pa.) 259, 278. («) Per Our. in Mnllwo v. Court 100 Nunally v. White, 3 Mete, of Wards, L. R. 4 C. P. 419, 437 ; (Ky.) 584. :u » ( l * ee V er Cockburn, C. J., in 101 See. as to propci' meaning and Shrewsbury v. Scott, 6 C. B. N. application of this maxim, post, §§ S. 1, 29 L. J 53. § 375] LEGISLATIVE CONSTKUCTION. 523 mine the question in all other eases adversely to corporations (a). A local Act which, in imposing wharfage dues for the maintenance of a harbor on certain articles, expressly exempted the Crown from liability in respect of coals im- ported for the use of royal packets ; and the provisions in turnpike Acts (&), which exempted from toll carriages and horses attending the Queen, or going or returning from such attendance ; were not suffered to affect the more extensive exemptions which the Crown enjoys by virtue of its preroga- tive (o). [So, an express declaration that persons interested in the recovery of a penalty may be witnesses does not operate as a repeal of an earlier act authorizing parties to proceedings generally to be so. 102 Nor w T ould a statute amendatory of another and giving a right of appeal in certain cases be construed as showing that the right did not exist before ; 103 nor an affirmative statute authorizing a court to permit a guardian to sell, etc., that he had no right to sell without such permission. 104 ] § 375. Effect of Recitals in Statutes.— A mere recital in an Act, whether of fact or of law, is not conclusive, but Courts are at liberty to consider the fact or the law to be different from the statement in the recital, [nor is a party estopped from denying by plea and putting in issue the existence of a fact recited as such even in a public statute, 105 ] unless, indeed, it be clear that the Legislature intended that the law should be, or the fact should be regarded, as recited. If, for instance, a road was stated in an Act to be in a certain town- ship, or a town to be a corporate borough, the statement,, though some evidence of the fact alleged, would be open, to contradiction (d). [So, if a statute recites that a person is- a member of a company, 106 that a prior life-tenant of an. (a) London Joint Stock Bank v. 410. Mayor of London. 1 C. P. D. 17. 104 Wallace v. Holmes, 9 Blatchf. (6) 3 Geo. 4, c. 126, s. 32, and 4 65. Geo. 4. c. 95, s. 24. 105 Dougherty v. Bethune, 7 Ga. (c) Weymouth v. Nugent, 6 B. 90. & S. 22, 34 L. J. 81 ; Westover v. (d) R. v. Haueihton, 1 E. & B. Perkins, 2 E. & E. 57, 28 L. J. 501, and R. v. Greene, 6 A. & E. 227 ; Smithett v. Blythe, 1 B. & 549. [And see People v. Dana,. Ad. 509. 22 Cal. 11, ante, £ 122.] 102 U. S. v. Cigars, 1 Woohv. m Scott v. Berkely, 3 C. B._ 123. And comp. ante, § 124. 925. 103 Tilford v. Ramsey, 43 Mo. .">•_'} LEGISLATIVE CONSTRUCTION. [§ .375 estate is dead, 10 ' or that a person has been attainted of trea- son," 8 " the court will not act upon Such recitals without further evidence, or will allow them to be contradicted.' ,,M "The highest value which was ever put upon such recitals was their recognition as evidence of the facts contained in them ; no but this sanction was denied them when they formed part of private xYcts of Parliament, which were held to be binding upon none but parties and privie-." 1 * So, in this country, the recitals in a private act are evidence only as against the persons who procured the enactment. 112 The reason for attaching such slight weight to the recitals in statutes is given in an early English case: "This recital cannot be taken to proceed but upon information, and the Court of Parliament may be misinformed as well as other Courts; none can imagine they would purposely recite a false thing to be true. . . . From hence it follows that they do not intend any one to be concluded by such recital grounded upon falsehood, for he who says to the contrary affirms that their intention is to oppress men wrongfully." 118 " When viewed as a key to the interpretation," however, it is said, with much force, " they should in reason be deemed conclusive of the recited facts ; because, whether really true or not, they explain the legislative perspective in enacting the statute, and only this is in any case gained by the inter- preter in looking at the surroundings."" 4 As to the expres- sion of opinion by the Legislature, as the inducement for an enactment, upon a matter of fact of which it is the sole 11,7 Cowell v. Chambers, 21 Beav. L. 11. 12 Ch. D., at p. 432. 619. Ui Branson v. Wirth, 17 Wall. 108 Earl of Leicester v. Ileydon, 32. See, also. Slate v. Beard, 1 Ind. Plowd. 384, 398. 460, to the effect thai recitalsinthe lu ' Wilb., p. 15. preamble of a private statute are 110 Ibid. : eit. It. v. Sutton, 4 M. admissible, and, uncontradicted & S. 532 ; R. v. Berenger, 3 M. & and unqualified, prima facie S. i;t. evidence of the truth of the 111 Cit. Brett v. Heals, Moody matters recited, between the per- & Malkin, 410 ; Taylor v. Parry, 1 son for whose relief it was passed M. cV: (!.. at p. 619; Duke of and the State. And see ante, Beaufort v. Smith, 1 Ex., at p. §284. 170; Earl of Shrewsbury v. Scott, ,1:; Karl of Leicester v. Ileydon, <;('. B. X. S., iii p. 157; Wharton ubi supra. Peerage; 12 CI. & Fin., at p. 802, ll4 Bish., Wr. L., §50. Sec, also. explained by Lord St. Leonards the Statement there, that " rccila- in the Shrewsbury Peerage, 7 II. tions in the preamble must be L. ('..at p. 13; Sturlav. Freceia, accepted as, at least, prima facie § 3 7 < '• j LEGISLATIVE CONSTRUCTION. 525* judge, as, in an act authorizing a public improvement and subjecting adjacent landholders to taxation to defray its ex- pense, that it is for the benefit of such persons, the correctness or incorrectness of such an opinion cannot, of course, be in- quired into by the courts,, but the legislative determination of it is binding upon them." r> Biite.g.,] the 36 and 37 Vict. c. 60, s. 3, would hardly, by merely reciting that " an accessory alter the fact" is "by English law liable to be punished as if lie were the principal offender," be understood as making so important a change of the law. 110 § 376. When and how Erroneous Assumption by Legislature may have Force of Enactment. — [All the instances considered, in which the effect of producing as a result, what was assumed by the Legislature to exist, was denied to its language, have been of such a character as not to compel a necessary infer- ence] that the Legislature intended to alter the law, and to make it as it was alleged to be. A different effect, however, would be given to an Act which showed, whether by recital or enactment, that it intended to effect a change. If the- mistake is manifested in words competent to make the law in future, there is no principle which can denj r them this effect (a). Such was the effect of the 4 & 5 Vict. c. 48, which enacted that municipal corporations should be ratable in respect of their property, as though it were not corporate property ; but that such property, when lying wholly within a borough the poor of which were relieved by one entire poor rate, should continue exempt from ratability "as if the Act had not passed." When the Act was passed, the general opinion was that such property was exempt; but later decisions settled that it was not. It was held that the above enactment exempted them, notwithstanding the final words, which were considered as not conveying a different and perhaps conclusively, correct;" resolutions of the Legislature, to citing Sedgw. 56; R. v. Sutton, 4 Comm'rs v. State, 9 Gill (Md.) M. £ S. 582; Elmondorff v. Car- 379- michael, 3 Litt. (Ky.) 472; McRey- m People v. Lawrence. 36 Barb. nolds v. Smallhouse, 8 Bush (Ky.) (K Y.) 177. See post, § 401. 447,456; Allison v. R. II. Co., 10 m See per Lord Chelmsford, in Id. 1; Branson v. Wirth, 17 Wall. Jones v. Mersey Docks, 11 H. L. 32. 44, and referring to R. f. C, at p. 518. Haughton, 1 Ellis & B. 501; U. S. (a) Per Cur. in P. M. Genl. v. v. Olaflin, 97 U. S. 546, and as to Early, 12 Wheat. 148. 526 LEGISLATIVE CONSTRUCTION. [§ -'177 intention (a). One ground on which tin; Exchequer Chamber held that the attesting words, "on the true faith of a Christian," of the abjuration oath wore essential parts of the oath, was that Parliament had put that construction on them, when allowing the .Jews, a few years after enacting the oath, to omit those words when the oath was tendered to them ex officio (b). [Thus, a proviso to a statute declaring an aet lawful which was so before, that nothing contained in the statute should he construed to permit the doing of some other thing within its general provisions, equally lawful before, would undoubtedly have the effect of prohibiting the latter thing for the future. 117 And conversely, where a statute in forbidding conveyances of land to be made in a particular manner, clearly indicated an intention that conveyances previously so made were to be regarded as valid, it was held operative to sustain the same. 118 So, an act imposing a penalty for the improper use of sidewalks con- strued by individuals in unincorporated villages was referred to as distinctly recognizing the right to construct the same, and thus relieving them of the objection of being public nuisances. 119 Where a constitutional provision postponed the date of the sroino- into effect of statutes " unless otherwise! provided," the fact that other statutes alluded to a certain act passed at the same session and in pari materia as being in force, was held to give it immediate effect. 128 § 377. [Even penal jurisdiction has been held to be conferred upon justices of the peace as by necessary impli- cation, by a statute expressly assuming it to exist and explicitly regulating the details of its exercise. 121 ] A Statute (a) R. v. Oldham, L. It. 3 Q. B. immoral consideration, it beingbut 474. a recognition of the principle that 1 C.eo. 1, st. 2, 10 Geo. 1. c. an instrument or obligation, given 4; Salomons v. Miller, 8 Ex. i I s . by a man to a woman with whom 111 State v. Eskridge, 1 Swan he lived in such a relation would (Tenn.) 413. not, becauseof the same, be void: 1,8 Me Arthur v. Allen, 3 Cin. L. Cusack v. While, 2 Mill (S. C.) Bui. (O.) 771. 279. »» Com'th v. Hauck, 103 Pa. St. 1S0 Swann v. Buck, 40 Miss. 530, 537. But a statute prohibiting 208. a married man from conveying to a 121 State v. Miller, 23 Wis. 634, woman with whom he lived in ttiough the decision concedes that adultery more than one-fourth of a mere unfounded assumption by hi> estate, would not be deemed to the Legislature of the existence of sanction a conlracl founded on an a particular jurisdiction would not § 378] CHANGE OF LANGUAGE. , 527 •of the United States enacted that the district court should, in certain cases, have concurrent jurisdiction with the state and circuit courts, as if (contrary to the fact) the district court had not already, and the circuit court had, jurisdiction But though the language plainly indicated only the opinion that the jurisdiction existed in the circuit court, and not an intention to confer it, this effect was nevertheless given to the Act, to prevent its being inoperative, and to carry out what was the obvious object of the Act (a). The district court could not have had concurrent jurisdiction with the circuit court, unless the latter could take cognizance of the same suits. § 378. Change of Language. — The presumption of a change of intention from a change of language, of no great weight in the construction of any documents, seems ■entitled to less weight in the construction of statutes than in any other case ; for the variation is often to be accounted for, not only by a mere desire of improving the graces of style, and of avoiding the repeated use of the same words (Z>), but from the circumstance that Acts are often compiled from different sources ; and further, from the alterations and additions from various hands which they undergo in their progress through Parliament. Though the statute is the language of the three estates of the realm, it seems legitimate, in construing it, to take into consideration that it may have been the production of many minds ; and that this may better account for the variety of style and phraseology which is found, than a desire to convey a dif- ferent intention. There is no difference between a k{ stream" and a " river " in the 24 & 25 Vict. c. 109, ss. 27, 28, (c) ; nor between " ordinary luggage" in an Act, and " personal luggage" in a by law ; (d) [nor between the words u the family of any married woman," in the body of a section of alone be sufficient to create it: ley v. Perks, L. R. 1 Q. B. 4>7, see Hersom's Case, 39 .Me. 470, ante, and Lord Abinger in R. v. Frost, § 37:!. 9 C. & P. 106. (a) P. M. Genl. v. Early, 12 (c) Rolle v. Whyte, L. R. 3 Q. 15. Wheat. 136. [Compare, on the 305. subject of implied grant of juris- ('/) Hndston v. Midland R. Co., diction, ante, §§ 155, 156.] L. R. 4 Q. B. 366. (b) Per Blackburn, J., in Had- 52S CHANGE OF LANGUAGE. f $j ^JTS- an act, and "the family of the said husband and wife,'* in a proviso thereto, the section making her liable for debts con- tracted by her for necessaries for the support and maintenance the former, and the proviso declaring thai judgmenl should not be rendered against her excepl upon proof that the con- tract was her contract, incurred for articles necessary for the latter.""! So there is no material difference between "suf- fering'' and "knowingly suffering" persons to gamble in a public bouse (a). To 'turn cattle loose" on a public thoroughfare, which is subject to a penalty by the Police Act, 2& 3 Yict. c. 47, s. .">4, is substantially identical with " leav. ing cattle " there " without a keeper," contrary to the High- way Act. 5 & 6 Will. 4, c. 50, s. 74 (5) ; and the definition in the 6 & 7 Yict. c. SG, of a hackney carriage, as a carriage plying for hire in "any public place," is identical in mean- ing with the earlier Act, 1 & '2 Will. 4. c. 22, which defined it as plying for hire in any '• street or road " (c). It may be questioned whether too much importance has not some- times been attached to a variation of language (d). An Act which enacted that " it shall and may be lawful " for a jus- tice to hear a certain class of eases under 507., and that pen- alties above that sum i% shall " (e) be sued for in the Superior Courts, was held equally imperative in both cases, even though the effect was to oust the jurisdiction of the Su- perior Courts in the former {/). So, though one section of the 3 Geo. 4, c. 39, made a warrant of attorney to confess judgment, if not filed within twenty-one days, "fraudulent and void against the assignees'' in bankruptcy of the debtor and another made it " void to all intents and purposes," if the defeasance was not written on the same paper as the warrant, it was held, notwithstanding the dissimilarity of the language, that the latter section was not more extensive than the former, but made the warrant of attorney void '-•' Murray v. Keyes, 35 Pa. St. bery, L. R. 7 Ex. 369. 384, 390. c/) Seeex. gr. H. v. South Weald, (a) 9 Geo. 4, c. Gl ; 35 & :)G 5 B. & S. 391; Exp. Jarman, 4 Vict. c. 94; Bosley v. Davics, 1 Q. Cb.D. 835. B. I). 84. (< i 25 Geo. :5, c. 51. Sec ex. gr. (6)Sberborn v. Wells, 3 B. & S. Haldaue v. Beauclerk, 3 Ex. 658; 784, 32 L. J. M. C. 179. Montague v. Smith, 17 Q. 15. 688, (c) Skinner v. Usber. L. It. 7 21 L. J. 73. Q B. 423; and see Curtis v. Em- (/) Cates v. Knigbt, 3T. R. 442. § 379] CHANGE OF LANGUAGE. 529 only as against the assignees (a). The 137th section of the Bankrupt Act of 1849, which made judges' orders, given by consent by a " trader," null and void to " all intents and purposes," unless filed, was held to have no more extensive meaning than the provision just cited of the 3 Geo. 4, c. 39. The word "trader," which is used in the same and the pre- ceding sections, was held to be confined to traders who- afterwards became bankrupt; though the word " bankrupt'" was used in all the other sections relating to the subject. All of them, however, were prefaced by the preamble that they related to " transactions with the bankrupt " (h). § 379. It has been seen that the change of language in the later of the two statutes on the same subject has sometimes the effect of repealing the earlier provision by implication (3. and Roberts v. Egerton, L. K. 9 (d) Hvde v. Johnson, 2 Bing. N. Q. B. 494, 43 L. J. M. C. 12!) and C. 776. 135. lss McMicken v. Com'th, supra, (b) It. v. North Collingham, 1 B. ante, § 381. & (!. 578; It. v. Great Bolton, 8 139 See Ford v. Ford, 143 Muss B. & C 71. 577, ante, § 380. (c) Per Best. J., in R. v. N. 140 As to the presumption against Collingham, ubi sup,. Sec other retrospective operation: see Gaston illust. in Lawrence v. King, 1;. R. v. Merriam, 33 Minn. 271, ante, 3 Q. B. 345 ; Exp. Gorely, 4 DcG- § 381. .1. & S. 477 : dale v. Laurie, 5 B. & 1U See, for an instance, It. v. L56; Cornhill v.Hudson,8 E.& 15. Llangian, 4 B. & S. 249 ; 32 L. J. M. C. 225, ante, § 199. §385] CONSTRUCTION IN BONAM PARTEM 537 tioiuil. 1 " Thus wlien an act subjected certain vegetable substances "used for cordage" to duty, and a later act enumerated as dutiable the same substances, without adding: the qualifying words " used for cordage," the court refused to supply the same.' 43 So, where an act prohibited the carrying of concealed weapons, with an exception as to per- sons journeying out of the state, and a later act, covering the whole subject-matter of the former and consequently repealing it, omitted this exception, it was held to be wiped out. 144 Again, where the later of two acts upon limited partnerships omitted the infliction, prescribed by the earlier, of a penalty for the omission of certain matters required by both, the court said : " we must presume that the [earlier] act . . and the decisions under it were well known to the law-makers at the time the [later] act . . was passed. The -omission to prescribe the penalty . . is good reason for concluding that no such liability was intended. 145 As applied •to the construction of revisions and codifications and their effect upon such portions of the older enactments incorpo- rated in them, which they do not reproduce, the effect of their omission has been already considered. 140 Unlike a mere change in the phraseology, such an omission, which cannot of course be supposed to have been unintentional, 147 is, in .general to be regarded as a repeal of the omitted acts or pro- visions, and the courts are not at liberty to revive them, by construction. 148 ] § 385. Words construed in Bonam Partem. — It is said, and in a certain and limited sense truly, that words must be taken in a lawful and rightful sense. When an Act, for instance, gave a certain efficacy to a fine levied of land, it meant only a fine lawfully levied {a). . The provision that a judgment 142 Woodbury v. Berry, 18 Ohio Creditors, 11 La. An. 470 ; Buck St. 456. And comp. ante, $ 16. v. Spofford, 31 Me. 34 ; Filigree v. 143 Wills v. Russell, 100 U. S. Snell, 42 Id. 53: Broaddus v. 621. Broaddus, 10 Bush (Kv.) 29!) ; 144 Poe v. State, 85 Term. 495. Campbell v. Case, 1 Dak. 17; 145 Eliot v. Ilimrod, 108 Pa. St. Tafoya v. Garcia, 1 N. M. 480 ; 569, 573. See, also, ante, § 199. and eases in preceding notes, and 146 See ante, §§ 201-203. ante, £g 195-196. 201, 202. 147 State v. Clark. 57 Mo. 25. (a) Co. Litt. 381b ; 2 Inst. 590. 148 See Ellis v. Paige, 1 Pick. [And "entitled" means legally (Mass.) 43, 45 ; Blackburn v. entitled : ante, p. 155, note (0). Walpole, 9 Id. 97 ; Stafford v. See also § 44.] 538 CONSTRUCTION IN BONAM PARTEM. [§385' in the Lord Mayor's Court, when removed to the Superior ('.>iirt. shall have the same effect as a judgment of the latter, would not apply to a judgment which the inferior tribunal had no jurisdiction to pronounce (a). So, an Act which requires the paj T ment of rates as a condition precedent to the exercise of the franchise would not be construed as exclud- ing from it a person who refused to pay a rate which was illegal, though so far valid that it had not been quashed or appealed against (b). A statutory authority to abate nuisances would not justify an order to abate one, when it could not be obeyed without committing a trespass (c). A highway surveyor, who is required by the Highway Act of 1862 to "conform in all respects to the orders of the board in the execution of his duties," is, like the clergyman who had sworn canonical obedience to his bishop (d), bound to obey only lawful orders, which his superior has authority to give ; so that he is personally liable for his act, if the board had no jurisdiction to make the order under which he did it (e). The 199th section of the Companies Act, 1862,. providing for the winding up of companies of more than seven members not registered under the Act, applies only to companies which may be lawfully formed without regis- tration, but not to those which are prohibited unless regis- tered {/). [Perhaps, upon this ground, as well as that of a presumption against an intended operation beyond the im- mediate or specific object of the enactment, rest the decis- ions that an act validating certain sales made by persons in a fiduciary capacity in whose appointment or qualification there existed some defect or irregularity, cured only defects in proceedings of such courts as had jurisdiction of the sub- ject-matter, and did not validate a sale made by a trustee who was irregularly or defectively appointed or qualified by a court, that had no jurisdiction to make such an appoint- ^j Bridge v. Branch, 1 C. P. D. borough, 1 Ex. I). 344. C33. 00 Long v. Grey, 1 Moo. N. S. (b) R. v. Windsor (Mayor of), L. 411. R. 7 Q. IJ. 1)08. Sec, also, Bruyeres (e) Mill v. Hawker. L, R. 10 Ex. v. Halcomb, ■ • A. & E. 381. if-' ; comp. Dews v. Riley, 11 C B. (c) Publ. Health An. 1875. 38 & 434, 2 L. M. & P. 514. :;:i Vict. c. 55; Mayor of Scar- (/)/•'< Padstmv, etc., Assoc. 20 borough'v. Rural Authority of Scar- Ch. D. 13?, 51 L. J. 345. §§ 380, 387] MULTIPLICITY OF WORDS. 530 ment ; 149 that an act declaring in force all ordinances of a city or other corporation " in operation " at the date of its passage, did not embrace one which had before been judi- cially pronounced inoperative ;' f, ° and that an act authorizing the conveyance by a certain county to the state of such lands as the former should then hold by virtue of tax deeds issued upon sales for delinquent taxes theretofore made, was inapplicable to lands of which the tax deeds held by the county were void on their faces, though there were no lands to which the act, thus construed, could apply. 1 "] § 3S6. Multiplicity of Words. — Where words have each a separate and distinct meaning, its exact sense ought, prima facie, to be given to each ; for the Legislature is not supposed to use words without a meaning. But the use of tautologous expressions is not uncommon in statutes. Thus, an Act which makes it felony "falsely to make, alter, forge, or counterfeit" a bill of exchange, gains little in strength or precision by using four words where one would have sufficed. It cannot be doubted that he who falsely makes, or alters, or counterfeits a bill is guilty of forging it (a). [It is not per- missible, therefore, to wrest words from their proper and legal meaning, simply because they are superfluous; 162 just as it is unsafe, in the construction of a special act, to depart from the plain meaning of its language in order to give it any other effect than that of an express affirmation of a duty which would otherwise have been implied. 153 ] § 387. Same and Different Meanings in Same Word. — It has been justly remarked that, when precision is required, no 149 Halderman v. Young , 10T to constitute a board of health, Pa. St. 324. etc., was held to authorize the 150 Allen v. Savannah, 9 Ga. appointment of a woman.) And the 286. limitation to twenty days of the 151 Haseltine v. Hewitt, 61 Wis. time within which a certiorari 121. And see ante, § 115. A might he taken to the judgment of general statute relating to gaming, a justice of the peaee was held to giving an aetion to recover money apply only in cases where the jus- lost at gaming to the loser or " any tice had jurisdiction: Graver v. other person," does not include Fehr, 89 Pa. St. 460, 464 ; and see the wife of the loser, but means Lacock v. White, 19 Id. 495. persons competent to sue : Moore (a) Teainu's Case, It. &, R. 33. v. Settle, 82 Ky. 1ST. (See 1M Hou^h v. Windus, L. R. 12 Opin. of Justices, 136 Mass. Q. B. D. 229. 578, where an act authorizing the )5S See Morris, etc., Co. v. governor to appoint nine person* State, 24 N. J. L. 62. 540 MULTIPLICITY OF WORDS. [§ 337 safer rule can be followed than always to call the same thing by the same name {a). [" It is the bungling attempts of the penman to say the same thing in different words, which so frequently involves the meaning of the Legislature in uncer- tainty." 166 ] It is, at all events, reasonable to presume that the same meaning is intended lor the same expression in every part of the Act (I). But the presumption is not of much weight In the 12 & 13 Vict. c. 96, for instance, which makes any "person" in a British possession charged with any crime at sea liable to be tried in the colony, and provides that where the offence is murder or manslaughter of any "person' 1 who dies in the colony of an injury feloniously inflicted at sea, the offence shall be considered as having been committed wholly at sea; the word "person" would include any human being, when relating to the sufferer, but would, as regards the offender, include only those persons who, on general principles of law, are subject to the juris- diction of our Legislature, and responsible for their acts (c). In the enactment which makes it felony for anyone, " being married," to " marry " again while the former marriage is in force, the same word has obviously two different meanings, necessarily implying the validity of the marriage in the one case, and as necessarily excluding it in the other {r dispossession ; in which cases the forfeiture goes to the benefit of the party wronged (c). [A difference is said to exist between a forfeiture at common law, and a forfeiture given by statute ; the former operating to change the property only after some step taken by the Government to assert its title; the latter divesting tbe thing forfeited, and vesting it in the Government, etc., immediately or upon the performance of some future act, according to tbe will of the Legislature, — immediately where no future time or act is pointed out by tbe statute, so as to bar any action or defence to which tbe offender would otherwise, as owner, be entitled. 161 ] When a" second offence" is the subject of distinct punishment, it is an offence committed after convict ion of a. first (d). [And, it may here be added, interest of a turnpike company in a turnpike is included under •• property " in a taxing act. So improved land was held to include ground appropriated for a railroad : Road in Lancaster, <;s Pa. St. 396; improvements, under mechanics' lien laws, to include repairs and additions : Getcbell v. Allen, 34 Iowa, 559 ; and see Schmidt v. Armstrong, 72 Pa. St. 855: hut not ordinary houses, under an act relating to improve- ments, etc.. in \ oiks erecti d on colliery leaseholds •. Schenley's App., 70 Id. 98; and the "im- provement " of a street, in an act requiring notice before the pas of an ordinance for that purp was held to include its vacation : State v. Chambersburg, '■'>'■> N. J. I. 257. 159 An affidavit is an oath iu writing, made before and attested by one who has authority to administer the same : Knapp v. Duclo, 1 Mich. 2 Inst. 468. fBish., Wr. L.. 8 240, cit. People v. Butler, 3 Cow. (X. Y.) 347.] § 3S91 PARTICULAR EXPRESSION-. 543 the "same offence," as used in a constitutional provision, forbidding a person to be twice put in jeopardy of life and limb for the same offence, means the same both in law and fact, so that, where an act is an offence by the articles of war and also by the criminal law, a trial and acquittal upon a charge of it by a court-martial will not shield the perpetrator from indictment for it.' M J When a statute requires that something shall be done " forthwith," or ''immediately," or even "instantly," it would probably be understood as allow- ing a reasonable time for doing it (a). An application to deprive a plaintiff of costs, which must be made " at the trial/' was deemed made in time, when made an hour after the trial was over, and the judge was trying another cause (h). § 3S9. Day, Week, Month, etc. — Half a year consists of 182, and a quarter of 91 days (o). The word ''month" means calendar month, 163 unless words be added showing lunar month to be intended (/./). [A. " day " means the whole of 2-1 hours from midnight to midnight. 164 ] It used to be laid 162 U. S. v. Caslrcl, 1 Hugh. 552. See § 517. note 12. (a) See Toms v. Wilson, 4 B. & 8. 455. 32 L. J. 33 & 282 ; Fors- dike v. Stone, L. R. 3 C. P. 607 ; per Cockburn, C. J., in Griffith v. Taylor, 2 C. P. D. 202 ; Mussey v. Sladen, L. R. 4 Ex. 13; H. v. Aston, 1 L. M. & P. 491. Comp. Exp. Siilence, 47 L. J. Bkcy. 87 ; Gibbs v. Stead, 8 B. & C. 533 ; Tennant v. Bell, 9 Q. B. 684. (b) Jud. A. 1875, ord. 55 ; Kynaston v. Mackinder, 47 L. J. Q. B. 76. See, also, Pasje v. Pearce, 8 M. & W. 677. Comp. R. v. Berks, 4 Q. B. D. 469. [Compare ante, § 247 — In an act concerning the licensing of the sale of liquors in a certain county, and providing that it should go into effect if a majority of the voters of said county should so determine, it was held that this meant a major- ity of the voters voting on that subject at a general election : Walker v. Oswald (Md.) 11 Centr. Rep. 12:;. Sec State v. Haves, 61 N. II. 264. 330, for the principles of construction of an act of similar kind, as to whether it was to be construed a delegation of legisla- tive power.] (c) Co. Litt. 135b; 5 Rep. 61 ; 20 Ja'c. 166. [Comp. Bish., Wr. L., § 106: "A year . . embraces 365 days, or 301), according as the par- ticular year in question happens to be a leap year or not. Still the meaning of this term may vary with the subject and the evident intent :" cit. EDgleman v. Stale, 2 Ind. 91 ; Paris v. Hiram. 12 .Mass. 262 ; Thornton v. Boyd, 25 Mi^s. 598; Bartlett v. Kirkwood, 2 Ellis & B. 771.] 163 Hunt v. Holden, 2 Mass. 170; Avery v. Pixley, 4 Id. 460; Churchill v. Bank, 19 Pick. (Mass.) 532 ; Brudenell v. Vaux, 2 Dall. (Pa.) 302 ; Com'th v. Chambre, 4 Id. 143 ; Moore v. Houston. '■', Serg. & It. (Pa.) 144; Gloss v. Fowler. 21 Cal. 392 ; Bish., Wr. L., § 105, and cases there cited. And see Snyder v. Warren, 2 Cow. (X. Y.) 518 ; Parsons v. Chamberlain, 4 Wend. (N. Y.) 512; People v. New York, 10 Id. 393. (d) 13 & 14 Viet. c. 21. s. 4. 164 Zimmerman v. Cowan, 107 111. 631; Kane v. Com'th, 89 Pa. 544 PARTICULAR EXPRESSIONS. [§ ^89' down as a general rule that courts refused to take notice of the fraction of a day, for the uncertainty, which is always the mother of confusion and contention (a); and in civil cases, a judicial act, such as a judgment, is taken conclusively to have heen done at the first moment of the day (b). But as regards the acts of parties, including, in this expression,. acts which, though in form judicial, are in reality the acts of parties, the courts do notice such fractions, whenever it is necessary to decide which of two events first happened (c). Thus, they will notice, the hour when a party issued a writ of summons, or filed a hill, or delivered a declaration, or the sheriff seized goods (d). A person who was keeping a dog at noon without a license would not escape from conviction by procuring a license at one p.m. (e). Where the title oi the Crown and of the subject accrue on the same day, the title of the Crown is preferred (/). [The doctrine that the law knows no fraction of a day, has, in general, been adhered to in this country, 1 " both as to contract rights and statutes. So, in regard to a statute relating to the riling of affidavits of renewal of mortgages,' 08 or affidavits of defence, 167 or to the service of notkes, 168 or the assessment, of taxes. 100 But, both as to contracts and statutes, the rigidity of this rule has been much relaxed, and the same has, indeed, been said to be inapplicable, in cases where the purposes of justice St. 522 (prohibiting liquor selling ((/) 2 Lev. 141, 170 ; and per Cur. on the day of a public election), in Edwards v. Reg., 9 Ex. 028. See post, § 534. (e) Campbell v. Strangeways, 3 (a) 3 Rep. 86a ; Clayton's case, 5 C. P. 1>- HIT. Rep lb. (/)R- v. Crump, 2 Ves. 295; 2 (b) Shelly 's case. 1 Rep. 98; Shaw, 481; R. v. Giles, 8 Pri. 293 ; Wright v. .Mills, 4 11. & N. 488, 28 Giles v. Grover, 9 Bine. 128 ; \j. J. Ex. 223. Edwards v. R., 9 Ex. 028 ; 23 L. J. (c) Per Grove. J., in Campbell v. 10"). Strangeways, 3 C. P. D. 107; per 165 Sec Bish., Wr. L., § 108. Lord Mansfield in Combe v. Pitt, Also Zimmerman v. Cowan, 107 3 Burr. 1434; per Patteson, J., in 111.031. Chick v. Smith, 8D6wl. 337 ; per '^Grillin v. Forrest, 49 Mich. Cur. in Edwards v. Reg. 9 Ex. 628', 309. 23 L. J. 105 ; Thomas y. Desanges, 1(i " Duncan v. Bell, 28 Pa. Si. "2 B. & A. 286 ; Sadler v. Leigh, 4 510. But see Brim v. David, 1 Camp. 197; Woodland v. Fuller, Bro. (Pa.) 323. 11 A. &E. 859 ; Tomlinson v. Bui- ,cs Dully v. Ogden, 04 Pa. St. lock, 4 Q. B. D. 232; Clarke v. 240. Bradlaugh, 8 Q. B. D. 03, 51 L. J. 189 Plowman v. Williams, 3. 1. See further, post, §§ 497, 498. Tenn. Ch. 181. § 389] PARTICULAR EXPRESSIONS. 545 require the court to notice fractions of a day ; 170 and, of course, where a case turns upon the question of priority of one act over an other, the party on whom the burden of proof lies, fails, if he merely shows that both were done on the same day. 171 [No such rule applies as to fractions of a week. 173 Prima facie, a week is a definite period of time, commencing on Sunday and ending on Saturday ; 173 or, at least, according to more general acceptation, a period of seven days. Thus. where an order of court required commissioners, appointed on an application for the division of a township, to give certain notices by publication in newspapers, " three weeks before the time " of their meeting, it was held that three insertions in three successive weeks, but within less than twenty-one days before the meeting, was not a compliance with the order ; 174 and a statutory requirement of publication for three weeks successively, has been held to mean a publi- cation for twenty-one days, and not satisfied by three insertions in three successive issues of a weekly paper, published, the last within sixteen days of the first. 175 There is said to be a difference, however, between a requirement of the kinds just referred to, and one that calls for publication "during a given number of successive weeks," or " by a given number of insertions in newspapers in successive weeks," 176 not appar- ently contemplating publication of a certain duration before the doing of the act conditioned upon the notice thus provided. So, where a statute required publication of notice for six weeks successively, once in each week, 177 or for six successive 1.0 See Cine. B'k v. Burkhardt, m He Norlh Whitehall Tp. 100 U. 8. 686; Cromelien v. Brink, supra, cit. Early v. Hornans, 16 29 Pa. St. 522, 526 ; Hampton v. How. 610. Erenzeller, 2 Bro. (Pa.) 19; Plow- " 5 Loughridge v. Huntington, 56 man v. Williams, supra; Neale v. Ind. 258. And see Meredith v. Utz, 75 Va. 480. And, as to Chancey, 59 Id. 466. commencement of statutes, see I16 lie North Whitehall Tp., post, § 498, and of constitution, supra, at p. 160. Uomp. Build'g post, § 534. Ass'n v. Thompson, 13 Phila. (Pa.) 1.1 Richards v. Fox, 52 N. Y. 511. Super. Ct. 36. l " Olcottv. Rohinsou, 21 N. Y. »* Re North Whitehall Tp., 47 150 ; Wood v. Morehouse, 45 Id. Pa. St. 156, 161. 368 ; and see Sheldon v. Wright. 7 1,3 Ronkcndorff v. Taylor, 4 Pet. Barb. (N. Y.) 39. 861. 35 5-itJ COMPl rATION OF TIME. [§ 390 weeks, 1 ' 8 it was held that the notice was sufficient if published in six successive nnmbersof a weekly paper, though the first publication was less than six weeks before the event;' 79 nor, of course, does the fact, that, between the date of the first and that of the last appearance of the notice, the publication of the newspaper is changed from one day in the week to a subsequent day in the same week, affect its sufficiency. 180 ] §390. Computation of Time. — In the computation of time, distinctions have been made by the Courts which were founded chiefly on considerations of convenience and justice. The general rule, anciently, seems to have been that both terms or endings of the period given for doing or suffering something were included ; but when a penalty or forfeiture was involved in non-compliance with a condition within the given time, the time was reckoned by including one and excluding the other of the terminal days (a). A distinction was afterwards made, depending on whether the point from which the computation was to be made was an act to which the person against whom tin; time ran, was privy or not. ISI Thus, if the time ran from when he was arrested, or received a notice of action, it might justly be computed as including the day of that event; but not so, if it ran from the death of another person (b) ; a fact of which he would not, as in the previous cases, necessarily be cognizant. But it has also been laid down that when a period of time allowed to a per- son is included between the dates of two acts to be done by another person, as where it is enacted that no action shall be brought against a justice until notice of the intention to bring it has been given to him a month before the writ is i-sucd, both the terminal days are to be excluded (c). The notice having been given on the 2Sth oi April, the action, it 118 Stoever's App., 3 Watts & S. Garland, 15Ves. 247 ; per Parke, B.. (Pa.) 154. in Young v. Higgon, (i M. & W. 179 Sec, also, Pearson v. Bradley. '>'■'>: Newman v. Hardwicke, 3 JS"ev. 44 111. 2r>0 ; Fry v. Bidwell, 7 I Id. & P. 368. 381. (c) Per Alderson, B.. in Young t. 'so Stoever's App., supra. Higgon, 6 M. A: W. 53. See Pel- fa) De Morgan, Oomp. Aim. cited lew v. Wonford, 9 B. & C 134; in SirG. C. Lewis' Obs. and Reas. Blunl v. Heslop, 3 New & P. 553, in Politics, 1, 387n. 8 A. & E. 124; R. v. West Riding, 'si See Hodgson v. Roth, 33 Lu. 4 B. & Ad. 085 ; Weeks v. Wray, An. 941. L. It. 3(2.B. 312. (M I; r Sir T. Grant in Letter v. §390] COMPUTATION OF TIME. 547 was held, was rightly brought on the 29th of May ; what was requisite was that two days of the same number should not be comprised in the computation (a). [On the other hand, it was held in Pennsylvania, under a statute of entirely similar purport, that the proper rule was to include the first day and exclude the last ; IM so that, the notice having been o-iven on May 19, suit was held properly commenced on June 18. 1M A distinction has also been drawn between the computation from and act done and from a particular day, in the former case the day upon which the act was done being included, in the latter excluded. 184 But this "shadowy dis- tinction " has been said to be exploded, 185 while the differ- ence between an act to be done before, and one to be done after the expiration of a given number of days, is said to be equally insubstantial. 188 However this may be, none of the distinctions indicated seem to have been generally in this country conceded to have much or controlling weight, and whilst the decisions cannot be said to be in perfect accord, the weight of authority seems to be, that one of the termi- nal days should be excluded, 187 and that, in general, this should be the first day. 189 (a) Freeman v. Read, 4 B. & S. 174. 32 L. J. M. C. 226. See. also, Webb v. Fairmauner, 3 M. & W. 473; R. v. Price, 8 Moo. P. C. 203; Migotti v. Colville, 4 C. P. D. 233, 48 L. J. 605; lie Southam, 19 Ch. D. 169, 51 L. J. 207. 18i Thomas v. Afllick, 16 Pa. St. 14. "3 Ibid. 184 Castle v. Burdett, 3 T. R. 623; Arnold v. U. S., 9 Cranch, 104 ; Atkins v. Sleeper, 7 Allen (Mass.) 487; Handley v. Cunning- ham, 12 Bush (Ky.) 402. lea Cromelien v. Brink, 29 Pa. St. 522, 524. 186 See Thomas v. Afflick, supra, at p. 15. 181 Stebbins v. Anthony, 5 Col. 348 ; Com'th v. Maxwell, 27 Pa. St. 444. 188 See Columbia Turnp. Road v. Haywood. 10 Wend. (N. Y.) 422 ; Misch v. May hew, 51 Cal. 514 (three days) ; Brown v. Buzon, 24Ind.l94; Catterliu v. Frankfort, 87 Id. 45; Reigelsberger v. Stapp, 91 Id. 311; Kerr v. Haverstick, 94 Id. 178; Beckwith v. Douglas, 25 Kan. 229; English v. Williamson, 34 Id. 212; Cable v. Coates, 36 Id. 191; White v. German Ins. Co. 15 Neb. 600; McGavoek v. Pollack, 13 Id. 535 ; Cook v. Moore, 95 N. C. 1 ; and see Walsh v. Boyle, 30 Md. 262. This was the rule in Pennsylvania, under Goswiler's Est., 3 Pen. & W. 200 ; but this case was over- ruled by Thomas v. Afflick, supra, and Barber v. Chandler, 17 Pa. St. 48, the decisions in which were regretted in Cromelien v. Brink, supra, at pp. 524, 525. By act of assembly, however, of 20 June, 1883, the rule in Goswiler's Est. is re-instated : Edmundson v. Wragg, 104 Pa. St. 500. In sup- port of the same rule are cited, in Cromelien v. Brink, supra, at p. 525, the following cases: iloman v. Liswell, 6 Cow. (N. Y.) 659; Exp. Dean, 2 Id. 605 ; Cornell v. Moul- ton, 3 Denio (N. Y.) 12 ; People v. 54 - (')MITTATION OF TIME. L§ 391 391. | A few generally recurring phrases may be noticed here. Where time is to lie computed " from " or " after " the day of a given date — and there is said to be no differ- ence between "from the date" and " from the day of the date" 18 ' — that day is, in general, to be excluded from the computation. 100 [Where a statute required thirty days' publication "before" the day of sale, the day of publication was held to he included in the computation. 191 So, where the requirement was three months' service " previous" to the first day of the term. 192 But under an act requiring notices to be posted four weeks " previous " to the day of sale, a sale on May 14, the notice having been posted on April 1(5, was held premature. 193 | An order requiring the filing of a bill of exceptions, etc., "by" a certain date, was held complied with by filing it on that date. 104 ] Again, when so many "clear days" (a), or so many days " at least" (h), are given to do an act, or "not less than " so many days are to intervene, both the terminal days are excluded from the computation. [And so, where an act required thirty days' notice of a tax sale, and provided that " said day of sale shall be after the expiration of thirty days' notice,"' it was held that both the day of giving notice, or of Sheriff, 19 Wend. (X. Y.) 87; Portland B'k v. Maine B'k, 11 Mass. 304 ; Bigelow v. Wilson, 1 Pick. (Mass.) 4N5; Yarin v. Edmon- son, Id 111. 270 ; Weeks v. Hull, 111 Conn. 376; Carson v. Love, 8 Yerg. (Tenn.) 315. See Pugh v. Duke of Leeds, Cowp. 714; Cromelien v % Brink, 29 Pa. Si. 522, 524. 190 See Bemis v. Loonanl, 118. Mass. 502 ; Good v. Webb, 52 Ala. 452 ; Wood v. Com'th, 11 Bush (Kv.) 220 ; Handler v. Cunning- bam, 12 Id. 402; Bish., Wr. L., 7: 31a; post, s, 498. 191 Northrop v. Cooper, 23 Kan. 432 ™ English v. Ozburn, 59 Ga. 392 "8 Ward v. Walters, 63 Wis. 39. And sec Dousman v. O'Malley, 1 Dougl. (Mich.) 450, where, under a. statute requiring thai process should he served a certain number of days before the return day, both the day of service and I hat of return were held excluded, the former by the rule of construction prescribed by Rev. St. 3. § 3. subd. 11, and the latter by the terms of the act. And see O'Connor v. Towns, 1 Tex. 107. 194 Higley v. Gilmer, 3 Montana, 433. A statute authorizing plain- tiff to take a judgment by default on the third Saturday following the return day of the original writ, unless an affidavit of defence be "previously" tiled by defendant, is held to give the latter the whole of the third Saturday lor the filing of the affidavit: Gillespie v. Smith, 13 Pa. St. 05. See Endlicb, Aff. of Def., §§ 349-353. (a) Liffen v. Pitcher, 6 Dowl. N. S. 707. (6) Zoueh v. Empscy, 4 B. & A. 532 ; R v. Salop, 8 A. & E. 173. § 392] COMPUTATION OF TIME. 549 first publication, and the day of sale were to be excluded. 19 * On the other hand, under a statutory provision requiring, in courts whose terms were held oftener than twice a year, a space of at least twelve months to intervene between the term at which a suit was returned and that at which judgment was entered therein, a judgment rendered at a term commencing February 10, 1868, in a suit which was returned to a term commencing February 11, 1867, was sus- tained. 196 And a provision of the New York Code directing service of citations from the Surrogate's Court " at least eight days before the return day thereof " was held controlled by another provision of the same code providing that the time within which an act is required by law to be done is to be computed by excluding the first and including the last day ; -and consequently service, on the twelfth of the month, of a citation returnable on the twentieth, was held sufficient. 197 § 392. [When any matter is required to be done " within " a certain number of days, the day that is the starting point is excluded. 198 Thus, under an act allowing lands sold for taxes to be redeemed within two years, a redemption on June 10, 1852, of lands sold on June 10, 1850, was in time. 190 So, where the time prescribed for redeeming aright in equity sold on execution was " within one year next after the time " of the execution of the deed to the purchaser, the day on which the deed was executed was excluded. 500 The three months, given by statute, after the expiration of a year, ■within which a debtor might redeem lands sold on execution, were held to begin running on the day succeeding the expiration of the year. 201 A delinquent tax list filed July 4, 195 Steuart v. Meyer, 54 Md. 454. (1ST. Y.) 87. See, to same effect, as 196 Manning v. Kobn, 44 Ala. to the right to appeal '"within" 343. thirty days: Gallt v. Finch, 24 How. 191 Be Carhart, 2 Demarest Pr. (N. Y.) 193. But see the cou- (N. Y.) 627 ; 67 How. Pr. 216. trolling statutory provision, ante, And see State v. Gasconade, 33 § 392, ife Carhart, 2 Demarest, 627. Mo. 102. So, under a requirement, to pay an 198 Thorne v. Mosher, 20 N. J. assessment within a certain num- Eq. 257 : Barcroft v. Roberts, 92 ber of days after notice, the day N. C 249, and cases infra. on which notice readies the party 199 Cromelien v. Brink, 29 Pa. is excluded : Protect'n Life Ins. St. 522. Co. v. Palmer, 81 111. 88. And as 200 Bigelow v. Wilson, 1 Pick, to right of appeal within 10 days, (Mass.) 485. see Hursh v. Hursh, 99 Ind. 500. People v. Sheriff, 19 Wend. 550 t OMPCTATION OF TIME. [§395 is filed within live (lavs of the beginning of a term com- mencing on July i) ; 202 and where a city ordinance permits hogs taken up to be redeemed within five days, the day on which they are taken is not to be counted. 203 So, under an act permitting a party arrested on execution to give bond conditioned for his taking, within one year from the day of li is arrest, the poor debtors' oath, or, in default thereof, to surrender himself, on the next day after the expiration of the year, to the keeper of the jail, the day of arrest was held to be excluded ; so that, after an arrest on November 22, of one year, a surrender on November 23 of the next year satisfied the condition. 204 Under an act requiring- a person desirous of contesting an election, to file his reasons with the county clerk " within thirty days" after the election, a filing within the last twenty-four hours, though after the prescribed office hours, was held sufficient. 206 ] A continuing act, such as trespass or imprisonment, dates, in the computation of the time allowed for bringing an action in respect of it, from the day of its termination (a). So, a bankrupt remaining abroad with intent to defeat his creditors commits a fresh act of bankruptcy every day (b). § 393. Sundays are included in computations of time, except when the time is limited to twenty-four hours, in which case the following day is allowed (c). Thus, where 202 p r i or v< people, 107 111. 628. 203 White v. Haworth, 21 Mo. App. 439. 304 Odiorne v. Quimby, UN. H. 224. Comp. Henry v. Carson, 59 Pa. St. 297, as to the meaning of the phrase "die within ten years," as " inside of ten years." 205 Zimmerman v. Cowan, 107 111. 031, the direction in the Stat- ute requiring the clerk to keep his office open from 8 a.m. to 6 p.m., being held merely to make this a minimum requirement, and not to affect his right or power to do business during any other hours of the day. Sec ante, § 365, note. (a) Massy v. Johnson, 12 East, 67 ; Hardy v. Ryle, 9 B. & C. 603; Collins v. Rose, 5 M. & W. 194; Pease v. Chaytor, 3 B. & S. 620; Whitehouse v. Fellowes, 10 C. B. N. S. 765. See, however, Wallace v. Blackwell, 3 Drew. 538; Eggington v. Lichfield, 5 E. & B. 100^ 24 L. J. 360. As to continu- ing nuisance, see cases in Batlishill v. Reed, 18 C. 13. 896, 25 L. J. 290, and Whitehouse v. Fellowes. 10 C. B. N. S. 765, 30 L. J. 305. Encroachment, Coggins v. Ben- nett, 2 C. P. D. 508. (b) Exp. Bunny, 1 De Gex & J. 309, 26 L. J. Hey. 83. [Comp. Schepp v. Reading, 2 Woodw. (Pa.) 460, ante, § 353, note.] (c) Burn's J., Tit. Lord's Day. [Bish., Wr. L., 1 110c: " Where . . the law gives a certain number of hours for the performance of an act, those even of an intervening Sunday are to be left out from the 393] COMPUTATION OF TIME. 551 an Act required that a recognizance should be entered into in two days after notice of appeal, and the notice was given on a Friday, it was held that recognizances on the following Monday were too late; though Sunday was the last day, and they? could not he entered into then (a). Of course, when an Act expressly excludes Sunday, the days given for doing an act are working days only (b). [It is said, 206 however, in this country, that, to some extent, Sundays are excluded even where the time given is measured by days, especially where their number is less than a week ; 207 as where a city charter required six days' publication of notice of the filing of the assessment roll ; 208 or where an act required justices of the peace to render judgment in three days ; 20 * or gave four days for the entry of an appeal, 210 or made a short sum- mons from a justice's court returnable in two days. 211 But where the period is a longer one, intervening Sundays are, in genera], to be counted in. 212 Nor does a statutory provis- ion, that, where the last day falls upon Sunday it is to be excluded, change this rule as to intervening Sundays. 213 The rule, that, where the last of a certain number of days allowed for the doing of an act falls on Sunday, the act may be done on the next day, 214 has been by statute, in many states, made count ; the person being allowed hours wherein itis lawful to act," — citing Mengv. Winkleman, 43 Wis. 41; Coin'th v. Intox. Liquors, 97 Mass. (501, etc.; but referring to Franklin v. Holden, 7 R. I. 215.] (a) Exp. Simpkins, 2 E. & E. 392, 29 L. J., M. 0. 23 ; Peacock v. Reg., 4 C. B. N. S. 264, 27 L. J. 224. (h) Pease v. Norwood, L. R. 4 C. P. 235; Exp. Hicks, 20 Eq. 143. 206 Bish., Wr. L., § 110c. 207 See Chicago v. Iron Works, 93 111. 222, and other cases cited in Bish., Wr. L., § 110c, note 4. 208 Chicago v. Iron Works, supra. 209 Hodgson v. Bank'g House, 9 Mo. App. 24. 210 Neal v. Crew, 12 Ga. 93. 211 Simonsou v. Durfce, 50 Mich. 80. But see Cressey v. Parks, 75 Me. 387, where, under a statute providing for the sale of property seized for taxes, after being kept lour days, it was held that the day of seizure should be excluded, but an intervening Sun- day included, and the property sold on the fourth day unless that fell upon Sunday, when it must be sold on the next day. 212 Conklin v. Marshalltown. 66 Iowa. 122 ; Goswiler's Est., 3 Pen. & W. (Pa.) 200; Edmundson v. Wragg, 104 Pa. St. 500; Bish., Wr. L., § 110c, and cases there cited in note 6. Not, however, it seems in Missouri : See Kellogg v. Carrico, 47 Mo. 157 ; Nat'l B'k v. Williams, 46 Mo. 17 ;see, also, State v. Judge, 29 La. An. 223. and coinp. Pierce v. dishing, 33 Id. 401. 213 Natl B'k v. Williams, supra. 2u Negotiable paper is an excep- tion to this rule: Edmundson v. Wragg, 104 Pa. St. 500, 503. 552 COMPUTATION OF DI8TANCE8. [§§394,395 a rule of statutory construction ; a " but it appears, even with- out such distinct enactment, to be very generally recognized as such. 91 "] 8 394. Periodical Recurrences — If the statute require some act to be done periodically and recurrently once in a certain space of time, as, for instance, the inspection of the boilers of steamers once in six months, it would probably be under- stood to mean that not more than six months should elapse between the two acts. It would not be satisfied by dividing the year into two equal periods, and doing the act once in the besnnninjr of the first, and once at the end of the second period (a). An Act which imposed a penalty for absence for more than a certain time in any one year, means not a calendar year computed from the first of January, but a year computed back from the day when the action for the penalty was brought (b). § 395. Computation of Distances.— Distances were formerly measured by the nearest and most usual road or way (c); and this is undoubtedly the popular manner of measuring them (d). But if the nearest practicable mode of access were adopted, should it be a carriage-way, or a bridle path, or a footpath ? If the way were by a tidal river, the distance might vary every hour of the day (e). Where there is nothing in the statute to lead to one construction or to another, convenience alone is the guide in such a question {/). It is to be presumed that the Legislature intends the 816 See, e. g., Brainardv. Norton, (d) Per Coleridge, J., in Lake v. 14 111. App. 643. Butler, 5 E. & B. 92, 24 L. J. 273. 1(16 See Gibbon v. Freel, 65 How. [The Pennsylvania Act 19 May, Pr. (N. Y.) 273 ; Goswiler's Est., 1887, P. L. 134. provides for coin- supra; Edmundson v. Wragg, putation of mileage for jurors, 3upra ; Cressey v. Parks, 75 Me. witnesses, etc., to the county seat 387; English v. Williamson, 84 by the route usually traveled in Kan. 212. Bui see contra, Adams going from the places where they v. Dohrmann, 63 Cal. 417. reside, whether by public high (a) Virginia & Maryland St. Nav. ways, railroads, or otherwise, Co. v. U. S., Taney & Campbell's restricting, however, the mileage Maryland Kep. 418. to the number of miles actually (A) Cathcart v. Hardy, 2 M. & traveled.] S. 533. (c) Per Lord Campbell, Ibid. (c)lHawk. 8. 15. Comp. 23 L. (/) Per Erie, J., Ibid. J. C. P. 144n. § o95] COMPUTATION OF DISTANCI- 553 most convenient and certain mode of measurement, and that is unquestionably as the crow flies ; a straight line on a hori- zontal plane, between the nearest points of the two places or -objects (a). (a) Lake v. Butler, ubi sup.; "Walker, 1 Johns. 446, 28 L. J. Ch. Stokes v. Grissell, 14 C. B. 678, 23 867; Mouflet v. Cole, L. R. 8 Ex. L. J. 141; Jewell v. Stead, 6 E. & 32. See Coulbert v. Troke. 1 Q. B. 350, 25 L. J. 294; R. v. Saffron B. D. 1. Walden, 9 Q, B. 76; Duignan v 554 ASSOCIATED WORDS. ETC. [§ 306- CHAPTER XIV. Associated Words. § 396. Restrictive effect of Association of General and Specific Words. § 397. Expressio Unius est exclusio alterius. | 400. Noseuntur a Sociis. § 404. Extending Effect of Association of Words. § 405. Rule as to Generic Words added to Specific. § 412. Rule that Inferior docs not include Superior. § 414. Several Words followed by a General Expression. § 415. General Expression in Middle of Clause. § 41G. Reddendum Singula Singulis. § 396. Restrictive Effect of Association of General and Specific Words. — When two words or expressions are coupled together, one of which geiierically includes the other, it is obvious that the more general term is used in a meaning excluding the specific one. Though the words "cows," "sheep," and "horses," for example, standing alone, com- prehend heifers, lambs, and ponies respectively, they would be understood as excluding thein if the latter words were coupled with them (a). The word "land," whiuh in its ordinary legal acceptation includes buildings standing upon it, is evidently used as excluding them, when it is coupled with the word " buildings" (b). If after imposing a rate on houses, buildings, works, tenements and hereditaments, an Act exempted " land," this word would be restricted to land unburthened with houses, buildings, or works ; which would otherwise have been unnecessarily enumerated (•" The mention of one kind of mine shows that the Legislature understood the word "land," which in law comprehends all mines, as not including any. [So, where an act imposed certain taxation upon "every company or association what- ever . . except foreign insurances companies, hanks and savings institutions," it was held, in denying the henetit of this exemption to building associations, as a species of sav- ings institutions, that the legislative sense of the latter phrase as excluding building associations was clearly established by reference toother acts in pari materia, which, when intending to exempt building associations as well as the other insti- tutions named, expressly mentioned the former, in addition to savings institutions ; as, e. g., " and excepting also banks and savings institutions, building associations and foreign insur- ance companies," — the court observing: ''If the two classes were the same, of course they would not receive separate designations." 1 And this construction was insisted upon, although, by it, the act referred to was made to repeal by implication an act passed at the same session of the Legislature, not two months previously, specifically exempting building associations from taxation.*] In the same way, although the word " person," in the abstract, includes artificial persons, that is, corporations (a), the Statute of Uses which enacts that when a " person " stands seized of tene- ments to the use of another " person or body corporate," the latter u person or body " shall be deemed to be seized of them, is understood as using the word " person " in the former part of the sentence as not including a body corporate. Consequently, the statute does not apply where the legal seizin is in a corporation (h). The same construction was son, 3 Burr. 1341 ; R. v. Sedgley, v. Franklin, 3 C. P. D. 337, 47 L. 2 B. & Ad. 65 ; R. v. Cunningham, J. 727 ; Pharmaceutical Society v. 5 East, 478 ; Morgan v. Crawshay, London, etc., Supply Assoc; 5 L. R. 5 IT. L. 304. App. 867. As to foreign corpora- 1 Bourgiirnon Bld'g Ass'n v. tions, Ingate v. Austrian Lloyd's Com'th, 98" Pa. St. 54, 65. Co., 4C. B.K S.704; Scott v. Royal 2 See Ibid. Wax Co., 1 Q. B. I). 404 ; Royal (a) 2 Inst. 722 ; [ante, §§ 87-90.] Mail Co. v. Brabam, 2 App. 381. See, however, Weavers' Co. v. [Ante. § 89.] Forest, 2 Stra. 1241 ; Harrison's (b) Bac. Reading Stat. Uses, 43,. Case, 1 Leach, 215 ; St. Leonards' 57. 556 ASSOCIATED WORDS, ETC. [§ 397 given, for the same reason, to the same word in the Mortmain Act, 9 Geo. 2, c. 36 (a). § 397. Expressio Unius, etc. — It is in this sense that the maxim, occasionally misapplied in argument (I), expressio unius est exclusio alterins, finds its true application. [Thus, where an act had given to courts of common pleas equity jurisdiction in a particular class of accounts, and a sub- sequent act conferred upon them chancery jurisdiction on the grounds of fraud, accident, mistake and account, it was held that the latter act, though broad enough to include all cases of account, should be understood as relating to accounts not within the former, and hence as not working a repeal thereof. 3 The maxim in question, as applied to the con- struction of statutes, certainly cannot mean, that, where one thing is allowed or named, every other thing is forbidden or excluded. It has, indeed, been said, that an exception made by the statute itself excludes all other exceptions ;* that, where a statute specifies the effect of a certain provision, other effects are to be held excluded, 6 as, where an act repeals expressly a particular portion or section of another, there can be no implied repeal beyond that ; 8 that an enumeration of cases in which, e. g., interest may be recovered excludes such recovery in others ; 7 that a power given to national banks of loaning money on personal security, excludes the power of taking any other, e. g., mortgages f that an act affirming jurisdiction in the supreme court of the United (a) Walker v. Richardson, 2 M. the common law rule forbidding & W. 883. suits between husband and wife : (b) Sup. § .374. See Feather v. " the Legislature has undertaken R., 6 B. & S. 257,39 L. J. 200; to enumerate the cases in which she Eastern Archip. Co. v. R., 1 E. & may sue, and all others are B. 310, 23 L. J. 82, per Creswell, omitted ; expressio unius exclusio J., 96 ; London Joint Stock Bank est alterius, is a sound legal v. M. of London, 1 C. P. D. 1, 17. maxim :" Miller v. Miller, 44 Pa. 3 Dick's App., 106 Pa. St. 589, St. 170, 172. 595. 5 Perkins v. Thornburgh, 10 Cal. 4 Brocket v. R. R. Co., 14 Pa. 189. St. 241, 243; Miller v. Kirkpatrick, 6 State v. Morrow. 26 Mo. 131 ; 29 Id. 226; Olive Cem'y Co. v. Pureed v. Ins. Co., 42 N. Y. Philadelphia. 93 Id. 129; Drvfus Super. Ct. 383. Ante, §§ 203, v. Bridges, 45 Miss. 247 ; McRob- 206. erts v. Washburn, 10 Minn. 23. ' Watkins v. Wassell, 20 Ark. Upon this theory would seem to 410. rest the application of the maxim 8 Fowler v. Scully, 72 Pa. St. to exceptions made by statutes to 456, 461. 398] ASSOCIATED WOKD8, ETC. 55T States is to be construed as a negation of jurisdiction in all cases not expressly enumerated;" and that a penal statute designating as subject to its penalties a particular class of persons, exonerates all not belonging to such class. 10 § 398. [But, on the one hand, these decisions, so far as they are accurate, may be readily accounted for on the familiar doctrines, that, "as exceptions strengthen the force of a general law, so enumeration weakens as to things not enu- merated;" 11 that an affirmative may imply a negative and may so operate where the intention of the Legislature to give it that effect is ascertained ; that, the question of a speciiied effect being one of implied intention, an express declaration of the effect an act is intended to have leaves no room for any further implication ; 19 or on the ground of" strict construction applicable to the class of statutes embrac- ing that upon which the rule is supposed to operate, e. ; Dartmouth Coll. v. Wood- ward, 4 Wheat. 636 ; B'k of .\ugusta v. Earle, 13 Pet. 587 Perrine v. Canal Co., 9 How. 184; Venango Nat. B'k v. Taylor, 56 Pa. St. 14. See ante, § 354, post, §4is. 14 See State v. Jaeger, 63 Mo. 403, where it is said that the rule of strict construction required the effect uiven to the act: supra. ?. JOT. 55S ASSOCIATED WORDS, ETC .' 398 confessedly liable to so nuny restrictions and exceptions in its application as to be practically swept away. Indeed, the extreme caution necessary in its application is emphasized wherever it is recognized by writers." Even as to penal statutes, it is said to be too general and subject to too many exceptions to govern the construction." So the rule that the repeal of particular statutes, or of a portion of an act, shall exclude the implication of a repeal of other statutes of the same purport, or of other provisions of the act," is narrowed by the other, that, if a statute was evidently omitted from the enumeration by an oversight, it will nevertheless be repealed, 18 and by the condition that other provisions not expressly repealed be not absolutely incon- sistent with the later act, 10 which practically obliterates the former rule; for such inconsistency is always requisite in order to permit a repeal by implication. 20 Nor, conversely, does the mere enumeration in one statute of certain provisions in another as not to be affected by it warrant an inference that all other existing provisions on the subject, not referred to in the enumeration, are repealed. 31 And, in general, if there is some special reason for mentioning one thing in a statute, and none for mentioning another, the expression of the former will not be an exclusion of the other. 22 A statutory provision declaring a married woman, when a part} - to an action, empowered to enter into any necessary bond or undertaking, does not impair her right to become a 15 See Bish., Wr. L., § 249a; right to impose license taxes upon Broom, Leg. Max., p. 653. See insurance companies, was held to this caution insisted upon in repeal, by implication, the exenip- Taylor v. Taylor, 10 Minn. 107, tion enacted by an act of 1873 in fa- lls, vor of such companies; notwith- 16 State v. Connor, 7 La. An. standing the circumstance (urged 379. upon argument) that the act or 1887 11 Ante, ^397. contained a special repealing clause, 18 New York v. R. It. Co.. 19 N. repealing expressly all former Y. Super. Ct. 571; and see U. S. v. municipal laws, special and gene- Cheeseman, 3 Sawyer, 424. Ante, ral, inconsistent with, or supplied | 2\K'>. by, the provisions of the act of ■• Crosby v. Patch, IS Cal. 13s. 1887. 20 Ante' §| 210 etseq. See, also, n Btirnham v. Onderdonk, 41 N. jEtna [ns. Co. v. Beading, 21 Y. 425. W. N. C. (Pa.) 209, where a M Brown v. Buzan, 24 Ind. provision of the general municipal 194. law of 1887, givingcertain cities the § 399] ASSOCIATED WORDS, ET< . 559 surety in an undertaking upon appeal by another person ; M nor does one declaring that the failure to give a certain prescribed notice shall not invalidate an election imply that every other prescribed formality must be rigidly observed in order to its validity; 24 nor one prescribing that certain enumerated acts, such as filing a demurrer, answer, etc., shall be deemed an appearance by the defendant in a cause, that other acts, e. r given by any act thereby repealed," it was clear that the broad expressions of the latter section could not include the matters specifically provided for in the former, but applied only to preserve contract rights against the city. 29 It applies, indeed, wherever an act contains general provisions and also special ones upon a subject, which, standing alone, the general provisions would include. In such cases, the special pro- visions upon that particular subject indicate an intention that it is ngt to be deemed included in the general pro- vision, and the latter is held inapplicable to it, or, as is sometimes said, is controlled by the special provisions. Where, therefore, there is, in the same statute, a particular enactment, and also a general one, which, in its most com- prehensive sense, would include what is embraced in the former, the particular enactment must be operative, and the general enactment must be taken to affect only such cases within its general language as are not within the provisions of the particular enactment. 30 It follows, that, where an act, in one set of provisions, gives specific and precise directions to do a particular thing, and in another set, prohibits, in general terms, the doing of that, which, in the broad sense of the words used in the latter, would cover the particular act authorized by the former, the more general provisions cannot be deemed to include the matters embraced in the more specific ones. 31 And the same is true as to portions of an act treating exclusively and in detail of a matter that is only incidentally referred to in other sections of the statute ; the former provisions must prevail. 32 ] 29 State v. Trenton, 38 N. J. L. ante, §§ 215-216. 64. « State v. Trenton, 38 N. J. L. 30 Pretty v. Solly, 26 Beav. 610, 64. per Romilly, M. R. ; State v. M Long v. Culp, 14 Kan. 412. ComnVrs of R. R. Tax'n, 87 N. J. Of course, where there is any L. 228. The effect of this rule is apparent discrepancy between practically that general legislation general and particular provisions on a particular subject must give of an act, an harmonization of the way to special legislation on the two should first be aimed at : State same : State v. Clark, 25 Id. 54 ; v. Comm'rs of R. R. Tax'n, 37 N. State v. iUorristowu, JJ3 Id. 01 ; J. L. 228. £ 400] ASSOCIATED WORDS, ETC. 561 § 400. Noscuntur a Sociis. — When two of more words, sus- ceptible of analogous meaning, are coupled together, noscun- tur a sociis. [Where the language of the act itself points to- the associated words as interpreting the more general ours. the application of the rule is obvious. Thus, where an act imposes a tax upon all real estate, to wit, upon various specified kinds of real estate, and from such specification! shown to be private property, it is clear that the general word.- are to be controlled by the specifications, and that the broad phrase embracing all real estate, nevertheless does not include property, e. ). In the Thames Conservancy Act, which, after empowering the conservators to license the construction of jetties in the river, provided that this should not cake away any "right," claim, privilege, franchise, or immunity to which the occupiers of land on the banks were entitled, the word " right," was limited by the associated words to vested rights of property, and did not include the right of navigation which the occupiers enjoyed not otherwise than the public generally (c). In the first section of the Prescription Act, the expression "al- right of common " is similarly restricted by the succeeding words, " or other profit or benefit to be taken and enjoyed from or upon any land," so as not to include rights in gross, but only those usual rights of common and profit a prendre which are in some way appurtenant to the land, and limited to the wants of a dominant tenement (d). And in the second section of the same Act, relating to claims by custom, prescription or grant, "to any way or other easement," the («) R. v. Lichfield, 2 Q. B. 693. Johnston v. Hogg, L. R. 10 Q. B. See the cases collected in Harrison D. 432. See, aTso, Davidson v v. Carter, 2 C. P. D. 26. [In Burnand, L. R. 4 C. P. 120 ; Ash- Gould v. Sub-District, 7 Minn, bury Carriage Co. v. Riche, L. R. 203, a saving of "contract, obliga- 7 II. L. 653; Chartered Merc, tion, rigid, or lien'* was held to Bank v. Wilson, ;i Ex. D. 108; include a claim or action ex delicto, Woodward v. London & N. W. it beiug observed that rigliU would R. Co., Id. 121 ; Williams v. Ellis, arise from obligations and con- 5 Q. B. D. 175. [But in an tracts, and would not probably appointment of a person by an extend beyond them, whilst right insurance company to act as " agent would seem to have a larger sense or surveyor," the court refused to and indicate something more than limit the word •'agent" by the surplusage] term "surveyor :" Lycoming, etc., (b) The ordinary marine policy Ins. Co. v. Woodworth, 83 Pa. St. which insures against arrest of 223.] "kings, princes, and people," (c) 20 & 21 Vic. c. cxlvii. s. 53;- refers, under the last word, not to Kearns v. Cordwainers' Co., 6 C. any collection of persons, but to B. X S. 338, 2S L. J. 285. the governing power of a country (y an agent (/>). The '2\ Vict. c. 10, s. (i, which gives the Admiralty jurisdiction, when the ship-owner is not domiciled in England, over any claim of the owner of goods carrie. 1 into any English port, for damage done to them by the negligence or misconduct of, or for " any breach of duty or of contract" by the ship-owner, master, or crew, seems confined to breaches of duty or contract having some analogy to what is provided in the earlier part of the section ; and was therefore held not to apply to the wrongful refusal of a master to take a cargo to a port abroad (c). § 402. On the same principle, an Act which prohibits the " taking or destroying " the spawn of fish would not include a "taking" of spawn for the purpose of removing it to another bed ; for the word ''destroying," with which "tak- ing" is associated, indicates that the taking which is prohibi- ted is dishonest or mischievous (d). And in an Act which made it penal to " take or kill " fish without the leave of the owners of the fishery, the same kind of " taking " was simi- larly held to have been intended (e). An Act which pro- hibits the " having or keeping" gunpowder, does not apply to a person who "has " gunpowder for a merely temporary purpose, as a carrier, the kind of "having" intended by the- Act being explained by the word "keeping," with which it is associated (/'). So, where an Act punishes the " having or conveying" anything suspected of being stolen and not satisfactorily accounted for, the former expression is limited (a)2&3W. -t, c. 71. Mounsey (^) 3 Jac. I.e. 1? ; Bridger v. v. Imfay, 3 II. .V ('. 486, :'.! I,. .1. Richardson, 2 M. & S. 568. " 52, 56. See Webb v. Bird, 10 C. (e) 22 & 23 Car. 2. c. 25; R. v. B. 268 ; 13 ('. 15. Nil. Mallinsou, 2 Burr. 679. : Minor v. London & X. W. ( /') 12 Geo. 3, c. (II ; BigffS v. I!. Co.. 26 L. .1. C. P. 39; Shiels v. Mitchell. 2 15. & S. 523, :tl L. J. Km. : C. 15. 116. M. C. ). (a) Per Cur. in U. S. v. (d) R. v. Cleworth, 4 B. & S. Coombes, 12 Peters, 80. 927 ; K. v. Silvester, 33 L. J. M. (6) See per Willes, J., in Fen- 0. 79, 8. O. wick v. Schmaltz, L. R. 3 C. P. (e) Peate v. Dicken, 1 C. M. & 315. [T llis nil( ' is said t0 bo R - 4 ~-- especially forcible in the interpre- (/) Kitchen v. Shaw, (5 A. & E. tation of acts falling under the 72'J. Comp. Exp. Hughes, 23 L. rule of strict construction: Re J. M. C. 138 ; Davies v. Berwick, Swi^ert, 119 111. 83. An acl con- 3 E. <& E. 549, 30 L. J. BI. C. 84. ferring on Justices of the Peace Ui) Bramwell v. Penneck, 7 B. civil jurisdiction in cases el' "torts. & C. 536. trespasses and other injuries," was (Ji) It would include, however, a held not to include libel and slan- man who contracted to work by der : Engelking v. Von Wamel, 26 the piece, not bytheday, provided Tex. -1 (•,:,. See Ramsey v. Gould, the relation of master and servant 57 Barb. (N. 5T.) 398, infra, § 407. existed : Lowther v. Radnor, 8 East, Bn1 see post, 8 408, note.] 113; Comp. Lancaster v. Greaves, (e) Sandimanv. Breach, 7 B. & 4 B. & C. 628; Exp. Johnson, 7 C 96. Dowl. 702 ; R. v. Heywood, 1 .M. .§ 405] A880CIATED WORDS, ETC. 5GD [So, wliere an act gave a lien for wages " due for labor and services rendered by any miner, mechanic, laborer or clerk, from any person . . employing clerks, miners, mechanics or laborers, either as owners . . of any works, mines, manufactory or other business where clerks, miners, or mechanics are employed," etc., it was held not to extend to wages of persons employed about an hotel. 39 The Metro- politan Building Act of 1855, which entitles a district surveyor "or other person," to a month's notice of action for anything done under the Act, was held, on this princi- ple, not to give that privilege to every person sued, but to give it only to persons ejusdem generis with a district sur- veyor; that is, having an official duty (a). An Act which made it felony to break and enter into a "dwelling, shop, warehouse, or counting-house," would not include a work- shop, but only that kind of shop which had some analogy with a warehouse ; that is, one for the sale of goods (b). In an Act imposing a penalty on unqualified persons navigating "any wherry, lighter, or other craft," the last word would include only vessels of the same kind as wherries and light- ers, not steam tugs which carried neither passengers nor goods (c). But the same word would be more comprehen- sive if it had followed " boats and vessels " (d). A prohibi- tion against deducting from an artificer's wages any part of them "for frame rent and standing, or other charges," & S. 624. See, also, Gordon v. or inelosure," it was held that the Jennings, 9 Q. B. D. 45, 51 L. J. phrase "or other erection or 417. [Comp. ante. £ 99.] enclosure" should be limited to the 39 Allen's App., 81* Pa. St. (32 S.) same class of objects as those 302 ; Sullivan's App., 77 Id. 107. designated by the preceding speci- (a) Williams v. Golding, L. R. 1 fie terms ; aud that consequently C. P. C9. Comp. Newton v. Ellis, (the word "building" being 1 E. & B. 115. limited to those structures, which, (6) R. v. Saunders, 9 C. & P. at the time of the enactment of 79. [In People v. Richards. the code, were included in the (N. Y.) 11 Centr. Rep. 75, under common law and statutory defini- the New York Penal Code (8§ 493 tions of burglary), breaking into a and 504) declaring guilty of bur- vault, used exclusively lor the glary any person, who, with interment of the dead, was not intent to commit a crime therein, burglary under said sections.] breaks and enters a building, and (c) Read v. Ingham, 3 E. & B. enacts that the term "building" 8S9, 23 L. J. M. C. 156. includes "a railway car, vessel, (d) Tisdell v. Coombe, 7 A. & E. booth, tent, shop or other erection 788. 570 ASSoClATKO WORDS, in. |^40G would not include, under the lust word, aline incurred for breach of agreement (a). <§ 406. The 11 Geo. 2, c. 19, which authorizes the distress for rent of " corn, grass, or other product" growing on the demised lauds, includes only products similar to grass and corn ; but not young trees, which, though unquestionably products of the land, are of a different character from the products specified by the earlier terms (b). For the same reason, young trees are not included in the Act which punishes the stealing of " any plant, root, fruit, or vegetable production growing in a garden, orchard, nursery-ground, hot-house or conservatory" (c). [And for reasons entirely similar, in an act enabling the owner of realty to maintain an action of replevin to recover timber, lumber, coal, or other property severed from the realty, notwithstanding the title to the land maybe in dispute, the phrase "other property ? ' includes only things of the same kind as timber, lumber, or coal, — e. g., slate, marble, zinc ore, iron ore, and all other forms of minerals, building stone and fixtures, and machinery of every description permanently fixed to the realty, but not growing crops. 40 ] An Act which prohibited playing or betting in the streets " at or with any table or instrument of gamine:," would not include, under the last general words, half-pence used for tossing for money (77). A by-law which imposed a penalty for causing an obstruction in the street in various specified ways, all of a temporary character, or otherwise causing or committing " any other obstruction, nuisance, or annoyance " in any of the streets, was held not to include, under the latter words, any obstrue- nt) Willis v. Thorp, L. R. 10 Q. funds, credits and property." B. 383. Compare, also, Thames, etc., Ins. (l>) Clark v. Gaskarth, 8 Taunt. Co. v. Hamilton, L. It. 12 A.pp. 431, Cas. 484, as to a policy of iusur- (c) R. v. Hodces, 1 Moo. & M. ance covering perils of the sea, 341. See Radnorshire Bd. v. specially naming many, and " all Kvans, 3 B. & S. 400, 32 L. J. M. other perils, losses and misfor- ('. 100 ; Smith v. Barnham. 1 Ex. tunes," etc. D 419 (d) Watson v. Martin, 34 L. J. '*> Renick v. Boyd, 99 Pa. St. M. C. 50, rectified by 31 & 82 555 And see People v. N. Y., Vict. c. 52, s. 3; Hirst v. Molcs- etc, It. R. Co., 84 IS. Y. 565, as to bury, L. R. G Q. B. 130. But see- construction of the word "prop- R. v. O'Connor, 15 Cox, 3. erty," in the phrase "money. § 407] ASSOCIATED WORDS, ETC. 571 tion which was not of a temporary character (a). The enactment which prohibited the establishment, without license, of " the business of a blood boiler, bone boiler, fell- monger, slaughterer of cattle, horses, or animals of any description, soap boiler, tallow inciter, tripe boiler, or other noxious or offensive u business, trade, or manufacture," was held not to include under the final general terms any employ- ments not connected, as all the specified trades were, with animal matter; and so did not reach brick making (b). An Act which gives a vote to the occupier of a " house, ware- house, counting-house, shop, or other building," includes, in the latter term, only buildings which, like those specifically mentioned, are of some permanence and utility, and contri- bute to the beneficial occupation of the land, increasing thereby its value (). On the same principle, the Companies Act of 1862, which pro- vides (sect. 79) that a company may be wound up by the Court of Chancery when the company passes a resolution in favor of that course, or does not begin business within a year, or its members are reduced to less than seven, or when the Court thinks a winding up "just and equitable," em- powers the Court by these last general words to wind up only when it is just and equitable on grounds analogous to those precedingly stated (c). § 407. [An act empowering certain officers to correct " clerical or other errors" in assessments was, upon the same principle, construed as referring only to errors of form in the assessment roll, not to errors of the assessors in the making of the assessment, nor to any substantial errors of judgment or of law." So, an act prohibiting attorneys from buying any bond, bill, promissory note, bill of exchange, book debt, or other thing in action, with the purpose of (a) It. v. Midland R. Co., 10 Q. (c) Spackman's Case, 1 McN. & IJ. 389 ; Fredericks v. Howie, 1 II. G. 170; Re Anujlo-Grcek Steam & C. 381, 31 L. .1. M. C. 249. Co., L. R. 2 Eq. 1 ; Re Langham Comp 1 . R. v. Midland R. Co., 4 E. Rink Co., r> Ch. D. 009. See & B. 958 ; Day v. Simpson, 18 C. under The Apportionment Act of B. N. S. 680, snp. § LB9. 1870, lie Cox's Trusts, 9 Ch. D. (b) It. v. Neath.' J,. R. Q. B. 109. 7ur * 2 Be Hermanoe, 71 N. Y. 481. § 407] ASSOCIATED WORDS, ETC. 573 suing thereon, would not include stock in a corporation." In a statute that provides that " any married woman whose husband, either from drunkenness, profligacy, or any other cause, shall neglect or refuse to provide for her support . shall have the right in her own name to transact business, and to receive and collect her own earnings," the words ''any other cause " must be understood as referring to causes of a kind with those previously specified, and not to include mere physical and mental incapacity, 4 * nor any temporary inability of the husband, in consequence of sickness, to sup- port his wife. 45 So, a power given to certain board of officers, in the management of a public institution, to remove employees " for incompetency, improper conduct, or other cause satisfactory to the board," means other kindred cause. 46 Where the charter of a city empowered it to tax persons engaged in particular trades or occupations, enumerating them, such as auctioneers, grocers, merchants, retailers, hotels, hackney carriages, etc., "and all other business, trades, avocations, or professions whatever," it was held that there was no authority to tax any occupation of a class not spe- cifically designated, e. g., that of lawyers. 47 An act giving ju- risdiction to the court of common pleas to appoint viewers to assess the damages, whenever a borough might " change the grade or lines of any street or alley, or in any way alter or enlarge the same," was held to be intended to give a remedy to an abutting owner where his property was injured by a change of grade only, and hence not to repeal the general statute giving a remedy by proceedings in the Quarter Sessions to obtain damages for opening or widening a street or alley. 48 A law authorizing the assessment of a tax on bowling alleys and billiard tables, and also on auctioneers and other venders of merchandize, etc., by outcry, and all other places of business or amusement conducted for profit, 43 Ramsey v. Gould, 57 Barb. 551). But, in this case, the priuci- (N. Y.) 898. pie of strict construction aided this 44 Edson v. Hayden, 20 Wis. interpretation : Ibid. 682. 4S He Brady Street, 99 Pa. St. 45 King v. Thompson, 87 Pa. St. 591. " Looking at the manifest 365. object of t lie act, we must read 46 State v. McGarry, 21 Wis. these general words in connection 496. with such object," says the Court.. 41 St. Louis v. Laughlin, 49 Mo. Ibid., p. 595. ',71 ASSOCIATED WOEDS, ETC. [§408 does not warrant the imposition of the tax upon merchants, bankers and the like. 49 An act avoiding, unless acknowl- e I 'vd, everv " bargain, sale, mortgage, or other conveyance of houses and lands" was held inapplicable to a lease for years of land and a right of way. 00 So, where an act of the confederate congress authorized, whenever the exigencies of any army in the field required it, the impressment of " forage, articles of subsistence, or other property," it was held that it did not sanction the impressment of an hotel or drug-store for hospital purposes." Nor can " transport in any wagon, cart, sleigh, boat, or otherwise," extend to driving cattle on foot."] § 408. Of course, the restricted meaning which primarily attaches to the general word in such circum- stances, is rejected," when there are adequate grounds to show that it was not used in the limited order of ideas to which its predecessors belong. Thus, where an inspector of nuisances was authorized to inspect articles of food deposited in " any place" for sale, and a penalty was imposed on per- sons who prevented him from entering any " slaughter- house, shop, building, market, or other place," where any •carcass was deposited for sale ; it, was held that the latter word was not confined to places ejusdem generis with those which preceded it. The earlier passage, giving authority to enter " any place," obviously required that the same word should receive an equally extensive meaning in the subsequent passage (a). The 103rd section of the Public Health Act of 1848, which imposes a penalty for making any " sewer, drain, privy, cesspool, ashpit, building, or other work, contrary to 49 Butler's App., 73 Pa. St. 448. v. State, 26 Ohio St. 196. It is, 60 Stone v. Stone, 1 It. I. 423. indeed, said, in Slate v. Holman, See, as to inclusion Of leases in 3 McCord (S. C.) 306, thai the rule conveyances, etc., ante, ^145. in question, does not apply in the 61 White v. Ivey, 34 6a. 186. interpretation of a criminal statute, 62 U. S. v. Sheldon, 2 Wheat, except where there is some repug- 119. Compare also, further, upon nancy or incompatibility between this principle. Slate v. Stoller, 38 the specific and general expres- [owa, 321 ; MEcIntyre v. Ingraham, sions. See this case, post, § 410, 35 Miss. 25; Stale v. Pemberton, and see other cases infra. 30 Mo. 376 ; Bish., Wr. L., § 245. (a) Young v. Qratridge, L. R. 4 53 Even in the construction of Q. B. 166. See, also, Harris v. penal statutes: see Foster v. Jenns, 9 C. B. N. S. 152, 30 L. J. Blount, 18 Ala. 687; Woodworth M. C. 183. § 409] ASSOCIATED WORDS, ETC. 575 tho provisions of the Act/' would include, under the word " building," not only constructions of a character similar to those previously mentioned, but also dwelling houses (a). When justices, empowered to prepare a standard for an equal county rate, were authorized for this purpose to direct overseers, assessors of rates, and other persons having the management of the rates or valuations, to make returns of the annual value of the property in the parish, and to require "the said overseers, assessors, collectors, and any other per- sons whomsoever," to produce parochial and other rates and valuations, " and other documents in their custody or power," the context showed that the final generic expression was not confined to official, but extended to private persons {b). So, where an Act imposed a rate on a variety of tenements and buildings which were enumerated, and on "other buildings and hereditaments, meadow and pasture excepted," the exception appended to the concluding general words showed that the latter were used in their widest sense, and were not limited in meaning by the particular terms which preceded them (e). § 409. Further, the general principle in question applies only where the specific words are all of the same nature. Where they are of different genera, the meaning of the general word remains unaffected by its connection with them. Thus, where an Act made it penal to convey to a prisoner, in order to facilitate his escape, " any mask, dress, or dis- guise, or any letter, or any other article or thing," it was held that the last general terms were to be understood in their primary and wide meaning, and as including any article or thing whatsoever which could in any manner facilitate the escape of a prisoner, such as a crowbar (d). Here, the several particular words " disguise " and " letter," exhausted whole genera ; and the last general words must be understood, therefore, as referred to other genera. (a) Pearson v. Kingston, 3 H. & (c) R. v. Shrewsbury, 3 B. & C. 921, 35 L. J. M. C. 44. See Ad. 216. Morisk v. Harris, L. R. 1 C. P. 155, (d) R. v. Payne, L. R. 1 C. C. 27. 35 L. J. 101. See also Shillito v. Thompson, 1 (b) R. v. Doubleday, 3 E. & E. Q. B. D. 12. 501, 30 L. J. 99. 576 ^ s '" IATED WORDS, ETC. [^410 § 41<». The general object of the Act, also, sometimes requires that the final generic word shall not be restricted in meaning by its predecessors. [The rule in general requiring the opposite is merely an aid in ascertaining the legislative intent, and, of course does not warrant the court in confining the operation of a statute, be it penal or otherwise, within limits narrower than those intended by the law-maker," nor require the entire rejection of general terms ; but is to be taken and applied in connection with other principles of statutory construction, e. g., that the declared intention of the Legislature is to be carried into effect. 66 ] Thus the 17 Geo. 3, c. 5(3, which, after reciting that stolen materials used in certain manufactures- were often concealed in the posses- sion of persons who had received them with guilty knowledge, and that the discovery and conviction of the offenders was in consequence difficult:, proceeded to authorize justices to issue search warrants for purloined materials suspected to be concealed "in any dwelling-house, out-house, yard, garden,, or other place," was held to include, under the last word, a warehouse which was a mile and a half from the dwelling- house ; though all the places specifically enumerated were such only as are immediately adjacent to a dwelling house (a). Though such a warehouse would probably not be usually considered as ejusdem generis with a k " dwelling- house," coupled with its enumerated dependencies, it was reasonable, having regard to the preamble and the general object of the statute, to think that the warehouse was within the contemplation of the Legislature, as it was a very likely place for the concealment against which the enactment; was directed ; and a narrower construction would have restricted the effect, instead of promoting the object of the Act. The requirement of the Municipal Corporations Act, 5 & (3 Will. 4, c. TO, s. 32, that voting papers should be signed by the voter, and state the name of the "street, lane, or place," in which the property was situated in respect of which he claimed to vote, was considered satisfied by a statement of the parish where the property lay ; the object of the provision " Woodworth v. State, 20 Ohio (S. C.) 474. St 100 (") R- v. Edmundson, 2 E. & E. » State v. Williams, 2 Strob. 77. 28 L. J. M. 0. 213. § 411] ASSOCIATED WORDS, ETC. 577 being, apparently, the identification of the voter (a). [So,. where an act prohibited the sale of liquors, cigars, tobacco,, candies, peaches, mineral water "and other articles" within a specified distance from a religious meeting, without per- mission, etc., it was, with reference to the object of the law to prevent the sale of all articles except by permission, held that the statute was violated by the sale not only of the articles enumerated, but of any other, the circumstances otherwise bringing the case within the act. 66 An act punishing one will- fully putting into a ball of cotton any " stone, wood," etc., or " any matter or thing whatsoever," would embrace one who put in an undue quantity of water." An act punishing the tak- ing of "cotton, corn, rice, or other grain," was, by the last phrase, held to include peas. 58 And a supervisor of roads was held to be within the protection of a statute punishing resistance to a "sheriff, constable, or other officer." 59 ] § 411. Several decisions on a recent enactment are instructive examples of the application of the above- men- tioned rulesj as to the effect of words of analogous mean- ing on each other, and of specific words on the more general one, which closes the enumeration of them ; as well as of their subordination to the more general princi- ple of gathering the intention from a review of the whole enactment, and giving effect to its paramount object. The 16 & 17 Vict. c. 119, after reciting that a kind of gaming had lately sprung up, to the demoralization of improvident persons, by opening places called betting-houses or offices, enacts, for the better suppression of them, that any person who, being " the owner or occupier of any house, office, room, or place," should "open, keep, or use," or "knowingly per- (a) Per Lord Campbell and § 246. In construing a contract Crompton, J., in R. v. Spratley, 6 between a reservoir compauy and E. & B. 263, 25 L. J. 257. See the owner of a cotton mill, whereby Lowther v. Bentinck, L. R. 39 Eq. the latter was to have the right to 166. draw water to run his mill, "or 66 Stale v. Solomon, 33 Ind. 450. such other mill or mills as may be 61 State v. Holmaii, 3 McCord erected upon his said privilege,^ (S. C.) 306. the court refused to restrict the 68 State v. Williams, supra. And latter phrase to mills of the same see Randolph v. State, 9 Tex. 521, kind, but held it to include a. as to " any other banking game." paper mill : Phoenix, etc, Co. v.. 59 Woodworth v. State, 26 Ohio. Hazen, 118 Mass. 350. St. 196. See, also, Bish.. Wr. L.. 37 578 ASSOCIATED WORDS, ETC. [§ 411 mit" it to be used lor the purposes of betting, should be liable to a penalty of 502., and to an action for the recovery of any deposit made with him in respect of the bet. The Court of Common Pleas held that a man who habitually sorted to a certain spot under a tree in Hyde Park, and there made bets, occupied a " place " within the meaning of the \ct. Although that general word was used with specific ones which involved the idea of structure, the mischief aimed at, which was to prevent skilled persons using a well-known plaee for inducing improvident persons to bet, was equally great whether under a tree or in a room (a). This decision was reversed by the Exchequer Chamber on the ground, chiefly, that the defendant could not be said to be the "occupier' 1 of the place ; as that expression derived a meaning from the one with which it was coupled, which implied some legal and exclusive title to the place (b). But a temporary wooden structure, erected on a piece of ground rented by the person who used it for betting purposes, though unroofed and not fixed to the soil, was afterwards held to be a " place" within the Act (c) ; and in another case, a man who carried on the same business, standing on a stool sheltered under a large umbrella on which was printed an indication of the business, was held to be the " occupier of a place " within the Act; as he had in fact appropriated it for Ins proceedings, though lie paid no rent and had no greater right to stand on the spot than any others of the public who were admitted (//). In another ease a piece of enclosed land of about four acres was considered a "place" within the Act (e). [On the other hand, in a statute empowering municipal officers to "sell" shares of a railway corporation for which the city had sub- scribed, the addition of the general phrase : " and to do what- ever else may seem necessary .... in the premises," was held not to work an enlargement of the powers specifically granted, but to invest the officers with a discretion only as to the manner of sale, and not to authorize them to barter or (a) boggett v. Cattarns, 17 C. B. (n the legal demands in equal pro- portions, according to their amount, without regard to the nature of said demand, not giving preference to any debts on account of the instrument of writing on which the same may be founded." Among the enumerated claims, judg- ments were not mentioned. It was held, that, as, at common law, debts were to be paid by executors according to their dignity, and as an enumeration of things or persons of an inferior could not embrace things or persons of a superior- dignity, judgments retained the preference in the distribution which they had before. 62 ] The 22 & 23 Car. 2, c. 25, which empowered the lords of "manors and other royalties" to- grant a deputation to a gamekeeper, was limited to the lords of such royalties as are inferior to manors ; for if a royalty of a higher nature had been meant, that would have preceded the term " manor" (a). The 2 Westm. c. 47, which prohibited salmon-fishing from Lady-day to St. Martin's, in " the waters of the Ilumber,. Owse, Trent, Done, Arre, Derewent, AVherfe, Nid, Yore, Swale, Tese, Tine, Eden, and all other waters wherein salmons be taken," was considered as including, in the final general expression, only rivers inferior to those enumerated, and therefore as not comprising nobile illud flumen, the Thames (b). An Act which punished cruelty to any " horse,. mare, gelding, mule, ass, ox, cow, heifer, sheep, or other cattle," was held not to include a bull (c). A statute which spoke of indictments before justices of the peace and " others having power to take indictments," was understood, on the general ground under consideration, as not applying to the Superior Courts (d). But the 11 & 12 Viet. c. 42, which authorizes justices of the peace to inquire into indictable- offences committed on the high seas or abroad, and to bind the witnesses to appear at the next "court of oyer and terminer, or jail delivery, or superior court of a County Palatine, or the Quarter Sessions," would authorize a justice 62 Woodworth v. Paine's Adm'rs, 4 T. R 224, 459. 1 111. 374. (b) 2 Inst. 478. (a) Ailesbury v. Pattison, Doug. (c) Exp. Hill, 3C.&P. 225. 28. See, also, Evans v. Stevens, (d) 2 Rep. 4Gb. :§§ 413, 414] ASSOCIATED WORDS, ETC. 581 to hold an inquiry into an offence committed by a Colonial Governor in his colony, which is triable by the Queen's Bench. That court, was included in the words, " court of oyer and terminer " (a). § 413. [Notwithstanding the reasonableness of this mode of construction, founded as it is upon the experience of the natural working of men's minds, 63 " when the court can discern that the mind of the maker of a statute moved otherwise, it should not apply to his work this rule of interpretation." 64 Thus, where the express words used in the detailed enumeration embrace all the things or persons capable of being classed as of an inferior degree, and there are still general words used in addition, it is clear that 'they must be applied to things or persons of a higher degree than those enumerated. 65 Otherwise they would have to be left without effect, which is not permissible. 66 § 414. Several Words Followed by a General Expression. — "[The strict rule of grammar would seem to require, as a general thing, a limiting clause, or phrase, following several expressions to which it might be applicable, to be restrained to the last antecedent. 67 Thus, in a clause " reserving to the town of Hull the privilege of the shores and of feeding all lands not comprehended within the aforesaid bounds," the phrase " not comprehended," etc., was held to refer only to the last antecedent. 65 Under a provision providing for the adoption of a statute by cities and towns" at a legal meeting of the city council or the inhabitants of the town called for that purpose," it was held that the limitation contained in the phrase, ''called for that purpose" did not apply to the (a) R. v. Eyre, L. R. 8 Q. B. extreme strictness of construction 487. may perhaps be attributed to the 63 See ante, § 412. excessive seventy of the law in 64 Bish., Wr. L., § 246b. question : 1 Bl. Coram. 88. Comp. 65 [Ellis v.Murray, 28 Miss. 129] Child v. Hearn, L. R. 9 Ex. 176 ; 2 Inst. 137. Fletcher v. Sondes, 3 Bing. 580 ; 6B [See ante, §§ 23, 265.] It R. v. Paty, 2 W. Bl. 721 ; Wright was, indeed, once thought that in v. Pearson, L. R. 4 Q. B. 5S2. the 14 Geo. 2, c. 6, which made it B7 See Cushing v. Warwick, 9 a capital felony to steal sheep or Gray (Mass.) 382 ; Gyger's Estate, " other cattle," this last expression 65 Pa. St. 311. And see Fisher v. was "much too loose " to include Connard, 100 Id. 63. any other cattle than those already 68 Cushing v. Warwick, supra, specified, viz., sheep ; but this 582 ASSOCIATED WORDS, ETC. [§ 414: action of city councils. 69 Again, where the by-laws of a society provided that the annual meeting for the election of officers should he held on the first Sunday in July in each year, and the monthly meeting on the first Tuesday of each month, at half past s< y< n o'clock, P.M., it was held that "at half past seven o'clock, p.m.," must be deemed as fixing the hour for the monthly meeting only. 70 Similarly the words " which " and "said " are said to refer to the last antecedent, whether it be a word or a clause, to which they can properly apply, and not to include the clause preceding the last. 7 ' But this technical grammatical rule is liable to be displaced wherever the subject-matter requires a different construc- tion, 72 in obedience to the principle elsewhere discussed, 73 that rules of that character are subordinated to a common sense reading of an enactment. An example in point here has already been given in that connection. 74 Another is found in the decision upon the construction of a clause preserving from discharge, under a judicial sale, the lien of a mortgage prior to all other liens "except other mortgages, ground- rents, purchase-money due the commonwealth, taxes, charges, assessments and municipal claims, whose lien, though afterwards accruing, lias, by law, priority given it," where the relative" whose" was held to refer not only to the immediately antecedent term " municipal claims,"but to taxes, charges and assessments as well, on the ground, that, as in other acts in pari materia, all these terms were used and grouped together as a class and intended to be so under- stood.' 5 Indeed, in most cases, it will be found, on some ground of this sort, that, where several words are followed by a general qualifying expression which is as much applicable to the first as to the last, that expression is not limited to the last, but applies to all. 76 Thus, in a provision. 69 Quinn v. Eler.tr. Light Co., 186. 140 Mass. 106, city councils, it is 1 - dishing v. Warwick, supra. said, being usually composed of " Ante, S§ 81, 82. different bodies acting at regular 14 Gygers Est., 65 Pa. St. 311, meetings and under prescribed ante, $ 81. rules of procedure. 75 Fisher v. Connard, 100 Pa. St. '" Siate v. Conklin, 34 Wis. 21. 63. " Fowler v. Tuttle, 24 N. H. 9. »■ Greal West. Ry. Co. v. Swin- And for a similar rule in the con- don, etc., Ry. Co.. L. R. 9 App. struct ion of provisos, see ante, § Cas. 787. § 414] ASSOCIATED WORDS, ETC. 583 in the third section of the Land Clauses Act, that " lands " shall extend to " messuages, lands, tenements, and heredit- aments of any tenure" the last words were held to apply to all the preceding ones, not to " hereditaments" only." So, an act providing that it should be lawful for any court having equity jurisdiction in any suit " concerning goods, chattels, lands, tenements or hereditaments, or for the perpetuating of testimony concerning any lands, tenements, etc., situate or being within the jurisdiction of such court," to order and direct the service of subpoenas upon defendants beyond its jurisdiction, it was held that the "goods, chattels, lands, ten- ements or hereditaments " mentioned in the first clause, were, like those in the clause concerning the perpetuating of testi- mony, such only as were "situate and being within the jurisdiction of such court." 78 Similarly, where words occur at the end of a section, it is said that they are presumed to refer to and to qualify the whole. 79 Thus, where a section provided that no person holding office under the act of which it was a part should be liable to military or jury duty, or to arrest on civil process, nor to service of subpoenas from civil courts while actually on duty, it was held that the latter phrase applied to the whole sentence. 88 And so where a re- strictive provision occurs at the end of a series of sections. Thus, an act limited the compensation which certain officers might retain from fees received by them ; a subsequent act provided, in one section, that, in a certain class of cases the officers might charge and receive from suitors certain fees, and, in the next section, that, in the remaining class of those cases, they should receive a like compen- sation from the United States; the last section provided that no officer should receive a greater compensation than the amount then limited by law ; and it was held that this provision was applicable to the fees given by both sections. 81 77 Ibid. ; Lord Bramwell saying, 314. at p. 808, that in the phrase 79 Coxton v. Dolan, 2 Daly "horses, oxen, pigs and sheep, (N. Y.) 66. And see Hart v. Ken- from whatever country they may nedy, 15 Abb. Pr. (N. Y.) 432. come," the last clause would apply 80 Ibid. See infra. § 415. alike to horses, oxen, pigs and 81 U. S. v. Babbit, 1 Black, 55. sheep. It was said by the court, at p. 61, 78 Eby's App., 70 Pa. St. 311, that, if the proviso could properly 584 &8800IATED WORDS, ETC. .'..' 415, 410 But, where one section of an act gave to municipalities power to establish libraries, and the next section provided that " any town or city may appropriate money for suitable buildings or rooms, and for the foundation of such library a sum not exceeding one dollar for each of its ratable polls in the year next preceding," also annually thereafter a sum not exceeding fifty cents for each of its ratable polls, etc., it was held that clearly the restriction was only upon the amount to be put into books, not upon that to be expended upon the building 89 or rooms. § 41.*). General Expression in Middle of Clause. — [On the con- trary, where general words occur in the middle of a sentence and sensibly apply to a particular provision of it, they are not to be extended to what follows. 83 Thus, in the case of the act above referred to, 84 it was said, that, had the last clause of the provision read " nor, while actually on duty, to service of subpoenas from civil courts," the sense would have been very different, the qualifying power of those words, in such case, being confined to the clause with which they would thus have been immediately connected. 85 § 41G. Reddenda Singula Singulis. — [Where the opening words of a section are general, whilst the succeeding parts of it branch out into particular instances, — " where several words importing power, authority and obligation are found at the commencement of a clause containing several branches, it is not necessary that each of those words should be applied to each of the different branches of the clause ; it may be con- strued reddendo singula singulis ; the words giving power and authority may be applicable to some branches, and those Ik- applied only to the officers statute as if it were within the named in the section to which it letter." was appended, the court would, 8 ' 3 Dearborn v. Brooklinc, 97 upon the ground of identity of Mass. 4(i(i. reason and intention, and the ini- 83 Coxton v. Dolan. 2 Daly probability of a contrary design, (N. Y.) 6(5. And sec Hart v. Ken- hold that* it was clearly implied nedy, 14 Abb. Pr. (N. Y.) 432. that the same rule should apply to But see ante, § 318, for an those Darned in the previous sec- instance of transposition of a fion; declaring that "a thing proviso. within the intention of the makers M Coxton v. Dolan, supra, 3 »f a statute is as much within the 414. w Ibid. § 416] ASSOCIATED WOKDS, ETC. 5S5 of obligation to others." 88 Thus, one section of an act 'pro- vided " it shall and may be lawful for the directors, and they are hereby authorized and required, to form a new common sewer, and also to alter and reconstruct all or any of the sewers of the city, and also to make such other alterations and amendments in the sewers as may or shall be necessary." It was decided that the directors of the company were bound to form a new common sewer, but were merely authorized, and not bound, to alter and reconstruct the other sewers of ■the city. 87 Stated more generally, the rule is that words in different parts of a statute must be referred to their appro- priate connections, giving each, in its proper place, its proper force, reddendo singula singulis, and, if possible, rendering none of them useless or superfluous ; 88 or, again : ■" The different portions of a sentence, or different sentences, are to be referred respectively to the other portions or sen- tences to which we can see they respectively relate, even if strict grammatical construction should demand otherwise." 89 The 3 & 4 William 4, c. 22, provided that " the property of, and in all lands, tenements, hereditaments, build- ings, erections, works and other things which shall have been or shall hereafter be purchased, obtained, erected constructed or made by or by order of, or which shall be within or under the view, cognizance, or management of any Commissioners of Sewers," should be vested in such commis- sioners. If this section had been read literally, the property 86 Bayley, J., in R. v. Bristol tive application, but held that Dock Co., G B. & C, at pp. 191, "prosecution" and "indictment" 192. This quotation and the Eng- were used as synonymous, and lish cases in this section are bor- that the time limited was to be rowed from Wilb., Stat. L., pp. computed from the time a true 189-191. bill was found. But this construc- 81 R. v Bristol Dock Co., 6 B. tion of the words "prosecution" & C. 181. and "indictment" was aided by 88 Mclntyre v. Ingraham, 35 other language in the act, indicat- Miss. 25. ing their use in the same sense, 8i > Com'th v. Barber (Mass.) 3 and the refusal to apply the prin- ISTew Engl. Rep. 901, 903. Com- ciple reddenda singula singulis is, pare, however, Com'th v. Haas, 57 to some extent, placed upon the Pa. St. 443, 445, where, in con- character of the enactment,' "As- struing a provision that "all tuteness must not be employed to indictments and prosecutions . . . narrow or take away a defence shall be brought or exhibited within granted by law to a party accused two years," etc., the court refused of crime." to give to these words a distribu- 586 ASSOCIATED WOKDS, ETC. [§ 416 in all lands which were under the view or cognizance of any Commissioners of Sewers would have vested in them, and the owners would have been deprived of their lands without compensation. To avoid this result, the court read the words reddendo singula singulis, and held that the section vested in the Commissioners the property in lands purchased by them, and in works and other things under their view, cognizance and management. 90 An aet of Congress directed that all fines, penalties, and forfeitures accruing under the laws of Maryland and Virginia, in the District of Columbia should be recovered by indictment or information in the name of the United States, or by action of debt in the name of the United States and of the informer. It was held, red- dendo singula singulis, that the proceedings should be by indictment, where, under the laws of the state in which it was taken such was the proper course, and by action of debt, where, by such laws, a private action only could be sustained. 81 The principle was also applied in the construction of an act, one section of which required all brokers and private bankers to make an annual return of the profits of their business, and another, to make a report of their names, places of business and capital employed, and then enacted that every " banker or broker who shall neglect or refuse to make the return and report required by the first and second sections of this act, shall for every such neglect or refusal, be subject to a penalty," etc. It was held that a separate penalty was im- posed for the neglect to make each report or return, invoking the principle " reddendum singula singulis." 98 ] 90 Stracey v. Nelson, 12 M. & 208. But it would seem that the \V. 5:5."") ; 13 L. J. Ex. 97. principle was rather that stated in 91 U. S. v. Gadsby, 1 Cranch, C. £ 414, that general provisions at the Ct. 55 ; U. S. v. Simms, 1 Crunch, end apply to each of several preced- 252. in^ particular ones. And see ante, 92 Com'th v. Cooke, 50 Pa. St. § 250. 417] implications. 587 CHAPTER XV. Implications and Intendments. Directory and Impera- tive Provisions. Impossibilities. Waiver. § 417. Incidents and Consequences Impliedly Sanctioned by Act. § 418. Implied Grant of Powers. Corporations, etc. § 419. Powers implied in Grant of Jurisdiction. § 420. Other Implications. § 421. Implied Exercise and Expression of Legislative Judgment. § 422. Implications not Extended beyond what is Necessarily Implied. § 423. Protection Implied in Grant, etc., of Powers, Duties, etc. § 424. Implied Obligations. § 425. One Duty may Imply Another in Same Person. § 426. Right or Duty in One may Imply Duty in Another. § 427. Grant of Right to One may Imply Right in Another. § 428. Implied Conditions in Grant of Judicial Powers. § 430. New Jurisdiction how to be Exercised. § 431. Distinction between Imperative and Directory Provisions. § 432. Tests. Negative and Affirmative Words. § 433. Duty— Privilege. § 434. Regulations, etc., of Acts conferring Powers, Privileges, etc., Imperative. § 435. Acts Relating to Judicial Procedure. § 436. Regulations, etc., of Acts relating to Performance of Public Duties Directory. § 437. Matters of Procedure by Public Officers. § 438. Effect of Public Inconvenience and Private Injury. § 440. Remed}^ for Omission of Directory Duty. § 441. Impossibilities in the Nature of Things. § 442. Impossibilities arising from Acts of Parties. § 443. Impossibilities upon which Jurisdiction is Conditioned. § 444. Waiver of Statutory Provisions as to Rights and Contracts. § 445. Waiver, etc., as to Procedure and Practice in Courts. § 446. No Waiver as against Public Policy and Rights of Others. § 447. No Waiver of Want of Jurisdiction. § 448. Estoppel from Claiming Benefit of Statute. § 417. Incidents and Consequences Impliedly Sanctioned by Act.. — Passing from the interpretation of the language of Statutes, it remains to consider what intentions are to be attributed to- -588 IMPLICATIONS. [§ 417 the Legislature, where it lias expressed none, on questions necessarily arising out of its enactments. Although, as already stated, the Legislature is presumed to intend no alteration in the law beyond the immediate and specific purposes of the Act, [and within the limits imposed by the operation of that principle,] these purposes are con- sidered as including all the incidents or consequences strictly resulting from the enactment. Thus, an Act which declared an offence felony would impliedly give it all the incidents of felony ; and it would make it an offence to be an accessory before or after it (a). [Where a statutory action as to one subject-matter is extended by a subsequent statute to a new case, everything annexed and incident to the action by the first statute is equally extended. 1 ] Where trustees were appointed by Statute to perform duties which would, of necessity, continue without limit of time, it was held that from the nature of the powers given to them, they were impliedly made a corporation (b). When a local authority had statutory powers to " recover" expenses, it was thereby also impliedly empowered not only to sue for them, but to sue in its collective designation, although not incorporated (c). The Act which gave the Admiralty Court jurisdiction over all claims for necessaries supplied to foreign ships, impliedly created a maritime lien on the ship, which follows it in the hands of a purchaser (d). The Bankruptcy Acts, in requir- ing a bankrupt to answer self-criminating questions relative to his trade and affairs, made his answers subject to the general (a) 1 Hale, 632, 704 ; 1 Hawk. c. Assessors v. R. R. Co. (N. J.) Id. 38, s. 18; Coalheavers' Case, 1 426. Leach, 66 ; Gray v. R., 11 CI. &F. (b) Exp. Newport Trustees, 16 427 Sim. 34(5 ; comp. Williams v. Lords 1 Uahimore, etc., R. R. Co. v. of Admiralty, 12 C. B. 420 ; 2 L. Wilson, 2 W. Va. 528. And M. & P. 456 ; Rivers v. Adams, 3 where an act exempts from taxa- Ex. D. 361. [See, similarly, Barnet t ion the property of a certain cor- v. School Dir's, 6 Walts & S. poration which it authorizes the (Pa.) 46 ; Kingley v. Seh. Dir's, same to acquire, property acquired 2 Pa. St. 28. And sec Overseers v. by the corporation under authority Kline, 9 Id. 217, 219,1 given by a subsequent act is (c) Mills v. Scott, L. R. 8 Q. B. equally exempt : State v. Soc'v for 496. Est. Usef. Mauufs (N. J.) 4 Centr. ((•>; also § 110. (a) 8hep. Touchst. 89; Roll. Ah. Incidents, A. (f>) The Clarence R. Co. v. The G. X. of England R. Co., 13 M. & W. 721. See, also, Be Dudley, 8 Q. B. I). 86. (C) See Ashlmi'V, &c. Co. V. Riche, L. R. 7 H.'L. 053 ; Brough- ton v. Manchester Waterworks, 3 P>. & A. 12; Shears v. Jacobs, L. R. 1 C. P. 53, and the cases collect- ed in S. of Ireland Colliery v. Wardle, L. R. 3 C. P. 463. '■' Le Couteulx v. Buffalo, 33 K Y. 333 ; Memphis v. Adams, 9 lleisk. (Tenn.) 518. SeeWilliams- porl v. Com'th ; N4 Pa. St. 487, as to the implied power of municipali- ties to borrow money and issue bonds therefor, — a power, which, as to private or trading corporations, may, as a general proposition, be conceded, unless restrained by their cliaiters or the law of the land: [bid., p., 493, and may be said to be within the implied powers of a municipal corporation : Ibid, p., 494. See 1 Dill., Mun. Corp., § 89. S 4181 IMPLICATIONS. 591 warrant could not be found in the language of their charters, we should deny them, in some cases, the power of self- preservation, as well as many of the means necessary to effect the essential objects of their incorporation. And therefore, it has been an established principle in the law of corporations, that they may exercise all the powers within the fair intent and purpose of their creation, which are reasonably proper to effect the powers expressly granted." J^or should anything that is fairly incidental to those things which the Legislature has authorized be held ultra vires, unless expressly prohibited. 7 Thus it has been decided that, e. g., the grant to a municipality of power to " prevent and extinguish fires," granted, by implication, the power to erect a fire-engine house ; 8 of power to " make police regulations or needful by-laws," a power to purchase fire- engines ; 9 of power to contract " for lighting " streets, a power to acquire street fixtures, including gas-pipes and lamp-posts, for that purpose ; 10 and a grant of power to a railroad company to purchase land in order to procure stone and other material necessary for the construction of its road, a grant of power to purchase land in order to get cross-ties and fire-wood. 11 Indeed, it may be generally said, that, whenever a power is given by statute, everything necessary to make it effectual, everything essential to the exercise of it, is given by implication. 12 Thus, under the Pennsylvania act: of 1848, which declared that property accruing to a married woman should be " owned, used and enjoyed " by her as her separate property, it was held, that, as the use and enjoyment referred to must be such as were consistent with the nature and kind of property accrued to the woman, where it consisted, e. g., of a store of liquors and cigars, which could not be used and enjoyed in the same manner, 6 Bridgeport v. R. R. Co., 15 9 Van Sicklen v. Burlington, 27 Conn. 475, 501. As to implied Vt. 70. powers of Railway Companies, see 10 Nelson v. La Porte, 33 Ind. Pierce, Railroads. Ch. xix. 258. 1 Alty.-GeDl. v. Great East. Rf " Mallett v. Simpson, 94 N. C. Co.. L. R. 5 App. Cas. 473. Arid 37. see Cook v. Hamilton Co., 6 12 New York v. Sands. 105 N. Y. McLean. 112. 210 ; Com'th v. Conyngham, 66 8 Clarke v. Brookfield, 81 Mo. Pa. St. 9!) ; Witherspoon v. Dun- 503. lap, 1 McCord (S. C.) 546. 592 imi'i.i. a-tions. [§ 418 as, e. g., household furniture or a dwelling house, but were merchandize, and as it was in the nature of merchandize to be sold and exchanged, the power to own and use and enjoy implied, as to such property, the right to trade by them,— in a word, made women merchants." The same language applied to real property was held to give her, by implication, the right to contract, and make her estate liable, for neces- sary repairs and improvements ; for the enactment would be vain without such a power. 14 So, a power given to a married woman to engage in business was held to enable her to borrow money and to purchase real estate wherewith and wherein to commence business, as well as to contract debts in the prosecution of such business when established. 15 And .when an act directs a thing to be done, e. g., an increase of the salaries of municipal officers, it authorizes impliedly, without doing so in terms, the performance of whatever is necessary to carry the direction into effect, i. e., an increase of taxation necessary to meet the additional burden imposed.^ An act authorizing the Comptroller of a county to create a public fund or stock for certain specified purposes, impliedly authorized that officer to employ an agent to negotiate the county bonds provided for by the act, to make an agreement with him for compensation, and to pay him out of the pro- ceeds of the bonds. 17 ] 13 Wieman v. Anderson, 42 Pa. due-bills : Wilderman v. Rodgers, St. 318. Where ;tn act directed (Md.) 5 Centr. Hep. 573 (sec as to the treasurer of the commonwealth the inclusion of checks in the to assign to a certain corporation phrase notes, etc.: Walker v. all the shares of its stock owned Geisse, 4Whart. (Pa.) 252 ; Bill v. by the commonwealth, etc., the Gaw, 4 Pa. St. t93); and post, corporation thereupon to "hold dated checks : Nash v. Mitchell, 8 and dispose of the shares of stock Hun (N. Y.) 471; and to execute so assigned to it as its absolute notes in blank: Morrison v. property," it was held thai the cor- Thistle, G7 Mo. 596. poration might divide the shares I6 Green v. New York, 2 Hilt. among its stockholders: Com'th (N. Y.) 203. v. B. & A. K. R. Co., 142 Mass. " New York v. Sands, 105 N". Mi;. Y. 210. Under an act vesting in >* Lippincott v. Leeds, 77 Pa. St. District Attorneys" the duties now 420, 422. by law to be performed by deputy "Wrecking v. Rolland, 53 >V Y. attorney-generals," it was held that 422. And sec Zurn v. Noedel, a "writ of quo warranto might issue 113 Pa. Si. 336 : Bovard v. Ketter- on the informal ion Of a District ing, in i id. L81. The grant to Attorney to determine the right of married women of power to make certain persons to act as school noics has been held to imply the directors: Gilroy v. Com'th, 106' power to give hank checks and Pa. Si. 184. §419] IMPLICATIONS. 593 § 419. Powers Implied in Grant of Jurisdiction.— Where ail Act confers a jurisdiction, it impliedly grants, also, the power of doing all such acts, or employing such means, as are essentially necessary to its execution. Cui jurisdictio data est, ea quoque concessa esse videntur, sine quibus jurisdiction explicari non potuit {a). So, where an inferior Court i.- empowered to grant an injunction, the power of punishing' disobedience to it b} r commitment is impliedly conveyed by the enactment ; for the power would be useless if it could not be enforced (b). [It is said, that, independently of any express statutory grant of authority, and as a necessary incident to their existence and the exercise of the jurisdiction conferred upon them, courts of record have the power to make rules, not contrary to law, for the regulation of their business, 18 and to punish contempts. 19 ] And it is laid down that where a statute empowers a justice to bind a person over, or to cause him to do something, and the person, in his pres- ence, refuses, the justice has impliedly authority to commit him to jail till he complies (c). (a) Dig. 2, 1, 2. [Thus, where an act conferred upon the comp- troller the power to cancel the sale of real estate for state taxes and refund the purchase-money, wherever such sale was invalid and ineffectual to pass title, and, upon receiving evidence thereof, required him so to do, it was held that there was implied the power to receive evidence of the defect and to act thereon, to receive affidavits and administer oaths; that, therefore, the exercise of the power was not confined to cases of invalidity appearing on the face of the proceedings ; and that the comptroller could be required by mandamus to hear and determine an application properly made to him for cancellation, etc., under the act : People v. Chapiu. 105 N. Y. 309 ; 7 Ccntr. Rep. 293.] (b) Exp. Martin, 4 Q. B. D. 212. [And a statutory provision making a decree for a deed to operate as a conveyance does not take away the jurisdiction of the court to enforce the execution of the con- veyance by process of attachment: Randall v." Pryor, 4 Ohio, 424.] 38 18 Fullerton v. Bank, 1 Pet. 604 ; Barry v. Randolph, 3 Binn. (Pa.) 277 ; Vanatta v. Anderson, Id. 417 ; Boas v. Nagle, 3 Serg. & R. (Pa.) 253 ; Risher v. Tliomas, 2 Mo. 98 ; Brooks v. Boswell, 34 Id. 474 ; Kennedy v. Cunningham, 2 Mete. (Ky.) 538. 19 K. S. v. New Bedford Bridge. 1 Woodb. & M. 401. See, also. Gates v. M'Daniel. 3 Port. (Ala.' 356; Randall v. Pryor, 4 Ohio, 424 ; Armstrong v. Beaty, Cam. & N. (N. C.) 33; and Lining v. Bent- ley, 2 Bay (S. C.) 1, as to such power in justices of the peace : but see contra, Albright v. Lapp, 26 Pa. St. 99 ; R. v. Bartlett, 2 Sess. Cas. 291. And see upon this sub- ject, Cooley, 0. L., 390, note 3. A surrogate may punish for con- temptuous refusal to appear and give evidence, but a defaulting witness cannot, in any case what- ever, be brought in by attachment, forciblv, " to testify :" Perry v. Mitchell, 5Denio (N. Y.) 537. (c) 2 Hawk. c. 16, s. 2. [An act investing a court with power of deciding cases of contested elec- tion was, in Handy v. Hopkins. 5ft 1 504 IMPLICATION'S. [§ 420 § 420. other implications. - [An act extending the limits of a city so as to embrace within its boundaries certain lands used only for farming purposes, by necessary implication makes these lands subject to taxation for municipal objects." An act making the judgment of the Common Pleas upon certiorari to a justice of the peace final, as regards affirmance or reversal of the justice's judgment, makes the former final also as to the subsequent allowance of a writ of execution for costs accrued on the certiorari. S1 Where an Act pro- vided that the costs and expenses incident to passing it, should be paid by the Metropolitan Board, but did not state to whom they should he paid, it was held that they were payable to the promoters only, and not to agents and other persons employed by them (a). [So, where no time is fixed by a statute within which an appeal allowed by it is to he taken, it is said that a reasonable time is to be understood as allowed, 2 ' or the time prescribed by a general law regulating Md. l~<7. held to give it authority to decide all matters and questions involved in such contest, and, having decided against tin- pre- tensions of the contestants, to declare that contestees were not duly elected, and that the office was vacant. See, also, Anderson v. Level v, 58 Id. 192. Comp. Ellingham v. Mount, 4:; N. J. L. 470, that a court, under a power of revising contested elections, is con- fined to the grounds of contest enumerated in the statute, and cannot, e. g., adjudge, in such a proceeding, the constitutionality of the law under which the elec- tion was held. And S 527. n. 179.] Kelly v. Pittsburgh, 85 Pa. Si. 170. Seethe dissenting opin- ion of A.gnew, C. J., concurred in by Sterrett, J. '-' Palmer v. Lacock, 107 Pa, St. 340. As to the right to costs in such cases, see Hartman v. BecMel, 1 Woodw. (Pa.) 140. An act declaring that the returns of certain elections "shall be subject to the inquiry, determination and judgment of the Court of Common Pleas," who shall " proceed on the merits thereof, and shall determine ■finally thereon . . . and . . . -hall immediately certify to the Governor the decree . . . and in whose favor such contested election shall be terminated; and the Governor shall tht a issue the commission," etc., — necessarily implies the final- ity of the decree of said court and the absence of revisory power, even by certiorari, in the Supreme Court: Carpenter's Case, 14 Pa. St. 486 ; just as a provision making city councils the "final" judges of election returns ousts the juris- diction of tlie courts and makes such councils the sole tribunal to determine the legality of the elec- tion of their members : Selleck v. Com. Council of S. Norwalk, 40 Conn. 359. But see as to a pro- vision making city councils judges of elect ion. but not declaring their decision final, nor making any provision for contesting it, Echols v. State, 56 Ala. 131, where such decision was held to confer only a prima facie right to the office until ousted by proper legal pro- cess in l!ii' nature of quo warranto. (a) Wyatl v. Metrop. B. of Work-. 11 C. B. N. S. 744. '-'-' Moore v. Fields, 1 Oreg. 017. But see ante, § 20. § 421] IMPLICATIONS. 595 appeals is to be regarded as impliedly adopted."] A private Act which, after annexing a rectory to the deanery of Wind- sor, recited that the dean's residence at the latter place would oblige his frequent absence from the rectory, and required him to appoint a curate to reside there, was deemed to give him, by implication, an exemption from residence {a). § 421. Implied Exercise and Expression of Legislative Judg- ment.— [The rule, that, whatever is necessarily or logically involved in an enactment is implied by it, with the same force as if it were expressed, extends also to those cases where the right of legislation is, by the constitution, con- fined to occasions in which the existence of certain facts shall have been first ascertained by the Legislature. It has been seen that a legislative declaration that a certain im- provement authorized by it, is for the benefit of adjacent landholders who are, by the act, subjected to taxation to defray its expenses, is conclusive. 24 Similarly, the decision of the Legislature that a railroad is required by public necessity is implied in a grant by it of a charter to construct the same and is conclusive. 26 And where the constitution confines the right of the Legislature to grant special charters to cases for which it may deem the general laws inadequate, the exercise of the judgment is implied in the mere passage of such a charter without any express declaration to that effect. 26 So, where the constitution of a state provided that no act of the Legislature of a public nature should take effect until July 4, next after its passage at a regular session, and that acts passed at a special session should go into operation ninety days after the adjournment of the Legislature that passed them, but added, " If the general assembly deem any law of immediate importance, they may provide that the same shall take effect by publication in newspapers of the State ;" it was held that a direction to that effect implied such a determination. 27 ] 23 State v. Dean,9Ga. 405. comp. 26 Johnson v. Ry. Co., 23 111. ante, § 327. 202. (a) Wright v. Legge, 6 Taunt. " State v. Donehey, 8 Iowa, 396. 48. It was there also held that the act, 24 People v. Lawrence, 36 Barb, as published in the newspapers, (N. Y.) 177; ante, § 375. corresponding with the act on tile 25 State v. Noyes, 47 Me. 189. in the office of the Secretary of 596 [MPLI0ATI0N8. [g 422 1 1 — — • Implications not Extended beyond what is Necessarily- Implied. — But the extension of an enacl ment by implication is confined to its strictly necessary incidents or logical conse- quences. When, for instance, a statute requires the perform- ance of a service, it implies no provision that the person per- forming it shall be remunerated (a). \ Nor, where the usual compensation is reduced, is there any implication that the claim for the reduced compensation shall have precedence of others.'""'] An Act which empowered jus! ices to discharge an apprentice from his apprenticeship, if ill-treated by his master, would not inferential ly empower them to order a return of the premium ; for however just it might be that such a return should be made, and convenient that it should be ordered by the tribunal which cancelled the indenture, such a power was not the logical or necessary incident or result of that which was expressly conferred (b). Although the 33 6 34 Vict. c. 93 absolved a husband from liability for the antenuptial debts of his wife, and made the latter capable of being a trader, and " liable to be sued for," and her separate property subject to satisfy, her debts, u as if she had continued unmarried ;" a married woman having separate property, was not, as a logical consequence of such liabilities, liable to be made a bankrupt (c). [Similarly, under the New Jersey married woman's act, which gave her merely the right to hold her property free from the control of her husband, it was held that the jus disponendi was not a necessary incident of the jus tenendi. 29 And under a similar act in Pennsylvania, which gave to married women the power to make their property liable for the payment of necessaries purchased by them, it was held that there was, in this grant, no necessary implication of power to give written obligations for the pay- ment of debts thus contracted, or to confess judgment there- State, was to be deemed the law, (6) "R. v. Vandeleer. 1 Stra. 69;. although differing from the act as East v. Pell, 4 M. A: W. (>G5. published in the session laws. (c) Exp. Holland, L. li. 9 Ch. (a) Per LordAbingerin Jones v. 307; Exp. Jones, 12 Ch. D. 484. • armavthen, 8 M. & W. 605 ; R. v. See Guthrie v. Fisk, 3 B. & V. Hull, 2 E. & 15. 182 ; R. v. Allday, 178; lie Frankland, L. li. 8 Q. B. 7 I.I. 799. Sec, also, Alresford V. 18. Scott, 7 Q. B. D. 210. 29 Naylor v. Field, 29 N. J. L. 88 People v. Williams, 8 Cal. 97. 287. ^ 423] IMPLICATIONS. 597 for. 3i Nor does an act giving to the wife the fruits of her own labor imply a right in her to abandon her husband, without his consent, for the purpose of acquiring earnings for her separate use, or to neglect or avoid, for such purpose, the duties the marriage relation imposes upon her. 31 A statute giving half the penalty imposed by it to the com- plainant does not impliedly give the latter authority to bring an action for the penalty in his own name. 33 Nor would the grant of a power to construct a railway on one side of a town imply a right to make a temporary location on the other ■side. 33 Nor does a power of sale given to municipal officers imply a power to exchange or barter. 34 ] § 423. Protection Implied in Grant, etc., of Powers, Duties, etc — If the Legislature authorizes the construction of a work or the use of a particular thing for a particular purpose, the permission carries with it impliedly an exemption from responsibility for any damage arising from the use, without negligence ; as, for instance, when haystacks are fired by locomotive engines plying on railways («). So trustees and official persons who are authorized to execute a work, such as to raise a road, to lower a hill, or to make a drain, are impliedly authorized, if necessary for the due execution of their task, to prejudice the rights, or injure the property of third persons (b). But when an Act confers such powers, 30 Glyde v. Keister, 32 Pa. St. 10 C. B. N. S. 89 ; 31 L. J. 12 ; 85 ; Brunner's App., 47 Id. 67, 74. Blyth v. Birmingham Wsiter-works See, also, Swing v. Woodruff, 41 Co., 7 Ex. 212; "Dunn v. Birming- N. J. L. 469. But see Williams- ham Canal Co., L. R. 8 Q. B. 42; port v. Com'th, 84 Pa. St. 487, Hammersmith R. Co. v. Brand, L. where it is said, with reference to R. 4 H. L. 171 ; Cracknell v. Thel- a municipal corporation, that the ford, L. R. 4 C. P. 629 ; Geddis v. power to contract a debt implies Bann Com., 3 App. 455, per Lord the right to issue the proper Blackburn. [Whart., Negligence, acknowledgment, i. e., bonds, § 869, citing to same effect the therefor. following American cases : Sheldon 31 Douglas v. Gausman, 68 Ilk v. R. R.Co., 14 N. Y. 218 ; Hinds 170. See. also, Randall v. Randall, v. Barton, 25 Id. 544; Road v. R. 37. Mich. 563. R. Co., 18 Barb. (N. Y.) 80; 32 Smith v. Look. 108 Mass. 139. Phila., etc., R. R. Co., v. Yeiser, 33 Currier v. R. R. Co., 11 Ohio 8 Pn. St. 366; Frankfort, etc., St. 228. Turnp. Co. v. R. R. Co., 54 Id. 34 Cleveland v. State B'k, 16 345 ; Bait., etc., R. R. Co. v. Wood- Ohio St. 236. ruff, 4 Md. 242 ; Jefferis v. R. R. («) R. v. Pease, 4 B. & Ad. 30; Co., 3 Houston (Del.) 447. See. Vaugliau v. Taff Valley R. Co., 5 also, Shearman & Redfield, Negli- H. & N. 679 ; 29 L. J. 247 ; Free- gence, §332.] mantle v. London &N. W. R. Co., (b) Per Williams, J., in White- 598 IMPLICATIONS. [§ 423 it also impliedly requires that they shall be exercised only for the purposes for which they were given, and subject to the conditions which it prescribes, and also with due skill and diligence, and in a way to prevent, a needless mischief or injury {a). A power, for instance, to establish asylums for the sick would not authorize the establishment of a small- pox hospital in such a place or circumstances as to be a common nuisance (b). [So, where the state's right of eminent domain is committed to a corporation, and by virtue of the same the latter may lawfully enter upon the land of an indi- vidual and build all structures proper to accomplish the purpose of its charter, this power does not justify unskill- ful n ess or unnecessary injury in the mode of performing the work, or in the character of the structures erected. 36 And further, as a grant of fish in a pond does not carry with it an authority to dig a trench to let the water out to take the fish, since they can be taken by nets or other devices, without doing such damage (c) ; so, a statute does not give by implication any powers not absolutely essential to the privilege or property granted. An authority to construct a sewer on the land of another, for instance, would not carry with it the right to lateral support from the land, if it was possible to construct an adequate sewer independent of such support (d). If land is vested by Act of Parliament in persons for public purposes, a power of conveying away any part of it would not be impliedly granted (e). [Similarly, where a railroad company has the right, subject to liability for compensation, house v. Fellowes, IOC. B. N. S. Compare Wharton, Neg., §§ 872, 780 ; Sutton v. Clarke, 6 Taunt, el seqq. ; Redfield, Railroad, pp. 34 ; Stainton v. Woolrych, 23 Beav. 157, 170, 171, 454; also, ante, 225 ; 26 L. J. 300. § 251. (a) Jones v. Bird, 5 B. & A. 837; (c) Finch's Disc, on Law, 63; Grocers' Co. v. Donne, 3 Bing. N. Gearns v. Baker, L. Ii. 10 Ch. C. 84; Clothier v. Webster, 12 C. 855. 15. .V S. 750 ; 31 L. J. 316 ; Law- (d) Metro)). Board v. Metrop. rence v. G. N. It. Co.. 10 Q. B. Railway Co., L. K. 4 C. P. 192. 643; Collier v. Middle Level See Roderick v. Aston Local Board, ( lommrs., L. R. 4 C. P. 279 ; Geddis 5 Ch. 1). 880. v. Banjn Com., 3 App. 430. (e) Wadmore v. Dear, L. R. 7C. (6) Metrop. Poor Act. 1867, s. 5 ; P. 212 ; Tipper v. Nichols. 18 C. Metrop. Asylum District v. Hill, B. N. S. 121, 34 L. J. 61 ; Mulliner App. 193 ; 50 L. J. 858. v Midland Ky. Co., 11 Ch. D. (ill, P. F W. & C. Ry. Co. v. 48 L J. 258. Gilleland, 56 Pa. St. 445, 452. § 424] IMPLICATIONS. 599 to take land to a certain width, for the construction and operation of its roadway, " after the right has been exercised, the use of the property must be held in accordance with and for the purposes which justified its taking. . . Hence it is that no one can pretend that a railroad com puny may build private houses and mills, or erect machinery, not necessarily connected with the use of their franchise, within the limits of their right of way. If it could, stores, taverns, shops, gro- ceries and dwellings might be made to line the sides of the road outside of the track — a thing not to be thought of under the terms of the accjuisition of the right of way." 36 ] § 424. implied Obligations. —The concession of privileges or powers carries with it, often, implied obligations. For instance, an Act which gives a power to dig up the soil of streets for a particular purpose, such as making a drain, impliedly casts on those thus empowered the duty of filling up the ground again, and of restoring the street to its original condition (a). If it imposed a liability on one person to keep in repair a work in the possession of another, it would be understood as impliedly imposing on the latter the obli- gation of giving notice of the needed repair to the party liable (b). A public body, authorized to make a bridge or towpath and to take tolls for its use, is impliedly bound to keep it in proper repair, as long as it takes the tolls, and in- vites the public to use the work ; or at least, to give those whom they invite to use it, due warning of the defect which makes it unfit for use (c). [So, a city being, under powers given it by its charter, etc., in possession of a public wharf and exercising exclusive supervision and control over it, and 3fi Lance's App., 55 Pa. St. 16, (a) Gray v. Pullen, 5 B. & S. 970, 25 So a grant of a right of way, 34 L. J. 265. fifty feet wide, by a city to a rail- {b) London & S. E. R. Co. v. road over a small strip of land. Flower, 1 C. P. D. 77; Makin v. through a densely populated part Watkinson, L. R. 6 Ex. 25. See of the city, conveys only so much Scaltock v. Harston, 1 C. P. D. ground as'is necessary for the line 106 ; Brown v. G. E. R. Co., 2 Q. of the road, and will not carry, by B. D. 4(J6. implication, the right to erect, (c) Winch v. Conservators of the within such line, depots, car-houses, Thames, L. R. 7 C. P. 458, 9 C. P. or other structures for the conveni- 378 ; Nicholl v. Allen, 1 B. & S. ence or business of the road : 934, 31 L. J. 283, 431 ; Forbes v. Allegheny v. R. R. Co., 26 Pa, St. Lee Cons. Board, 4 Ex. D. 216. 1 6 355. 600 OIPLICATIONS. [§ 424 receiving tolls for its use, is bound to keep it in proper con- dition for rise." And, of course, where a statute authorizes a person to build a road and collect tolls thereon, requiring him to macadamize it, and declaring a forfeiture of all rights icquired under it upon failure to comply with the act, he can- not be permitted to collect toll.^ when he has macadamized only part of the road. 88 ] If statutory authority is given to persons, primarily for their own benefit and profit, rather than for any advantage which the public may incidentally derive, such as to cnt through a highway and throw a bridge over the cutting, or to substitute a new road for the old one ; the burden of maintaining the new work in repair would impliedly be cast on them, and not on the county or parish (a.) Another duty which would also be impliedly imposed on them by such an enactment would be that of protecting the public from any danger attending the use of the new work. If it was a swing bridge, for instance, they would be bound to take due precautions to prevent persons from attempting to cross it, while it was open (//). If the work was a railway, crossing a highway on a level, they would be impliedly bound to keep the crossing in a proper state to admit of the use of the highway by carriages, without damage to them (c); [and, at an established level crossing, where there is a footpath, to place lights at night. 39 ] And this implied obligation would not be excluded on the princi- ple expressum facit cessare taciturn, by the fact that certain duties are expressly imposed by statute on railway companies who make such crossings; ex. gr., to erect and maintain o-ates where the public road crosses the railway, and to employ men to open and shut them, and to keep them closed except when carriages have to cross (d). So, notwithstand- ing all such express provisions, the company would be bound, by implication, to prevent all passage along the portion 31 Pittsburgh v. Gricr, 22 Pa. St. Co., 29 L. J. M. C. 151. :,! (b) Mauley v. St. lleleu's Co., 2 ^ State v. Curry, 1 Nuv. 251. H. & N. 840, 27 L. J. 159. (a) R. v. Kent, 13 East, 220 : R. (c) Oliver v. N. E. II. Co., L. R. v. Lindsay, 14 East, 317; It. v. 9 Q. B 409. Kerrison, 3M. &S. 526 ; R. v. Ely, 89 Whart., Neg., § 808a, and in Q. U 827; North Staffordshire cases cited in notes to same. It. Co. v. Dale, 8 E. & B. 836; (rf) Id. ; G. E. R. Co. v. Wan- ch v. North Staffordshire It. less, L. It. 7 II. L. 12. <§§425,426] implications. 601 -of the highway thus intersected, when it was dangerous to cross (a). [And even where a company, having the right to cut through the street of a city, was not bound by its charter to put up barriers for the protection of travelers upon the street, it was held liable for the neglect of its employees in not putting up the barriers at night, which the company had voluntarily placed there for safety. 40 " It is not true that all the defendant's duties and liabilities are created and pre- scribed by the act of incorporation. Corporations as well as individuals, by the principles of the common law, are bound so to exercise their rights as not to injure others. The principle, sic utere tuo ut alien um non laedas, is of universal application." 41 ] But power to pull down the wall of a house without causing unnecessary inconvenience would not im- pliedly involve the obligation of putting up a hoarding for the protection of the rooms exposed by the demolition (b). § 425. One Duty may Imply Another in Same Person. — Some- times the express imposition of one duty impliedly imposes another. Thus, when it was enacted that no license should be refused except on one or more of four specified grounds, the obligation was imposed by implication on the justices, of stating on which of the specified grounds they based their refusal (c). The Ballot Act of 1872, which imposes, in express terms, certain specific duties on the presiding officers at polling stations, casts also on those officers, by implication, the duty of being present at their stations during an election, and of providing the voters with voting papers bearing the official mark required by the Act (d). § 426. Right or Duty in One may Imply Duty in Another. — A duty or right imposed or given to one, may also cast by (a) Lunt v. London & N. W. R. land, ubi supra, wbere the corn- Co., L. R. 1 Q. B. 277. pany was held liable for negligence 40 Lowell v. B. & L. Corp'u, 1 in making an excavation "near to Am. Railw. Cas. 289, cited in P. anotber's bouse, which caused it to F. W. & C. Ry. Co. v. Gillelaud, fall upon the house of the plaintiff 56 Pa. St. 445, 450. and injure it.] 41 Ibid. (c) 32 & 33 Vict. c. 27, s. 8; R. v. (6) Thompson v. Hill, L. R. 5 Sykes, 1 Q. B. D. 52 ; Exp. C. P. 564. [Com p. Davis v. Ry. Smith, 3 Q. B. D. 374. Co., 2 Engl. Ry. Cas. 225, cited in (d) Pickering v. James, L. R. S P., F. W. & C. Rv. Co. v. Gille- C. P. 489. 602 implications. §§ 427, 428 implication a corresponding bin then on another, as in tho case of the proviso in the Commission of the Peace, requiring the Quarter Sessions n<>r to give judgment in cases of difficulty unless in the presence of one of the Judges of Assize ; which impliedly requires the judge to give his opinion (a). So, the Charitable Trusts Act, 1855, which enacts that it shall not be lawful for the trustees of a charity to make any grant otherwise than (among other things) with the approval of the Charity Commissioner.-, was considered as requiring the Commissioners to give their approval in a <-ase where the grant was made before the Act was passed {by § 427. Grant of Right to One may Imply Right in Another. — The grant of a privilege or of property to one, sometimes impliedly gives a right to another person. Tims, an Act which empowered a hospital to take and hold lands by will, gift, or purchase, without incurring the penalties of the Mortmain Acts, was held to empower persons to devise or convey lands to it ; it being considered that the Act would otherwise be nugatory (c). [An act empowering a city to subscribe its bonds for a certain railroad company's stock, by necessary implication confers authority upon the company to receive the subscription. 42 ] And yet an Act which gave one railway company power to purchase certain lands and to construct a railway, according to the deposited plans and books of reference, would not give by imp.ication to another company the correlative power to sell any of those lands to it (d). § 428. Implied Conditions in Gram of Judicial Powers. — Again, in giving judicial powers to affect prejudicially the rights of person or property, a statute is understood as silently implying, when it does not expressly provide, the condition or qualification that the power is to be exercised in accordance with the fundamental rules of judicial procedure, such, for (a) Per cur. in R. v. Chant icll. Comp. Nethersoll v. Indig. Blind, L. It. 10 Q. B. 587. L. II. 11 Eq. 1. C>) Moon v. Church, 1 Ch. D. 4i Clark v. Janesville, 10 Wis. •147. 130. (c) Perring v. Trail. 18 Eq. 88, (f/) R. v. S. Wales R. Co., 14 Q b. m. § 428] IMPLICATIONS. 603 instance, as that which requires that, before its exercise, the person sought to be prejudicially affected shall have an opportunity of defending himself (a). On this ground, under the 4 & 5 "W. 4, c. 76, which authorizes justices " at their just and proper discretion" to order out-door relief to an a issue a distress warrant to enforce a rate or other charge, even though it directed them to issue it "on proof of demand and non-payment," would nevertheless be construed as impliedly requiring that they should not do so, without first summoning the party against whom it was demanded, and giving him a hearing against the step proposed to be taken against him (a). A power to remove a person from his office or employment for lawful cause only, would, on the same principle, involve the con- dition that it was to be exercisable only after a due hearing, or the opportunity of being heard, had been given to the person proposed to be removed (b). But it would, of course, be different if the person was removable arbitrarily, and without any cause being assigned (c). It is obvious that where an act which creates a new jurisdiction, gives any person dissatisfied with its decision an appeal to another judicial authority, which is empowered to confirm or annul the decision, as to it shall appear just and proper, the right of being heard in support of his appeal is impliedly given to the appellant (d). Under the provision of the first County Court Act (3 & 9 Vict. c. 95), which empowered the Judge l to summon a judgment debtor, and, if satisfied that he had the means of paying his debt, to order him to pay it either in one sum or by instalments, and if he failed to obey, to commit him to jail; it was held that an order to pay by future instalments, and in default of paying any of them to (a) See Harper v. Carr, 7 T. R. applied to taxation, see MeMillen 270 ; R. v. Hughes, 3 .V. & E. 435; v. Anderson, 95 U. S. 37 ; Pearson Painter v. Liverpool Gas Co., Id. v. Yewdall, Id. 291; Stewart v. 133. [It would seem that a simi- Palmer, 71 N. V. 183; Fox's App., lar implication would have to be 112 Pa. St. 337; State v. Allen.^ 2 made, in this country, in tin' case BtcCord (S. C.) 55 ; Cooley, Tax'n, of similar statutes, under the vari- 262. mu- constitutional provisions lor- (&) R. v. Smith, 5 Q. B. 614. bidding the taking of a man's prop- [Sec ante, £ 148.] erty except by due process of law, (c) Exp. 'Peat her, 1 L. M. A P. which implies notice and bearing: 7; R. v. Darlington School, 6 Q. Craig v. Kline, 85 Pa. Si. 399; B. 682 ; Exp. Sandys, 4 B. & Ad. Philadelphia v. Scoil, St Id. 80; 863. Pennoyer v. Nell'. 95 U. S 714 ; (d) R. v. Archbishop of Canter- Davidson v. New Orleans, 96 Id. bury, 1 E. A E. 545, 28 L. J. 154. 97: South Platte Land Co. v. See other instances, Be Phillips' Buffalo, 7 Nfb. 253; Zeigler v. R. Charity, 9 Jur. 959 ; /;uao;e of the Act was not inconsistent with the general principle that a person ought not to be punished without having had an opportunity of being heard, it was construed as tacitly embodying it. The Judge could not properly exercise any discretion until the time of commit- ment (a). It would be different where the statute gave a power of immediate commitment in default of immediate payment (b)~ And again, if the opportunity of defence was provided at another stage, there would be no adequate ground for thus implying the condition in question. For instance, when a statute provided that if a rent-charge was in arrear, it might be levied by distress, and that if it remained in arrear for. forty days, and there was no distress, a Judge, upon an affidavit of these facts, might order the sheriff to summon a jury to assess the arrears unpaid ; it was held that such an order might well be made ex parte. The party subject to prejudice had his opportunity of defence before the sheriff (.. cit Harding v. Vande- v. Gresley, 8 Ed. 319 ; Grindlay v. water, 40 Cal. 77. Barker, 1 B. & I'. 229 ; Cook v. 4 * Cit. Stow v. Wyse, 7 Conn. Loveland, 2 Ed. 31 ; R. v. .Mills, 2 214. B. A: Ad. :»sr ; R- v. Totnes, 11 41 Cit. Smyth v. Darley. 2 II. L. (). B. 80; R. v. Aldborough, 13 Cas. 789, and referring to People (,). B. 190. v. Batchelor, 22 N. V. 128. 48 See cases in note (e) preceding 48 Pike Co. v. Rowland, supra, page; Gashwiller v. Willis, 38 (c) Re Hopper, L. It. 2 Q. B. I. 11 ; Conro v. Iron Co., 12 367. § 431] IMPERATIVE — DIRECTORY. 607 understood, unless the contrary be expressed or plainly implied, to be intended to be exercised according to the general inherent powers of the Court (a). [And wherever a judge is allowed or directed to use his legal discretion — and all discretion conferred upon courts is legal discretion 49 - upon a certain state of facts, he can only do so after those facts have been judicially made known to him, i. e., by legal proof. 60 ] It has been already mentioned that when a power is conferred to do some act of a judicial nature, or of public concern and interest, there is implied an obligation to exer- cise it, when the occasion for it arises (5). This implied obligation is usually said to modify the language creating the power, when permissive, by making it imperative ; but it seems to be a matter of implied enactment, rather than of verbal interpretation. § 431. Distinction between Imperative and Directory Provis- ions. — When a statute requires that something shall be done, or done in a particular manner or form, without expressly declaring what shall be the consequence of non-compliance, the question often arises, what intention is to be attributed by inference to the Legislature. Where, indeed, the whole aim and object of the Legislature would be plainly defeated if the command to do the thing in a particular manner did not imply a prohibition to do it in any other, no doubt can be entertained as to the intention. The enactment, for instance, of the Metropolitan Building Act (c), that the walls of buildings shall be constructed of brick, stone, or other in- combustible material, though containing no prohibitory words, obviously prohibits by implication and makes illegal their construction with any other {d). [Where an act in relation to certain claims against the state, otherwise not allowable, required them to be presented within a certain time, thereby, indeed, making a distinction between these and ordinary claims, as to the time of presentment, it was (a) Dale's Case, 6 Q. B. D. 450. annulled uud rescinded : Ibid. 49 See ante, § 147. (b) See ante, §£ 307-308, 313-314, 50 Madden v" Fielding, 19 La. An. 424, 428. 505.*" Hence an ex parte order for (c) 18 & 19 Vict. c. 122, s. 12. alimony to the wife, the plaintiff (d) Stevens v. Gourley, 7 C. B. in a divorce proceeding, was N. S. 99, 29 L. J. 1. * See Addenda to § 150. 608 IMl'KItATIVE — DIRECTORY. [>M ;; > held thai presumptively thai limitation was intended to be material and consequently that it musl be followed." Under an act directing that written and sealed bids shall be received until a certain day, upon which they are to be opened, it was held that all bids coming in after that day must be rejected.™] Again, where compliance is made, in terms, a condition precedent, to the validity or legality of what is dune ; as when, for example, the deed of a married woman was to take effect " when " the certificate of her acknowledg- ment of it was filed (a); or where it was provided that no appeal should be entertained "unless" certain rules were complied with (h) ; [or where the doing of a thing was prohibited " until ' : another had been done ; M or where certain certificates were declared transferable " only " in a certain prescribed manner ; 54 ] the neglect of the statutory requisites would obviously be fatal. But the reports are full of cases without any such indica- tions of intention ; in some of which the conditions, forms, or other attendant circumstances prescribed by the statute- have been regarded as essential to the act or tiling regulated by it, and their omission has been held fatal to its validity ; while in others, such prescriptions have been considered as merely directory, the neglect of which did not affect its validity, or involve any other consequence than a liability to a penalty, if any were imposed, for breach of the enactment." 51 Corbet t v. Bradley, 7 Nev. of its provisions operate merely as 106. advice or direction to the official or 62 Webster v. French, 12111. 802. other person whoistodo something Comp. Free Press Ass'n v. Nichols, pointed out, leaving the act or 45 Vt. 7, post, § 486. omission not destructive of the (a) 3 & 4 YV. 4. c. 74, s. 85; Jolly legality of what is done in disregard v. Hancock, 7 Ex. 820,22 L. J. of the direction:" Bish., W'r. L., lis. §255. " A statute is called manda- (&);}•.' & 33 Met. c. 71 ; lie tory when, if not all its provisions Dickinson, 51 L. J. Ch. D. 736. are complied with according to ; Slavton v. Hulings, 7 Ind. their terms, the thing done is, as to 144. it, void:" Id., §254. These "Union B'k v. Laid, 2 Wheat. descriptions accurately state the 390. results of action and non-action in 65 Tlic distinction between these conformity with or disregard ol two classes of statutes or statutory the provisions of statutes which provisions is ordinarily expressed are either directory or mandatory, by denominating the latter " direc- But to answer the purposes of tory," the former " imperative," definitions, it would seem to be or, in this country, more usually, more logical, as well as precise, to "mandatory." "A statute is say. that a statute or statutory termed directory when a part or all provision is directory when t In I 432] IMPERATIVE — DIRECTORY. 609 The propriety, indeed, of ever treating the provisions of any statute in the latter manner has been sometimes ques- tioned (a) ; but, [whilst it must be conceded, that, the power to declare a statute to have merely directory force verges so- close!)' upon legislative discretion as to be exercisable by courts only with reluctance and in extraordinary cases, 68 it is nevertheless] justifiable in principle as well as abundantly- established by numerous authorities. 57 8 432. Tests. Negative and Affirmative Words [It has been intimated that affirmative words relating to the manner in which power or jurisdiction vested in a public officer or body is to be exercised, and not to the limits of the power or jurisdiction itself, may, but negative words going to the power or jurisdiction itself cannot, be directory ; 68 and that, in general, negative words will make a statute imperative. 66 Accordingly, where an act directed that no debt or contract should be binding upon a city unless it be authorized by ordinance, and an appropriation sufficient to pay it be previ- ously made by councils, a clerk employed by one of the municipal boards at a salary of $2,000, councils having ap- propriated only $1,400 for that purpose, could recover noth- ing beyond the latter sum from the city ; 60 and under an act declaring that no man shall be permitted to vote at an elec- Legislature intended that strict Sedgwick on Interp. of Stats. 375. couxpliance with it should be left 6G Dryfus v. Bridges, 45 Miss, to The discretion of the party 247, — and, it is added, never where- empowered to act under it and the the act or omission can by any convenience and necessities of the possibility work advantage or occasion upon which it was to be injury, however slight, to any one- applied, and did not intend that a affected by it. And see Best v. failure to exercise the power con- Gholson, 89 111. 465. ferred, or a failure of exact con- 61 If a statute is directory as to fortuity with all the prescribed the principal affected by it, it is details in the execution of it should equally so as to his sureties and render the same void; whilst a those incidentally affected : Looney mandatory statute or provision v. Hughes. 30 Barb. (N. Y.) C05. would bcone which the Legislature bS Per Sharswood, J., in Bladen intended to be strictly complied v. Philadelphia. 60 Pa. St. 464, with, contemplating an exercise of 466. See, also, Dryfus v. Bridges, the power conferred in it at all supra; State v. Baker, 9 Rich. Eq. events and exact conformity with (S. C.) 521; State v. Harris, 17 the prescribed details in the execu- Ohio St. 608. tion of it as a condition of the 69 He McDonough's Election. 105 legality and validity of the same. Pa. St. 488, 494, citing State v. (a) Per Martin. B.. in Bowman v. Hilmantel, 21 Wis. 566. Blytb, J E. & B. 47, 2? L. J. 22 ; 60 Bladen v. Philadelphia, supra. 39 610 IMPERATIVE- — DIRECTORY. [§ -i ;> >~ tiuii whose oarae is not apon the registry list, unless he shall make certain proofs, required by the act, of his right to vote, it was held that preliminary proof, in the manner required by the act, of his qualifications was essential to constitute an unregistered elector a legal voter, and that, such proof not having been made before the vote was received, it could not be made on the trial of a contested election so as to legalize the vote." And similarly, where there was no registry of the voters of a town, ami none of the persons who voted there at an election furnished affidavits required by law to entitle the vote of an unregistered elector to be received, the whole vote of the town was rejected. " But this effect was denied to a similar enactment notwithstanding its express negative terms, on the ground that the prohibition of the Mat ute was directory. 63 And it would seem, that, as a rule v a change of grade from the original location of a street therein.— a right rest- ing solely upon the statute which gives it, — be enforced in any way except that pointed oul by the statute/' § 435. Acts Relating to Judicial Procedure.— [Where author- ity to proceed in courts of justice is conferred by statute, and where the manner of obtaining jurisdiction is prescribed by statute, the mode of proceeding is mandatory and must be strictly complied with, or the proceeding will be utterly void;" and] enactments regulating the procedure in courts seem usually to be imperative and not merely directory (a). If, for instance, an appeal from a decision be given, with provisions requiring the fulfillment of certain conditions, such as giving notice of appeal and entering into recogniz- ances, or transmitting documents within a certain time, a strict compliance would be imperative, and non-compliance would be fatal to the appeal (b), [even where (me of the defendants was confined in prison during the period allowed for perfecting the same. 83 So, a provision requiring the 80 Pittsburg v. Walter, 69 Pa. St. 365. And see 8. P. Pensacola v. Wittich. 21 Fla. 492. 81 Belt /.hoover v. GollingS, 101 Pa. St. 293: even independently of the act of 1806 (see ante, § 433 note): Ibid. «-' Norwegian Str., si Pa. Si. 841). 354 ; Seymour v. Jucld, 2 N. Y. 464. (a) See, however, post, § 436, aote, and § 445. (6) R. v. Oxfordshire, 1 M. & S. 446 • R. v. Carnarvon. -1 P. & A. 86 ; R. v. Bond, 6 A. & E.905; R. v. Morgan n Lancashire, 8 E. & B. 563 Edwards, 5 II. A- N. 415- Woodhouse v. Woods, 29 L. .1. M. ('. 139; Fox v. Wallis, '2 C. 1' 1). 45. [See Stafford v. Bank, Hi How. 135 ; 17 Id. 275 ; Stafford v. (anal and B'k'g Co.. [d. 283; Kirk v. Armstrong, Hemps. 283; Wilson v. Palmer, 75 N. Y. 250; Lane v. Wheeler, lot 1.1. 17: 111. \V. R. R. Co. v. Gay, 5 111. App., 393 , Mai.' v. Jones, 1 1 b.wa. 1 I ; Pratt v. Stage Co., ^»i hi. 241 ; King v. McCann, 35 Ala. 171 ; Mays v. King, 28 Id. 690 ; Coff- inaii v. Davaney, 2 Miss. 854 ; Dawson's App.,*" 15 Pa. St. 480; Cherry Overseers v. Marion Over- seers, 96 Id. 528 ; Road in Salem Tp., 103 Id. 250; Providence Co. v. Chase, 1(W LI. ;;ii) ; Whipley v. Mi'us, 9 Cal. 641 ; Hildreth v. Gwindon, 10 Id. 490 ; Elliott v. Chapman, 15 Id. 383 ; Gordon v. Wansey, 19 Id. 82 ; Dooling v. Moore, 20 Id. 14; Mayer v. Prud'homme, 1 La. An. 2:10 ; Sears v. Willson, 4 Id. 525; Wood v. Wall. 5 Id. L79 ; Knight v. Bean, is Me. 217; Maxwell v. Wessels, ; Wis. 103; Brown v. Ry. Co., 83 Mo. 178; Harris v. Gest, 4 Ohio Si. 469 : McLaughlin v. Stale. 66 Ind. l!):l ; Plow v. Wilson. 8:j 1,1. 391 ; Clinton v. Phillips, 7 T. B. Mon. (Ky.) L17 ; Campbell v. Allison, 63 N. <'. 568; Jeffery v. Marshall, 1 Ark. 47 ; Bay ley v. Hazard, 3 Yerg. (Tenn.) 487; Lvall v. Guadaloupe Co., 28 Tex. 57 ; Zeckendorf v. Zeckendorf, 1 Ariz. 401.] --inn;' v. Eisman, 1 Paw 'i .. §435] IMPERATIVE — DIRECTORY. 017 party issuing an attachment, to give bond with a penalty, •condition and sureties, was held imperative, and its observance indispensable in order to the validity of the process." 4 ] The same imperative effect seems, in general, presumed to be intended, even where the observance of the formalities is not a condition exacted of the party seeking the benefit given by the Statute, but a duty imposed on a Court or public officer in the exercise of the power conferred on him ; when no general inconvenience or iniustice calls for a different construction. The 5 Eliz. c. 5 requiring that the writ de -contumace capiendo shall be brought into the Queen's Bench, and be there opened in the presence of the judges, the omis- sion of this apparently idle ceremony was deemed fatal to the validity of an arrest made in pursuance of the writ, though it had been enrolled in the Crown Office (a). An enactment which provided that every warrant issued by a Court should be under its seal, was equally imperative, and not only was a commitment under an unsealed warrant invalid, but the person who had obtained it without taking care that the Court performed its duty of sealing it, was liable in damage to the person arrested under it (h). This was hard on the former, but it was essential for the latter that the warrant should be duly authenticated. [Equally imperative are provisions requiring the person serving a summons to endorse thereon the date of service ; 85 provisions relating to the time of levy, 56 or requiring sheriff's sales to be held at the court house. 87 ] If commissioners, authorized to fix the N. S. (Pa.) 123. But where the 87 Dryfus v. Bridges, 45 Miss, last day allowed is dies non, the 247. But statutes relating to the next day is in time: Rose's Est., 63 time and manner of summoning €al. 346. And see ante, § 393. and bringing in jurors are said to 84 Blake v. Sherman. 12 Minn. be largely directory : Johnson v. 420. As to such powers and pro- State, 33 Miss. 363 ; State v. cedure and the strict construction Smith, 67 Me. 328 ; State v. Pitts, and pursuance of acts giving them, 58 Mo. 556 ; State v. Carney, 20 ante. § 351. Iowa, 82; State v. Gillick, 7 Id. (a) 'Be Dale, 7 App. 240, 50 L. 287; Bish., Wr. L., § 255; and J. Q. B. 234. see Colt v. Ives, 12 Conn. 243 ; and (b) Exp. Van Sandau, DeG. 303. so statutes providing for other steps So, a rate under the Pub. Health in a judicial cause : Bish., Wr. L., Act, 1848 : R. v. Workshop Board, ubi supra ; where the provisions, 5 B. & S. 95. though in the nature of commands 85 Wendel v. Durbin, 26 Wis. to an officer or court, do not con- 890. fer rights on parties, in which S6 People v. McCrcery, 34 Cal. case they are generally mandatory: 432. Ibid. <»1S IMPERATIVE — DIRECTORY. [§ 436 boundaries of a parish, were required by the Act to advertise the boundaries which they fixed, and to insert them in their award, and the Acl declared that the boundaries " so fixed " should he conclusive; a variation between the boundaries set forth in the award and those advertised would vitiate the award, as the requisites of the Act would not have been complied with (a). [So, where an act permitted the appoint- ment of viewers by the court to layout a road, upon petition designating t he termini, a report of the viewers appointed upon such a petition showing an apparent departure from one of the termini designated therein, is not a compliance with the order or statute.** The provision of the Union Assessment Act of 1802, regarding the deposit of thu valua- tion list for inspection was held obviously imperative : for the omission would have left persons aggrieved by any alterations, without a timely opportunity for appealing (b). § 436. Regulations, etc., of Acts Relating to Performance of Public Duties Directory.— On the other hand, the prescriptions of a statute [often] relate to the performance of a public duty; and to affect with invalidity acts done in neglect of them would work serious general inconvenience or injustice to persons who have no control over those intrusted with the duty, without promoting the essential aims of the Legis- lature. [In such case, they are said not to be of the essence,. of the substance of the thing required, 8 " and, depending upon this quality of not being of the essence or substance of the thing required, 80 compliance being rather a matter of convenience, and the direction being given with a view- simply to proper, orderly and prompt conduct of business, 81 they seem to be generally understood as mere instructions for the guidance and government of those on whom the duty is imposed, or, in other words,] as directory onl}\ The (a) R. v. Washbrook, 4 B. & C. 199. TScp. infra, note 101.] 732; R. v. Arkwright, 12 Q. B. 89 People v. Cook, 14 Barb. •iiiii (N. Y.) 290 ; 8 N. Y. 67 ; Norwe- » 8 Boyor's Road, 37 Pa. St. 257 ; gian Sir., 81 Pa. St. 349 ; McKuno Seidel's Road, 2 Woodw. (Pa.) v. Wells, 11 Gal. 49 ; Ilurford v.. 275. Omaha, 4 Net,. 336. - II. v. Chorlton Union, L. R. '■'" See cases in preceding note. - B. 5 : I J. v. Ingall, 2 Q. B. D. 91 Hurford v. Omaha, supra. §436] IMPERATIVE — DIRECTORY. 619 neglect of them may be penal (a), but it does not affect the validity of the act done in disregard of them. It has often been held, for instance, when an Act ordered a thing to be done by a public body or public officers, and pointed out the specific time when it was to be done, that the Act was directory only, and might be com- plied with after the prescribed time (b). [Such is, indeed, the general rule, unless the time specified is of the essence of the thing," or the statute shows that it was intended as a limitation of power, authority, or right. 93 ] Thus, the 13 Hen. 4, c. 7, which required justices to try rioters " within a month " after the riot, was held not to limit the authority of the justices to that space of time, but only to render them liable to a penalty for neglect (c). [Acts which required an officer before whom statutory proceedings against an abscond- ing, etc., debtor are taken, to make report ; 94 a judge trying a cause without a jury to file his decision, 95 a referee his report, 96 or a public officer his official bond, 97 within a certain time, have severally been held directory. So, a direction to sell land for taxes at a certain time, there being nothing in the act from which to imply a prohibition against doing it at a later date; 98 a provision in a statute that the secretary of state should cause it to be published for three months ; 99 and a requirement that notice of assessments on lot owners for grading, etc., should be given by publication for ten days in two daily papers, " that the parties may have an (a) See Ex. gr. Clarke v. Gant, 8 B'k, 3 La. An. 196 ; St. Louis Co. Ex. 252. 22 L. J. 67; [Rodebaugh v. Sparks, 10 Mo. 117 ; Ryan v. v. Sanks, 2 Watts (Pa.) 9, (as to Vanlandingbam, 7 Ind. 416 ; and solemnization of marriages of eases infra. infants) ; post. § 440. See, also, (c) R. v. Ingram, 2 Salk. 593. Tony v. Milbury, 21 Pick. (Mass.) 94 Wood v. Cbapin, 13 N. Y. 67.] 509. (b) Per Littlcdale, J., in Smith 95 Stewart v. Slater, 6 Duer v. Jones. 1 B. &Ad. 334. (N. Y.) 83. 9i See, e. g., Webster v. French, 97 registered, etc., 113 have all been held to be merely direc- tory. Such also was the construction of a provision in a <-ity charter requiring the oath of office to be administered by the mayor to all persons appointed to office under the municipal government," 8 and the provision in an act author- izing a town to issue bonds, to be signed by the chairman of the town board of supervisors and the town clerk, that they should have annexed to them a certain certificate by the clerk of the county board and supervisors as to the official character of the persons subscribing and the genuineness of their signatures. 1 " So, where an act empowered the govern- ment of a city to divide the same into sewerage districts, to devise plans for the sewerage of such districts, and directed that copies of the complete plans should be made and filed in certain municipal offices, and that, upon completion of the plan of sewerage of any district and tiling of copies thereof, contracts might be made, it was held that clearly the latter pro- vision indicated that the making of contracts should not be postponed to the filing of the complete plans, and that the til- ing of the plan of sewerage for a certain district was not a prerequisite to the validity of contracts and assessments for the construction of such district sewer. 1 "] The Poor Law Amendment Act of 1834, in providing that the Com- missioners should direct the elections of one or more guardians for each parish included in the Union, did not make the constitution of the Board of Guardians invalid because one parish refused to elect a guardian (u). The enactment in the Ecclesiastical Dilapidations Act of 1871, which provides that within three months of the avoidance of a benefice, the bishop shall direct the surveyor to report the sum required to make good the dilapidations, is directory only as to the time ; for it was a duty, not a power, which the Statute imposed on the bishop ; and his neglect would otherwise have defeated the object of the Statute by " Il,i,l. " 5 Matter of New York Prot. 1,; Caniff v. New York, 4 E. D. Episc. Publ. School, 47 N. Y. 556. Smith (N. V.) 4:]0. (a) R v. Todmorden, 1 Q. B. 114 Lackawanna, etc., Co. v. 185. Little Wolf, 38 Wis. 152. § 438] IMPEBATTVE — DIEEOTORY, 623 rendering the estate of the late incumbent exempt from liability for his dilapidations (a). The 5 Geo. 4, c. 84, having enacted that when any convict adjudged to trans- portation by any British Court out of the United Kingdom was brought to England to be transported, it should be law- ful to imprison him in any place of confinement provided under the Act, it was held that if the place in which a prisoner was confined was not, one of the appointed places, the officers concerned might be liable to censure, but the detention was not unlawful so as to entitle the prisoner to bo discharged (b). [And though a statute required a bond to secure the rent of a public bridge, a promissory note given instead thereof was held valid ; 116 nor was non-compliance with a statutory requirement of specific designation of the time of commencement of a statute held to preclude its immediate operation where such an intent was apparent ;"' or a deed by a public officer requiring two witnesses to be ineffectual when attested by only one. 118 § 438. Effect of Public Inconvenience and Private Injury. — [On the ground of intolerable public inconvenience, which it would be unreasonable to suppose the Legislature to have intended,] the acts of aldermen who had been in office for several years without re-election, were held valid until their successors were appointed ; the provision that they should be elected annually being regarded as directory only (c). [Simi- larly are treated the provisions of public election laws when necessary to reach a correct result, 119 or sustain the elec- tion — as, e. g., provisions concerning the manner in which the ballot boxes shall be secured after the canvass is com- pleted, 120 or the time during which the polls are to be kept (a) Per Denman, J., in Caldow Aldgate v. Slight, 2 L. M. & P. v Pixcll, 2 C. P. D. 562 ; Gleaves 662. See R. v. Corfe Mullen, 1 B. v Marriner, 1 Ex D. 107. & Ad. 211. [See, for another (/>) Brenan'.s Case, 10 Q. B. 492. instance of this kind, ante, § 432, 11B Central B'k v. Kendrick, Margate Pier Co. v. Ilannam, 3 B. Dudley (Ga.) 66. & A. 266.] 117 Baker v. Compton, 52 Tex. n9 Duncan v. Shenk. 109 Ind. 252. 26; but cocap. Taylor v. Taylor, 10 118 Comm'rs of U. S. Dep. Fund Minn. 107. v. Chase, 6 Barb. (N. Y.) 37. I20 People v. Livingston, 79 N. (c) Foot v. Truro, 1 Stra. 626. Y. 279. See, also, as to arrange- See also, Lorant v. Scadding, 13 ment of ballot boxes : Weil v. il B 687, 19 L. J. M. C. 5, and Calhoun, 25 Fed. Rep. 865. 624 IMPERATIVE — DIRECTORY. [§^38 open, 131 or at which they shall be closed 1 " — and even the requirement of annual elections of corporate officers" 3 and the provisions of a corporate charter and by-laws as to the form of acceptance of official bonds by the directors. 1 " And] it lias been held that the neglect of merely formal requisites in keeping the register of the shareholders of a joint stock company, however fatal for some purposes, is immaterial as between the company and its shareholders. Thus, the pro- vision that the register should be sealed, though essential to its being producible in evidence, is immaterial as regards making a person :i shareholder, if there be in fact a book bona tide intended to be a register. But the neglect to number and appropriate the shares would be fatal (a). And the provisions in the Companies Act of 1S62, directing that a register shall be kept of all mortgages and charges on the property of the company, to be open to the inspection of creditors, and imposing penalties on any of the company's officers who contravene them, are directory, so that they do not affect the validity of unregistered mortgages (h). [So, the rule, whether established by statute, charter or by-laws, that the stock of a corporation shall be transferable only upon its books, is treated as directory in so far that it does not prevent the title to shares from passing by a transfer made otherwise. 125 " But as the stock-book is the evidence of the relation between the member and the association, the certificate being such only secondarily, and as the corpora- 181 Fry v. Booth, 19 Ohio St. 25; Ames, Corp., §§ 254, *84, 319. so that the closing of the polls for (a) Per cur. in Henderson v. one hour for dinner will not vitiate Royal British Bank, 7 E. <&, B. the election, although the law con- 356, 2G L. J. 112; Wolverhamp- templates the keeping open of the ton Water-works Co. v. Hawkes- polls continuously between the ford, 11 C. B. N. S. 450, 29 L. J. prescribed hours of opening and 121, 31 Id. 184; Southampton closing. Dock Co. v. Richards, 1 M. & Gr. 182 Swcpton v. Barton, 39 Ark. 448; London Grand Junction R. 549. Co. v. Freeman, 2 Id. 806. 128 See Bish., Wr. L., g 255 ; (5) Be Marine Mansions Co., L. Angell& Ames, Corp. ,§§142-144, R. 4 Eq. 601; comp. Be Patent 771 ; Hoboken B. A. v. .Martin, 13 Bread Co., I.. R. 7 Ch. 289; Be N. J. Eq. 428. Directions to non- W'ynn Hall Co., 10 Eq. 515;. official persons may lie directory Smith's Case, 5T9. See another equally ;ts those to officials : Bish., illustration in Bosanquet v. Wood- Wr. L., g 255. ford, 5 Q. B. 310. '■' Bank of U. S. v. Dandridge, m Duke v. Nav. Co., 10 Ala. 82. 12 Wheat. 64. And see Whitney See Angell & Ames, Corp., § 354;. v. Eiumett, Baldw. 803 ; Angell & Endl., Build'g Ass'ns, § 440. § 439] IMPERATIVE DIRECTORY. 625 tion itself, when performing a corporate duty, springing out of the membership relation, and not dealing with its stockholder on the security of his stock in a distinct contract relation, need consult nothing further than its own records, whoever would demand the privileges of a stockholder being bound to produce his title, and ask to be permitted to* participate ; it is evident that an assignment of the stock not- entered upon the books, though it passes a perfect title as between the parties to the assignment, is only an equitable transfer, and, to be made absolutely available, and give the transferee the privileges of a recognized stockholder, must be produced to the corporation, and a transfer effected, or, at least, demanded." 126 Consequently, where a member of a building association, who had assigned his stock therein, and delivered the certificate to a bank as collateral security, with power of attorney to transfer, no transfer, however, being made on the books of the association, borrowed money from the latter upon his shares, and upon the corporate books, transferred them to the association, and upon the expiration of the association, its officers distributed its assets amongst the stockholders shown bv the books, including the association, without notice from the bank or to the bank, it was held that they were not liable to the latter on the cer- tificates held by it. 127 ] § 439. Where an Act provided that no beer license should be granted to any person who was not a resident occupier of the premises sought to be licensed, under the penalty of the license being null and void; and it required, further, that the applicant should produce to the licensing officer a cer- tificate from the overseer of the parish, that he was such resident occupier ; the latter provision was considered to be only directory, and a license obtained without the certificate, good. The omission, from the later passage, of the nullify- ing words which were appended to the former, were some 126 Ibid., cit. Bank of Commerce's m B'k of Commerce's App., App. , 73 Pa. St. 59; Dobinson v. supra. There was no provision in Hawks, 10 Sim. 407 ; 12 L. T. the association's charter requiring Rep. 238 : 39 Engl. Ch. Rep. 400 ; transfer upon the books. A German Union B. & S. Ass'n v. fortiori, this rule would hold. Sendmayer, 50 Pa. St. 67 ; Field, where there was such a require- Coin., £ 132, note 3. ment. 40 626 IMI'KKATIVK — DIRECTORY. [§ 439 indication of a difference of intention; besides, though it was reasonable that a license to a person not properly quali- !ieil should be void, it would hardly be reasonable that it should be void, if the holder was duly qualified, merely because tin; licensing officer had not been satisfied of the qualification by the particular means provided by the Act; which might have been wrongfully withheld by the over- seer (a). The Public Health Act of 1848, in empowering the Local Board of Health to enter into all contracts necessary for carrying the Act into execution, contains two provisions which may be taken as illustrating the distinction under con- sideration. It enacts that contracts exceeding ten pounds in value shall be sealed with the seal of the board ; that they shall contain certain particulars; and that " every contract so entered into shall be binding; provided always . that before contracting for the execution of any works, the board shall obtain from the surveyor a written estimate of the probable expense of executing it and keeping it in repair." The first of these requisites was decided to be imperative, and a contract unsealed was consequently held inoperative against the board and the rates. The power to contract so as to bind the rates could not have been exercised if it had not been given by the Act ; and, being entirely the creature of the statute, it could not be exercised in any other manner than that prescribed by the statute (h). But the provision which -required an estimate was held to be merely a direction or instruction for the guidance of the board, and not a condition precedent, the performance of which was essential to the validity of the contract () 11 & 12 Vict. c. 6:5, s. 85, B. D. 579, 51 L. J. 292 ; R. v. repealed and re enacted in sub- Norwich, 3d W. R. 752, Q. B. stance hy 38 & 39 Vict. c. 55, ss. May, 1882. Comp. Cole v. Green, 17:;, 174; Frond v. Dennet, 4C. 6 M. & Gr. 682. B. X. S. 576; 27 L.J. 314 ; Hun (c) Nowell v. Mayor, etc., of v. Wimbledon Loc. lid., 4 C. P. Worcester, 9 Ex. 467, 23 I;. J. D. 49, 48 L. .1. 207; Ashbury v. 139; Bonar v. Mitchell, 5 Ex. Richie, L. R. 7 II. L. 653 ; Eaton 415. §§ 440, 441] impossibilities. 627 it was said, the same facility for ascertaining whether the board had consulted their surveyor. The non-observance of the latter provision would, however, probably impose on the board the penalty of having no remedy against their ■constituents for re-imbursement (a). § 440. Remedy for Omission of Directory Duty. — It is no impediment to the construction [of a provision as being directory], that there is no remedy for non-compliance with the direction. The Act of 2 Hen. 5, which requires justices to hold their sessions in the first week after Michaelmas, Epiphany, Easter, and the translation of St. Thomas the Martyr, has always been held to be merely directory (b). So, the 6 Rich. 2, c. 5, which requires the justices to hold their sessions in the principal towns of their county, was held to be directory, not coercive (c). And yet it would be difficult to say that there would be any remedy against justices, for appointing their sessions on other days or places than those prescribed by the Statute (d). [Nor con- versely, does the fact that a provision is regarded as direc- tory only exonerate the person charged with its observance and guilty of its disregard from punishment, 129 or from liability to a party injured by his short-coming. 129 ] § 441. Impossibilities in the Nature of Things. — Enactments which impose duties on conditions are, when these are not conditions precedent to the exercise of a jurisdiction, sub- ject to the maxim that lex non cogit and impossibilia aut inutilia. They are understood as dispensing with the performance of what is prescribed, when performance is impossible (e) ; for the law, in its most positive and (a) Per Parke, B., Id. See East (e) As to performance, where Anglian R. Co. v. E. C. R. Co.. 11 the duty has not been imposed by C. 13. 775, 21 L. J. 23 ; McGregor superior authority, but has been v. Deal, etc., R. Co., 18 Q. B. 618, voluntarily assumed, see Paradine 22 L. J. 69 ; Royal British Bank v. Jane, 27, Alcyn, and the cases v. Turquand, 5 E. & B. 248 ; cited in Hall v. Wright, E. B. & Nugent v. Smith, 1 C. P. D. 423. E. 746. See, also, Taylor v. Cald- (b) 2 -Hale, II C. 50. well, 3 B. & S. 826 ; Boast v. Firth, (c) 2 Hale, F. C. 39. L. R. 4 C. P. 1 ; Appleby v. Myers, (d) Per Parke, B., in Gwynne v. L. R. 1 C. P. 615, 2 C. P. 651 ; Burnell, 2 Bing. N. C. 39. Clifford v. Watts, L. R. 5 C. P '-"• See, ante. § 436. 577 ; Howell v. Coupland, L. R. 9 189 Brown v. Lester, 21 Miss. Q. B. 462 ; and Nichols v. Mars- 392. land, 2 Ex. D. 4. 028 IMPOSSIBILITIES. [§ 4 ' I peremptory injunctions, is understood to disclaim, as it docs in its general aphorisms, all intention of compelling impos- sibilities, and this general exception is a general rule of stat- utory construction. 130 Thus, where an Act provide'! that an appellant should send notice to the respondent of his having entered into a recognizance, in default of which the appeal should not he allowed, it was held that the death of the respondent before service was not fatal to the appeal, but dispensed with the service («). In the same way, the pro- vision of the i'H & 21 Vict. c. 43, which similarly makes the transmission of a case stated by justices to the superior courts, by the appellant, within three days from receiving it, a condition precedent to the hearing of the appeal (b), was held dispensed with, when the Court was closed during the three days ; since compliance was impossible (c). [And so, of course, an act requiring, undef penalties, the measure- 1:10 Boody v. Watson, (N. II.) 4 New Engl. Rep. 553, 569, cit. The Generous, 2 Dods 322, 323 ; Hall \. Sullivan R. K., 21 Mon. Law Rep. o. S. 138, 147. Sec. also, Bish., Wi. L., ? 41. On the princi- ple lex non cogit ad vana sen inutilia, it was held, in Huntington v. Nicoll,3Johns. (N. Y.)566, o98, that an order that had long since expired need not be reversed though erroneous. And invoking the principles that lex non intendit aliquid inipossibile — nil tacit frustra — nil Juliet frustra, and th.d ii is the duty ot the court to con- strue a statute, it possible, ut res raasris valeat quam pereal (cit. Huber v. Reily, 53 Pa. St. 112, 115, 117 ; and see ante, §§ 20."). 178-181), the Supreme Court of Pennsylvania, in the Election Cases, 65 Pa. St. 20, 30-31, a stat- utory provision requiring the com- plaint in a contested election case to in verified by affidavit that the " facts set forth in such complaint arc true," was satisfied by an ailidavit by complainants thai they were true' " to the best of their knowledge and belief." And in Moffatl v. Montgomery, 68 Mo. 162, it was held, that, where the objection, in an election contest, was not to the voters, bill to the action of the election officers in counting blanks as votes, the re- quirement of the statute that the notice of contest shall state the names of the voters objected to, was inapplicable. See. also. State v. riper, 17 Neb. (514, as to effect of statute limiting time for holding an election to a less number of days than required for registration of voters, so that no registration. was had. (a) R. v. Leicestershire, 15 Q. B. 88. See. also. Brumfitt v. Roberts, L. R. .-> ('. P. 224. [Compare, however, Chirk v. Snyder, 40 Hun (N. Y.) 3:30, post. §443, and R. v. Pickford, ante. S L0. (b) Morgan v. Edwards, 5 II. & N. 415,29 L. .1. M. C. 108; Wood- house v. Woods, Id. 149 ; Stone v. Dean, E. B. & E. 504 ; 27 L. J. Q. B. 31it ; Norris \. Carrington, ]G C. B- X. S. 10 ; Exp. Harrison, 2 DeG. & .1. 22!) : Exp. Hull Bank, 27 L. J. Bank. 10 S. ('. (c) Mayer v. Harding, L. R, 2 Q. B. 410: see R. v. Allen. 4 B. & S3. 915, 33 L. J. M. C 98. [Where, through the destruction of the pallets belonging to a case, by the burning of the court house, it became impossible to present a transcript as required for review in the Supreme Court, the case was remanded lor a new trial : Miller v. Shotwell, 38 La. An. 103.] § 442] impossibilities. 629 ment of wood offered for sale to be made by sworn survey- ors of the town when such have been appointed, leaves the parties free to ascertain the quantity by any measurer appointed for that purpose by themselves, where no legal surveyors of wood have been appointed. 131 ] § 442. Impossibilities Arising from Acts of Parties. — III such •cases, the provision or condition is dispensed with, when compliance is impossible in the nature of things. It would seem to be sometimes equally so, where compliance was, though not impossible in this sense, yet impracticable, without any default on the part of the person on whom the ■duty was thrown. An Act, for instance, which made actual payment of the rent, as well as the renting of a tene- ment, essential to the acquisition of a settlement, would probably be complied with, if the rent was tendered, though it was not accepted (a). If the respondent in an appeal kept out of the way to avoid service of the notice of appeal, or at all events could not be found after due dili- gence in searching for him, the service required by the statute would probably be dispensed with (b). [So, under an act requiring a citation of appeal be served upon the opposite party personally, if resident in the state, a service upon counsel was held sufficient where the appellee caused herself to be sequestered and could not be found ; 13S and so was, under a statute, a notice of appeal filed in the clerks office where the appellee had failed to designate a person to receive notices in the case. 133 ] So, if the appellant was entitled to appeal, subject to the condition of giving security for costs within a certain time, he would be held to have complied with the condition, if he offered and was read}' to 131 Coombs v. Emery, 14 Me. 69 Iowa 458 ; Tuttle v. Griffin, 64 404. And see Abbott v. Goodwin, Id. 455. 87 Id. 203. The provision of a (a) Per Bayley, J., in R. v. statute requiring ninety days' notice Amptliill, 2 B. & C. 847. of expiration of time for redemp- (b) Per cur. in Morgan v. tion before issuing a deed for land Edwards, and per Cronipton, J., sold for taxes, to the person in and Hill, J., in Woodliouse v. whose name the land was taxed Woods, ubi sup. See, also, Syred and to the person in possession, v. Carruthers, E. B. & E. 469. was held dispensed with where the 13 '- Marshall v. Watrigant, 13 La. owner was unknown and no one An. 619. in possession: Burdiek v. Council, 133 Brantley v. Jordan, 90 N. C. 25. 630 IMPOSSIBILITIES. [§ 443 complete the security within the limited time, though it was, owing to the act of the court, [or of the clerk there- of, 134 ] or of the respondent, not completed till long after (a). § 443. Impossibilities upon which Jurisdiction is Conditioned. — Where, however, the act or thing required by the statute is a condition precedent to the jurisdiction of the tribunal, compliance cannot he dispensed with ; and if it. be impossible, the jurisdicj ion fails. It would not be competent to a Court to dispense with what the Legislature had made the indispens- able foundation of its jurisdiction. Thus, the Act which enacts that justices, at the hearing of a bastardy summons, "shall hear the evidence " of the mother, and such other evidence as she may adduce; and which authorizes them to make an affiliation order "if the mother's evidence be corroborated in some material particular by other testimony," makes the evidence of the mother so essential to the juris- diction, that no order could be made without it, although the woman died before the hearing (b). So, under the County Courts Act, 1875, which empowers a party to move the appellate Court or a judge at chambers for a new trial " within eight days after the decision," the time could not be extended by either Court or judge (e). Under the 13th section of the Admiralty Act of 1801, which gives the Court of Admiralty the same powers, when a vessel or its proceeds are under arrest, as the Court of Chancery has under the Merchant Shipping Act of 1S54, over suits for limiting the liability of ship-owners, no jurisdiction could be exercised by the former Court, when the ship was lost. The jurisdiction of the Court depended on the ship, or the proceeds of its sale, being under arrest; and the ship-owner could not give it juris- diction by paying into Court a sum equivalent to its value or proceeds (d). [In general, wherever the Legislature, declares that an act shall not be performed except on a con- 's 4 See Lewis v. TTennon, 13 La. (c) 38 & 39 Viet. c. 50 ; Brown An. 259 ; Barton v. Kavanausjh, 12 v. Shaw, 1 Ex. D. 425 ; Tennaut Id. 332. v. Rawlings, 4 C. P. U. 133. (n) Watertnn v. Baker, L. R. 3 [S. P., Seymour v. Judd, 2 N. Y. Q. B. 173 ; and see K. v. Aston, 1 464.] L. M. & P. 491. (,/) James v. S. W. R. Co., L. (b) R. v. Armvtage, L. R. 7 Q. R. 7 Ex. 287. See, also, R. v. B. 7?::. Belton, 11 Q. B. 379. £ 443] IMPOSSIBILITIES. 631 ditioD precedent, and it is impossible to perforin the condition the latter does not fall, but the prohibition is absolute. 13 * And so, where a right or jurisdiction is given based upon certain conditions, if they are or become impossible of per- formance, the right or jurisdiction cannot be exercised. Thus, under an act giving a plaintiff in suits upon certain causes of action the right to demand judgment against the defendant after the lapse of a certain number of days, if he failed to file an affidavit of defence, the plaintiff being required, within two weeks after the return of the original process, and before the judgment day, to file a copy of his cause of action in the suit, — which requirement was regarded as a condition precedent to his right to ask for such judgment against defendant, and to the latter's duty to file an affi- davit 136 — it was held, that, where the plaintiff was, in fact, dead at the time of the impetration of the writ, and the latter was not amended until after the judgment day, no judgment could be taken for want of an affidavit of defence, there being no one who could perform, within the prescribed time, that which was imposed upon a plaintiff as a condition precedent to his right to take such judgment. 137 Upon this ground also, probably rests the decision, under a statute requiring notice of appeal to be served on the appellee, but designating no person upon whom such notice might be served after the appellee's death and before the appointment of an administrator, that service upon the widow, the justice from whose judgment the appeal was taken, the county clerk and the attorney who appeared before the justice, was not legal service, the administrator being clearly the only person upon whom such notice could be served, and the service of it being a condition precedent to the jurisdiction of the court. 138 It follows also, that, where a statute designed to attain a particular object, prescribes no method of procedure for the purpose, and there is no court whose forms of pro- 135 State v. Douglass, 5 Sneed (Pa.) 335. Comp. Smith v. (Tenn.) 608. Hiester, 11 W. N. C. (Pa.) 353. 126 Thomas v. Shoemaker, 6 138 Clark v. Snyder, 40 Hun (N. Watts & S. (Pa.) 179 ; Gottman v. Y.) 330, Hardin, J., dissenting, Shoemaker, 86 Pa. St. 31. because the time was too short to 137 Lynch v. Kerns, 10 Phila. raise an administrator. Comp., ante, § 141. 032 waiver. [§ 444 cedure can supply the deficiency, the statute must remain a nullity."' But a statute which prescribes the punishment of an offence by fine and imprisonment either in the peniten- tiary or the state prison, in the discretion of the court, is not void because, in many counties of the state there may be no penitentiaries. 140 ] § 444. Waiver of Statutory Provisions as to Rights of Con- tracts. — Another maxim which sanctions the non-observance of a statutory provision, is that, cuilibet licet renuntiare juri pro se introducto. Every one has a right to waive, and to agree to waive the advantage of a law or rule' made solely for the benefit and protection of the individual, in his private capacity (a), and which may be dispensed with without infringing on any public right or public policy."" Thus a person may agree to waive the benefit of the Statute of Limitations (b). The trustees of a turnpike road may, in demising the tolls, waive the provision of the Act which requires that the demise shall be signed by the sureties of the lessee (c). A passenger may waive the benefit of an enactment which entitles him to carry so many pounds of luggage with him; and he does so, it may be added, by taking a ticket with the express condition that he shall carry no luggage (d). The only person intended to be benefited by such an enactment is, obviously, the passenger himself ; and no consideration of public policy is involved in it (e). i39 Hushes' Case, 1 Bland (Md.) ,41 The Cal. Civ. Code, 8513, 46 8268, Ga. Code, 1882, 10, La. Rev. 140 People v. Borges, 6 Abb. Pr. Civ. Code, 11, and Dak. Civ. Code, (N Y.) 132; though in such 2066, declare that laws made for counties, it was added, the statute the preservation of public order or mi-iii possibly be inoperative, the good morals cannot be abrogated prisoner being entitled to the benefit by agreement ; but a person may of all the various grades of punish- waive; or renounce what the law meiit tlieaei mentions,— a consider- has established in his favor, when ation which would probably induce he does not thereby injure others the court, at all events, to suspend or affeel the public interest : from iud"i)tent or greatly to reduce the Stimson, Amer. Stat. L. term of imprisonment : Ibid. (b) E. I. Co. v. Paul 7 Moo. P. (a) McAlister v. Rochester (Bp.). C. 86; Lade v. Inll, 6 Jur. 2,2, 5 C P D. r.H. 49 L. -1 114. per Knight Bruce, V. C. rGreal Easl Ry Co. \ G-oldsmid, (c) Markham v. Stanford, 14 C. L. R. 9 App. Cas. 927; Scnuyl- B. N. S. 376. km etc. Co v. Decker, 2 Watts (d) Rumsey v. V E. R. Co., 14 (Pa) 343 345; Tombsv. R. R. Co., C. B. N. S. till ; 32 I- J. 211. is Barb. (N. Y.) 583.] (< I Id. per Willes, J. § 444] waiver. 033 A company authorized by statute to levy tolls within a specified maximum is not bound to exact uniform tolls from all persons alike ; but is entitled, in the absence of an express provision requiring equality, to remit any part of the tolls to particular persons, at its discretion (a). [An adjacent land-owner may waive his rights under an act requiring railroad companies to fence.' 4 ' 2 A company in- vested with the privilege of appropriating lands may waive the right given by its charter to apply to the court for writs of inquiry ad quod damnum, designed for the bene- fit of the company, as a measure of precaution to ascertain in advance the damages to be incurred in the adverse taking. 143 The legal owner of real estate, out of possession at the time when the equitable owner in possession caused a building to be erected thereon without the former's con- sent, may waive the benefit of an act providing that mechanics' liens shall not extend to anv other or greater estate in the land than that of the person or persons in possession at the date of the commencement of the building and directing the performance of the work, etc., and that no greater estate than this shall be sold by virtue of any execution authorized by the act. 144 A party may waive the right declared by statute of assignees of life, fire, etc., insurance policies to sue in their own names ; and hence such an act has no application where the policy expressly provides that it shall not be assigned or transferred without the consent of the insurance company, and such assent has not been given. 145 A married woman may, by a written agreement, made between her and her husband, to separate, each for a valuable consideration, relinquishing whatever (a) Hungerford Market Co. v. stand unchallenged and a sheriff's City Steam Boat Co., 3 E. & E. sale of his interest in the land to 365, 30 L. J. 25. be made under an execution on the 142 Tombs v. R. R. Co., 18 Barb, judgment, will be presumed to (N. Y.) 583. have waived the provision of such 143 Schuylkill, etc., Co. v. Decker, an act, and will not be allowed, in 2 Watts (Pa.) 343. an action of ejectment, to set up 144 Weaver v. Lutz, 102 Pa. St. the invalidity of the judgment as 593: and one, who, without objec- against a bona fide purchaser at tion, permits a judgment to be the sheriff's sale, who relied upon improperly obtained against him the verity of the record : Ibid. on a sci. fa. upon such a mechanic's 145 Nat. Mut. Aid Soc'y v. claim, permits the judgment to Lupoid, 101 Pa. St. 111. 634 waivek. [§ 445 marital rights either might have in the estate of the other, followed by actual separation, waive her statutory right to rhe K.'I(M) exemption out of his estate upon his decease. 146 A party may waive the benefit of exemption laws, 147 or that of a provision, in an act giving a mortgagee a rem- edy bj' scire facias upon the mortgage, which postpones his right to issue the writ until after the expiration of twelve months next ensuing the last day whereon the mortgage- money ought to have been paid, or other condition per- formed. 148 Indeed, even where a contract is prohibited by statute, the principle that courts will not enforce contracts made in the face of such prohibition or permit the recovery of money paid in pursuance of them, is inapplicable where the prohibition was intended for the mere protection of one- of the parties against a supposed undue advantage possessed by the other. 149 ] § 445. Waiver, etc., as to Procedure and Practice in Courts. — The regulations concerning the procedure and practice of Civil Courts may in the same way, when not going to the jurisdiction, 150 be waived by those for whose protection they were intended. Thus, the provisions of the Act of 4 Anne,, c. 10, which required that a plea in abatement should be verified by affidavit, might be waived by the plaintiff (a). [The statutory limitation as to the time within which a defendant is allowed to file his affidavit of defence, and at 146 Speidel's App., 107 Pa. St. when they mean no more than 18. that some party has a right to 147 McKinney v. Reader, 6 Watts avoid them . . . 'Legislators some- (Pa.) 34 ; Case v. Dunmore, 23 times use language with equal Pa. St. 94. But see Firmstone v. want of exact accuracy; and when Mack, 41) Id. 387, post, § 447. they say that some act or contract 148 Hilling v. Drexell, 7 Watts shall not be of any force or effect, (Pa.) 126. mean perhaps no more than this, 149 Scotten v. State, 54 Ind. 52. that at the option of those for See, also, Deming v. Stale, 23 Id. whose benefit the provision was 410. See, also, Dupre v. McCright, made, it shall be voidable and !t La. An. 146. A provision that have no force or effect as against may be waived by the party for their interests," — cit. : Green v. whose protection it is intended, can- Kemp, 13 Mass. 515; Terrill v. not he invoked by anyone else to Auchaner, 14 Ohio St. 80 ; State v. invalidate the contract : Bennet v. Richmond, 26 N. II. 232. Mattingly, 110 Ind. 197; Beecher no See Weidenhamer v. Bertie, v. Rolling Mill Co., 45 Mich. 103, 103 Pa. St. 448. where it is said: "Courts often (■/) Graham v. Ingleby, 1 Ex. speak of acts and contracts as void 651. § 445] waiver. 635 the expiration of which, in default of such affidavit, the plaintiff is entitled to judgment, may be waived by the plaint- iff ; so that, if he does not ask for judgment until some time after the expiration of that period, an affidavit filed since the same, if before, actual motion for judgment, is in time. 151 And a plaintiff may waive his right to question the sufficiency of an affidavit of defence filed, by obtaining a rule upon the defendant to plead and taking other steps in the cause ; ,M or he may waive altogether his right of requiring the defendant to file an affidavit of defence, or of asking for judgment for want of it, by taking out a rule to arbitrate. 163 Similarly the party interested may waive the legal formalities in the execution of a writ for the sale of real estate, 164 as well as the provisions of a statute requiring the sale of land upon execution to be made in separate lots or parcels, instead of as a whole. 166 ] Under the 13 & 14 Vict. c. 61, s. 14, which gave an appeal from a County Court, provided the appellant, within ten days, gave notice of appeal and security for costs ; and after directing that the appeal should be in the form of a case, enacted that no judgment of a County Court Judge should be removed into any other court, except in the manner and under the provisions above mentioned ; it was held that the want of due notice and security might be waived. The provision was intended for the benefit of the respondent, and was not a matter of public concern (a). [So, a defect in a recognizance for an appeal from an award of arbitrators may be waived. 166 ] So, a defendant, even in a criminal case 151 Slocum v. Slocum, 8 Watts ni Cunningham v. Cassidy, 17 (Pa.) 307 ; Gillespie v. Smith, 13 N. Y. 276. See ante, § 314. Pa. St. 65 ; just as, under an act (a) Park (late Iron Co. v. allowing ten days for the filing of Coates, L. R. 5 C. P. 634. See. an answer, it was held that the also, R. v. Long, 1 Q. B. 740 ; latter might be filed at any time Tyerman v. Smith, 2 E. & B. 7^9, thereafter, until some action of 25 L. J. 259 ; Freeman v. Read. 4 the court or of the adverse party B. & S. 174; Palmer v. Metrop. concluded the right : Lewis v. R. Co., 31 L. J. Q. B. 259 ; Re Labauve, 13 La. An. 382. Regent U. S. Stores, L. R. 8 Ch. 162 O'Neal v. Rupp, 22 Pa. St. 75. [S. P.. as to notice. Goss v. 395. See, also, Morrison v. Under- Davis, 21 Ala. 479 ; Hill v. Bow- wood, 5 Cush. (Mass.) 52 : Sey- den, 3 La. An. 258. But see raour v. Judd, 2 N. Y. 464. contra. Re Gold Str., 2 Dak. 39.] 153 Lusk v. Garrett, 6 Watts & 156 Walter v. Bechtol, 5 Rawle S. (Pa.) 89. (Pa.) 228 ; Clarke v. McAnulty, a 164 St. Bartholomew's Church v. Serg. & R. (Pa.) 364 ; Weidncr v. Wood, 80 Pa. St. 219. Matthews, 11 Pa. St. 336. •630 waiver. § 446 before a justice of the peace, may waive an\ irregularity in the summons, or dispense with the summons alto- gether; and he does so, not, indeed, by appearing merely i, but by appearing and entering on the case on its merits; for he would not he allowed to take his chance of prevailing <>n the merits, and at the same time to reserve his objections to a preliminary irregularity (//). So, where a statute requires justices to make known to a party his right to appeal, and the steps necessary to carry out this right, such as giving notice of appeal and entering into recogni- zances ; the party may waive this provision, and does so by declaring that he does not intend to appeal ( apply to si reel crossings in a city) would not be waived by the matter of opening streets and the failure of a city to exercise the power of regulating the running of trains over its streets, it conferred upon it by the Legis- lature : Centr. R. 11. Co. v. Rus- sell. 75 Ga. 810. 1 - Burlier v. Com'th, 103 Pa. St. 52S, 533. (5) Lawrence v. Wilcock. 11 'A. & E. 941 ; Lismore v. Beadle, 1 Dowl. N. S. 5GG ; Exp. Robertson, 20 Eq. 7;!:] ; Jackson v. Beaumont, 11 Ex. 303, 24 L. J. 301. [But where a court, e. g., in Pennsyl- vania, the court of Quarter Ses- sions, has general jurisdiction over awarding damages, although in a particular proceeding that juris- diction is vested in another court, yet a city having invoked the general jurisdiction of the Q. S. for those purposes, will not, after the proceedings have taken their course, without objection and been perfected, he allowed to raise the question of jurisdiction, in order to avoid the payment of the damages assessed for the laud taken : /.'< Spring Sir., 112 Pa. St. 258. | '•'•" See Cooley, C. L., 193. 506. G3S E8T0PPJEL. [§ 448 It was held that the provision of the 20 & 21 Vict. c. 43, which requires the appellant from a decision of justices to transmit the case in three days to the court of appeal, could not he waived by the respondent, on the ground either that it went to the jurisdiction, or that it related to a criminal case, or that the justices had an interest in the observance of the rule (a). [Where an act extending the jurisdiction of justices of the peace to attachment executions, provided that "the wages of any laborer, or the salary of any person in public or private employment, shall not be liable to attachment in the hands of the employer," it was held that the defect was one of jurisdiction and could not be waived." ] § 448. Estoppel from Claiming Benefit of Statute. — It may be added here, that a person is sometimes estopped by his own conduct, from availing himself of legislative provisions intended for his benefit. For instance, a prisoner for debt, representing a person to be an attorney, to attest a warrant of attorney, who did not belong to that profession, could not afterwards be allowed to impeach the warrant on the ground of inadequate attestation (b) ; and the grantee of an annuity, on whom the duty is cast of enrolling the deed of grant, would be estopped from taking any advantage from his neglect to enroll it (c). [So, although a borrower cannot, by a contemporaneous prospective agreement waive the pro- visions of the usury laws, 101 yet the right to set up the defence of usury may be lost by him who would be entitled to set it up ; as, where his agent represented to the lender buying a note and mortfja^e that the same was an honest debt and would be paid; 102 or where the borrower, being the mortgagor, (a) Morcran v. Edwards, 5 H. & 387. See ante. § 444. N. 415 ; Peacock v. R,, 4 C. B. N. (5) Joyce v. Booth, 1 B. & P. 97; S 364, 27 L. J. 2'39. Com]). Cox v. Cannon, 4 Bing. N. C. Peters v. Sheehan, 16 M. & W. 453. 213 ; Great M. R. Co. v., Ivett, 2 (c) Molton v. Camroux, 4 Ex. 17; (). B. 1). 284 ; li. v. Hughes, 4 Q. Turner v. Browne, 3 C. B. 157. B. I). 615. See the remarks in 101 Bosler v. Klieein, 72 Pa. St. Park Gate Iron Co. v. Coates, L. 54; Mabee v. Crozier, 22 Hun R 5 C. P. 634, dubit. Keating, J. ; (N. Y.) 264. Bennett v. Atkins, 4 C. P. D. 80. fe Sage v. McLaughlin, 34 Wis. 1 ' Firmstone v. Mack, 4'J Pa. St. 550. § 448] ESTOPPEL. 639 allows the property to be sold under a foreclosure, without attempting to avoid the mortgage. 183 In such cases, the borrower would be estopped from asserting his rights under the usury laws, and affecting innocent purchasers with the consequences thereof. 164 ] 163 Elliott v. Wood, 53 Barb. 1M See, also, Weaver v. Lutz, 103 (N. Y.) 285. Pa. St. 593, ante, § 444. 640 ILLEGAL CONTRACTS. [§ 449 CHAPTER XVI. Effect of Statute upon Contracts made in Contraven- tion- thereof. Public and Private Implied Remedies. ; 1 19. Distinction between Void and Illegal Contracts. ^ 450. Contracts Prohibited under Penalty. § 451. Contracts Founded on Illegal Consideration. § 452. Contracts Connected with, Promoting, Involving or Growing out of Illegal Acts. ' | 454. Sales for Illegal Purposes. ;• 455. Forms, etc., of Contracts Prescribed by Statute. ; 456. Effect on Contracts of Absence of Statutory Personal Qualifica- tions. § 457. "When Contract contrary to Statute Upheld. Revenue Laws. § 458. Statute Operating on Particular Party or Declaring Particular Result. g 459. Statute made for Protection of One Party. Remoteness. i 4G0. Partial Illegality of Contract. | 461. Effect of Statute Rendering Performance of Contract Illegal. § 463. Statute Implies Means, of Enforcement. § 4G4. Implied Remedies Where an Act Prohibits or Commands Some- thing 1'ublic. § 465. Statute Creating Obligation and giving Remedy in Same Section. § 466. Statute Creating Obligation to Pay Money. | 467. Statute Creating Public Duty and giving Remedy, in Different Sections. § 468. Same Rule as to Private Duties. | 469. Where Third Parties Interested in Duties or Prohibitions. § 470. Non-performance of New Duty. etc. Penalty Recoverable by Aggrieved Party. 3 471. Right of Action Limited to those Directly within Gist of Enact- ment. ; [72. Former Latitude in this Respect. Later Rule. § 473. Special Injury by Preach of Public Duty Necessary for Action. Remoteness. § 474. Statutes Foreign to Individual Interests give no Private Action. § 449. Distinction between Void and Illegal Contracts. — A con- tract is not illegal merely because it is void or not enforce- able. An Act. for instance, which limits the contracting power § 449] ILLEGAL CONTRACTS. 641 of a company to certain contracts only, does not thereby render illegal, though it leaves void, all contracts which do not fall intra vires (a). An Act which provided that a professional man should not recover on a contract, unless he- was duly qualified, would make the contract of an unquali- fied person similarly void, but not illegal (£). But when a- statute prohibits an act, any contract made respecting it is illegal as well as void (c). What has been done in con- travention of an Act of Parliament, it has been said, cannot be made the subject of an action (d). Thus, as the Metro- politan Building Act prohibits the use of combustible materials for building walls in the metropolis, the builder of any such walls could not maintain an action for the price of erecting them ( Birkctt v. Chatterton, 13 R I Slight, 2 L. M. & P. 662. 299. (c) Bartlett v. Vinor, Carth. 252 ; 2 Glidden v. Strupler, 52 Pa St Redpath v. Allen, L. R. 4 P. C. 400, 406. 511. 3 Nix v. Bell, 66 Ga. 664. (d) Per Lord Ellenborough, in 4 Reed v. Crocker, 12 La. An Langton v. Hughes, 1 M. & S. 436. The La. Rev. Civ. Code! 59 ^. 1875, 12, declares that whatever is 41 642 ILLEGAL CONTKA [£ 450 act, imposed a penalty on any of enumerated series of gain ing operations, and declared every contract, note, bill, etc., given or entered into for security or satisfaction of a debt arising from such operations "utterly void and of none •ll'ivi." it was held that a note given for a gaming consid- eration was void even in the hands of an innocent holder for value.'] § 450. Contracts Prohibited Under Penalty. — When a penalty is imposed for doing or omitting an act, the act or omission is thereby prohibited and made unlawful ;" for. a statute would not inflict a penalty on what was lawful (a). Conse- quently, when the thing in respect of which the penalty is imposed is a contract, it is illegal and void. In the case above cited,' the Act had declared that it should not be law- ful to take the apprentice, and imposed a penalty for doing so (b), and in another, where service under an indenture of apprenticeship as a sweep was similarly treated, the statute had not only declared the apprenticeship " void," but imposed a penalty on the master (c). [So, where a statute, besides declaring the transfer of a government contract void, punishes the same with annulment of the contract, no action can be maintained upon sucli transfer. 8 ] The joint Stock Companies Act, 7 A: 8 Vict. c. 110, s. 21, in enacting that every promoter of a company concerned in making contracts on its behalf before its provisional registration, should be subject to a penalty of 25Z., impliedly rendered every such contract illegal and therefore void (//). [The National done in contravention of a prohibi- v. Bliss, 7 hid. 77; also cases tory law is void, although the infra. nullity be nol formally declared: (a) Per Lord Holt in Bartlett v. Stimson, Amer. Stat. L. p. 1413, Vinor.ubi sup.; per Lord Hatherley ; 1(115. in Re Cork, etc., R. Co., L. R. 4 ■ Harper v. Young, 112 Pa. St. Ch. 748. !".); Unger v. Boas, 13 Id. "ion. 'II. v. Gravesend, 3 B. & Ad. But it said, Ibid., at p. 603, that 240, ante. § 449. uhe indorsee of sucb a note may (b) 10 Ceo. 2, c. 31 ; R. v. sue the indorser on his indorse- Gravesend, ubi sup. ment, (c) 28 Geo. 3, c. 48 R. v. Hips- " See, among other cases, dark well, 8 1!. & C. 466. v. In-. Co., 1 Story, 109; Halletl 8 Turnbull v. Parnsworth, 1 v. Novion, 14 Johns. (N. Y.)273; Wash. 411. Bacon v. Lee, 1 Iowa, l:>;>; Mitchell (rf) Bull v. Chapman, 8 Ex. 444 ; v. Smith. 1 Binn. (Pa.) 110 ; Lewis and sec Abbot v. Rogers, 16 C. 1>. Welch, It N. II. 294 ; Skelton 277. § 450] ILLEGAL CONTRACTS. 'i'A'A Currency Act of 3 June, 1864, which permits national banks to " purchase, hold and convey" real estate in certain pre- scribed cases, among which it enumerates "such as shall be mortgaged to it in good faith by way of security for debts previously contracted," having provided that " such asso- ciation shall not purchase or hold real estate in any other case," etc., punishes a violation of any provisions of the act by inflicting personal liability upon the' directors, and, sub modo, forfeiture of the corporate franchise. It was held that a mortgage taken by a national bank to secure future discounts was absolutely void, and that the assignee for the benefit of creditors of the mortgagor might resist its enforce- ment upon that ground. 9 So, a contract between a citizen of the United States and an alien, whereby the former undertook to purchase vessels and cargoes in his own name, for the latter, to equip, register and navigate them in the name of the former, for the use of the latter, and in like manner to import the return cargo, in fraud of the registry and revenue acts of the United States, 10 which prohibited such transactions under penalty of forfeiture of the vessel, with her tackle, apparel and furniture, was held to afford no basis for an action in American courts. 11 ] The highway Act, 5 & 6 Wm. 4, c. 50, s. 46, in imposing a penalty of ten pounds on a road surveyor who had any share in a contract for sup- plying work or materials, or horse labor, for any of his highways, without the written license of two justices, was equally fatal to his recovering any payment for such supplies or services (a). [So, where an act punishes " any officer of any county, . . city, or town, . . who shall contract directly or indirectly, or become in any way interested in any contract, for the purchase of any draft or order on the treasury," an agreement between a sheriff, at the time ex officio collector of his county, and another, whereby each was to furnish equal amounts of money to be invested in county scrip, the profits to be divided, was held illegal and 9 Fowler v. Scully, 72 Pa. St. » Maybin v. Coulon, 4 DalL 456. (Pa.) 298 ; 4 Yeates, 24. 10 See Act 31 Dec. 1792, 2 U. S. (a) Barton v. Pigott, L. R. 10 Q. Laws 131. B. 86. G44 [LLEGAL CONTKACTS. [§ 45J void. 18 So, under the Pennsylvania statute of 11 April, 1795, ;i contract for the purchase and sale of lands under the ( onnecticut title, and a bond given for the purchase-money thereof, were held illegal and void, although the statute- merely inflicted a penalty on the offender against its prohibition. 13 ] The; 50th section of the Merchant Shipping Act of 1854, which enacts that the certificate of a ship's registry shall be used only for the navigation of the ship, and imposes a penalty on any person in possession of it, who refuses to give it up to the person entitled to its custody for the purposes of navigation, impliedly prohibits its use for any other purpose ; rendering a pledge of it illegal and void, and giving no right to detain it even against the pledgor, if the right of possession and property is vested in him (a). ij 451, Contracts Founded on Illegal Consideration. — [It ha& been so often decided as to have become a sort of legal maxim, that, where any matter or thing is made illegal by statute, whether by express prohibition or by being made subject to a penalty, a contract founded directly upon such matter or thing as its supporting consideration, is itself ren- dered illegal and void,' 4 as, where the consideration was brandy manufactured and sold in violation of the revenue laws,' 5 or smuggled goods ; 10 or work done with a threshing machine, the truckles and rod-boxes of which, at the time of the work, were not covered or inclosed as required by a statute which made the omission of these precautions for the safety of persons running such machines punishable as a misdemeanor. 17 ] 15 Read v. Smith, 00 Tex. 379. 87 ; Bayley v. Tuber, 5 Mass. 286 ; 1;S Mitchell v. Smith, 4 Dall. Wheeler v. Russell, 17 Id. 258; (Pa.) 26!). Farrar v. Barton, 5 Id. 395 ; Stan- di) Wiley v. Crawford, 1 E. B. ley v. Nelson, 28 Ala. 514; Milton iV I-:. 253, : .".l 1, J. 244, 30 Id. 319. v. Haden, 32 Id. 30; Biddis v. 14 See 1 Pars., Contr., pp. *456- James, 6 Binn. (Pa.) 321 ; Seiden- 459. binder v. Charles. 4 Serg. & R. 16 Creekmore v. Chitwood, 7 (Pa.) 151 ; Ellsworth v. .Mitchell, Bush (Kv.) 317. 31 Me. 217 ; Elkins v. Parkhurst, 10 Condon v. Walker, 1 Yeates 17 Vt. 105; Spalding v. Preston, (Pa.)483. 21 I.I. 9; Roby v. West, 4 N. H. 17 Ingersoll v. Randall, 14 Minn. 285; Carlton v. Whitcher, 5 Id. 400. See, also, the following cases : l'JO ; Bracket v. Hoyt, 29 Id. 264 ; Bell v. Quin. 2 Saudi'. (N. Y.) 146; Coburn v. Odell, 30 Id. 540 ; Solo- Nourse v. Pope, 13 Allen (.Mass.) mon v. Dreschler, 4 Minn. 278- I 4.52] ILLEGAL CONTRACTS. 645 § 452. Contracts Connected with, Promoting, Involving, or Growing out of Illegal Acts. — Further, any contract connected with or growing' out of an act which is illegal (not merely void), is also invalid. Thus, a contract to dance at a theatre not duly licensed could not be enforced by action (a). [A check given by defendant to a country agricultural society in payment of the entrance fee for his horse, to compete for premiums offered by the society in trials of speed, horse- racing being made penal by statute, cannot be made the basis of a recovery against him ; 18 nor can money loaned in "poker chips," and used at a prohibited game of chance, be recovered back. 19 ] It being unlawful for any election agent, except the expense agent, to make any payments on behalf of a candidate, even for current expenses, an agent who made any such payments could not, for this reason, recover the amount f.rom his principal (b). [So, contracts whose tendency is to promote, or the performance of which iuvolves, the doing of acts that are prohibited or made penal by statute, are illegal and void, though the statute be silent as to their effect. 20 Such is a contract to ship goods from one part of the United States to another in a foreign bottom. 21 And so, too, an agreement to give one the deputation of a public office, with the fees and costs there- of, he to pay thereout a specified sum, is illegal and void, together with the notes given to secure such payment, as against a statute forbidding the sale of public offices. 22 Where a statute makes it penal to "establish, institute, or put in operation, or to issue any bills or notes for the pur- pose of erecting, establishing or putting in operation any Hall v. Mullin, 5 Har. & J. (Md.) ,9 Williamson v. Baley, 78 Mo. 153; Downing v. Rinaer, 7 Mo. 636. 5S5 ; Madison Ins. Co. v. Forsyth, (b) 26 & 27 Vict. c. 29 ; Re 2 Ind. 483 ; Siter v. Sheets, 7 Id. Parker, 21 Ch. D. 408. 132; Hale v. Henderson, 4 20 Dillon v. Allen, 46 Iowa, 299. Humph. (Tenn.) 199 ; and cases 21 See Petrel Guano Co. v. infra. Jarnette, 25 Fed. Rep. 675 : and (a) Gallini v. Laborie. 5 T. R. the remission of the forfeiture by 242. See, also, De Begnis v. the United States cannot validate Armistead, 10 Bing. 110 ; Levy v. the contract as between the par- Yates, 8 A. & E. 129 ; Elliot v. ties : Ibid. See post, § 48S. Richardson, L. 11. 5 0. P. 749. 2i Grant v. McLester, 8 Ga. 553 ; 18 Comly v. Ilillegass, 94 Pa. St. and see O'Rear v. Kiger, 10 Leigh 132. (Va.) 622. 646 ILLEGAL CONTRACTS. [§ 453 banking institution, association, or concern," the initiatory steps for such purpose, all transactions by which the for- bidden currency is put in circulation, and all contracts in furtherance of such transactions are rendered illegal and void. 53 ] § 453. As the Pawnbrokers' Act, 39 & 40 Geo. 3, c. 99 y requires that for the better manifesting by whom the busi- ness of a pawnbroker is carried on, every person who carries it on shall cause his name to be painted over his shop; an agreement for a partnership in that business, which included a stipulation that the name of one of the partners should not be painted up, would be illegal and void (a). And so would be an agreement to let premises to a person, with the object of enabling him to sell spirituous liquors there with- out a license (b). Where an Act provided that before a ship sailed, the master should obtain the clearing officer's certificate that the whole cargo was below deck, and forbade him, under a penalty, either to sail without the certificate or to place any cargo on deck ; a voyage in contravention of these provisions would be illegal, and a policy of insurance on the cargo effected by its owner, who was privy to the transaction, void (c). The 25 & 26 Vict. c. 89, in enacting that no company of more than twenty persons should be formed for carrying on any business for gain, unless it were registered, rendered illegal and void all contracts for carry- ing on its business if the company was not registered (d). So where a statute, under penalty of fine for misdemeanor, prohibits persons from transacting business in the name of a partner not interested in the firm, and requires, that, where the addition " & Co." is used, it shall represent an actual partner, the effect, although unexpressed in the statute, is to 23 Davidson v. Lanier, 4 Wall. v. Hyde, 2 E. & E. 1, and 1 E. B. 447. & E. (i70 ; Wilson v. Rankin, 6 (a) Armstrong v. Lewis, 2 C. & B. & S. 208, 34 L. J. 62: Dudsreon M. 274 ; Warner v. Armstrong, 3 v. Pembroke, L. R. 9 Q. B. 581 ; M. & K. 45 : Gordon v. llovvden, Atkinson v. Baker, 11 East, 133. 12 CI- and F. 237 ; Eraser v. Hill. (d) Be Padstow Assur. Assoc., 1 Macq. 392. [Comp. § 457.] L. R. 20 Cb. D. 137 ; Jennings v. (6) Richie v. Smith, 6 C. B. 4G2. Hammond, 9 Q. B. D. 225. (c) See the two cases of Cunard §§ 454, 455] ILLEGAL CONTRACTS. 647 render the prohibited dealings illegal and executory contracts unenforceable by the person engaging therein.* 4 ] § 454. Sales for Illegal Purposes.— Where a statute prohibited brewers from using any ingredients but malt and hops in brewing beer, it was held that a druggist who sold drugs to a brewer with the knowledge that they were to be used in making beer, contrary to the Act, and under circumstances; which made him a participator in the illegal transaction, could not recover the price of the drugs (a). [So the vendor of land sold to the projector of a prohibited lottery or gift enterprise, to be used as prizes in the scheme, cannot recover the price stipulated therefor, or any unpaid balance due thereon. 35 ] But mere knowledge of the purposed illegality, without actual participation or privity in it, would not affect the contract. Thus, a sale of goods in a foreign country, with the knowledge that the purchaser intended to smuggle them into England, but without any participation in the transaction (//), [or a sale of liquors in a state where the sale was legal, with knowledge that the vendee intended to sell them in his state, where the sale was prohibited, 20 ] would not be invalid. § 455. Forms, etc., of Contracts Prescribed by Statute. — The question has frequently arisen, when an Act prescribes, regulations, forms, or other attendant circumstances, more or less immediately connected with contracts, either with or 84 Swords v. Owen, 43 How. L. J. 117 ; Beeston v. Beeston, 1 Pr. (N. Y.) 167 ; 34 N. Y. Supr. Ex. D. 13 ; Brooker v. Ward, 5 B. Ct. 277. And see Zimmerman v. & Ad. 1052. Erhard, 58 How. Pr. (N. Y.) 11 ; 8 26 Hooker v. De Palos, 28 Ohio- Daly, 311, that the addition " & St. 251. Co." may represent the wife. See, (b) Holman v. Johnson, Cowp. also, Noel v. Kinney (N. Y.), 8 341 ; comp. Waymell v. Read, 5 Centr. Pep. 58. T. R. 599 ; Lightfoot v. Tennant, (a) See Holman v. Johnson, 1 Bos. & P. 551. See Hobbs.v. Cowp. 341 ; Abbot v. Rogers, 16 Henning. 17 C. B. N. S. 791 ; 34 C B. 277 ; Langton v. Hughes, 1 L. J. 117. M. & S. 593; Hodgson v. Temple, 2ti Smith v. Godfrey, 28 N. H. 5 Taunt. 81; 5 Paxton v. Pophain, 379. (See Howell v. Stewart. 54 9 East, 408 ; Gaslight Co. v. Tur- Mo. 400, post, § 458, note 48.) ner, 6 Bing. N. C. 324. See, also, But, where the ^seller so packed Bridges v. Fisher, 3 E. & B. 642, the liquor as to show an 23 L. J. 276 ; Geere v. Mare, 2 H. attempt to conceal the fact that ii 6 C. 339, 33 L. J. 50 ; Clay v. was liquor, the aid of the N. II. Ray, 17 C. B. N. S. 188 ; Hobbs v. courts was refused him to recover Henning, 17 C. B. N. S. 791, 34 Fishery. Lord, 63 Id. 514. G46 [LLEGAL 005) rRAOTS. [§455 without peualties for non-compliance, whether ;i contract entered into in disregard of any of them is thereby prohibited, and so illegal, or whether the object of the Act is not suffi- ciently attained by the imposition of the penalty ; and the chief test for its decision seems to he whether the provisions have, or not, some object of general policy, which requires that the contract should be invalidated. [Where a statute prohibits the making of contracts in any but a prescribed manner, they are, of course, void, if made in any other; 37 and, in general, if a statute prohibiting something to be done cannot, otherwise be made to accomplish the object intended to be effected by it, whatever is done in contravention of its prohibition must be adjudged void and inoperative.' 8 ] Thus, it has been held that enactments which required, under penalties, that all bricks made for sale should be of at least certain specified dimensions (a); or that persons who sold corn, except by certain measures, should be liable to a penalty (b) ; or that vendors of coals should, under a penalty, deliver, with the coals sold, a ticket setting forth their weight and the number of sucks in which they are con- tained (c) ; or that fanners and others should sell butter in firkins of a certain size, branded with their own and the maker's names { invalidate the grant of other land in the -am.' conveyance, hut only to affect such portions thereof and such grants therein as were in violation of such stat- utes.'-') On the same principle, a by-law which is partly good and partly had is valid as to the former part, if the latter is distinct and separable from it (a) ; and orders of justices and of other authorities, and the awards of arbitra- tors arc similarly treated (b). $ 461. Effect of Statute Rendering Performance of Contract Illegal, etc.— Where a Statute compels a breach of a private contract, [/. e., where its performance is rendered illegal by the enactment, the obligation is discharged, 83 and] the contract is impliedly repealed by the Act, so far as the latter extends," 4 or the breach is excused, or is considered as not falling within the contract (c). The intervention of the Legislature, in altering the situation of the contracting parties, is analogous to a convulsion of nature, against which they, no doubt, may provide ; but if they have not provided, it is generally to be considered as excepted out of the contract (V). Thus, where « Towle v.Smith, 2 Robt.(N. Y.) IS!). '-' Towle v. Smith, 2 Robt. (N.Y.) 189. A trust is not. invalid if made to defeal the collateral inheritance tax; it is simply this intention that is to be frustrated : Tritt v. Crotzer, 13 1':.. St. 4.-)(). (a) R. v. Faversham, 8 T. R. 352, 2 Kyd, Corp. L55 ; R. v. Lundie, 31 L. .1. M. C. 157, /<> r Quain, J., in Ball v. Nixon, 10 Q. B. L52 : i" r Bayley, J., in Clark v. Denton, 1 B. & Ad. 95 ; Brown v. Holyhead, 1 H.&O. 601, 32 L. J. 25. [Laws organizing municipal governments being designed for the preservation of public oi'der, contracts in violation of such laws are void : Louisiana State B'k v. Nav. (\>., 3 La. An. 294.] (b) R. v. Stoke Bliss, 6 Q. II. L58; R. v. Oxley, hi. 250 ; II. v. Robin- son. 17 Q. B. 406 ; R. v. Green. 2 L. M. A: P. 130; Re Goddard, 1 L. M. & R. 25. ,;:; Brown v. Dillahunty, 12 Miss. 713; and see Hampton v. Com'th, 1!) Pa. St. 329, intra. M A law laying an embargo, even for an unlimited time, docs not extend to the extinguishment of a contract with whose present per- formance it interferes, hut operates only as a suspension of it until the law is repealed : Baylies v. Fetty- place, 7 31ass 325. (c) Per cur. in Brewster v. Kit- ehell. 1 Salk. 198. (d) Per Pollock, ('. B., in Oswald v. Berwick, 3 E. & B. 653, 23 L. J. 331. [In Hampton v. Com'th, li> Ra. St. 329, proceedings had been taken under an ael of assembly to open a street, the act providing for Iheassessmenl of damages sustained by property holders upon lots of § 462] ILLEGAL CONTRACTS. '...'.► land was leased to certain persons, who covenanted to build a workhouse on it, and not to use the house or land for any- other purpose than the support of the poor of the parish ; and the I'oor Law Commissioners, under the 4 & 5 Win. 4, c. 76. incorporated the parish in a Union, and removed the paupers to the union workhouse, whereupon the house was shut up and the land was let at a rack rent, which was applied in aid of the rates ; it was held that the covenant had not been broken, or that the breach was excused by legislative compulsion (a). [And so, where the right of bail for a defendant taken under a capias ad satisfaciendum to surrender the principal in discharge of his liability, is destroyed bj T statute, the bail is discharged. 65 ] § 462. If a man covenants not to do a thing which was unlawful at the time of the covenant, and an Act subsequently makes it lawful only, but not imperative, to do it; the cove- nant is unaffected by the Act (b). [But if he agrees not to do a thing, which, at the time is lawful, and a subsequent statute compels him to do it, the agreement is repealed." 6 Thus] where a lessee covenanted, for himself and his " assigns," that he would not build on the demised premises ; others benefited and giving a pro- obligation of such a contract could ceeding for the enforcement. Be- not be impaired; for it has no fore completion of this proceeding, obligation:" ubi supra, p. 334. J the act was repealed. It was (a) Doe v. Rugeley, G Q. B. 107. contended that the right of the See D. of Devonshire v. Barrow, 2 property holders to the damages Q. B. D. 286. assessed could not be affected, 65 Brown v. Dillahunty, 12 Miss, being in the nature of contract 713. In Union Locks & Canals v. rights. This was denied by the Towne, 1 N. H. 44, it was held, court : "But," says Black, C. J., that one who became a proprietor '• assume it to be a contract. Let in a company was discharged from it be supposed that the plaintiff in his contract and liability to subse- error covenanted to pay a certain queut assessments by a subsequent sum in consideration of the addi- statute, passed upon petition of the tioual valuewhich would begiven to corporation without his assent, his lots. If the street is not opened authorizing it to hold a greater the consideration fails, and then amount of real estate, the subscrip- what becomes of the contract ? tion being treated as a contract in Equity will always relieve against which no valid change could be a contract when an unforeseen made without the assent of all the accident, such as the interference of parties. the Legislature, has rendered it (b) Per cur. in Brewster v. impossible for both parties to per- Kitchell, 1 Salk. 198. [Brick Pres. form it. It will scarcely be said Ch. v. New York, 5 Cow. (N. Y.) that a contract, the execution of 538.] which is forbidden by equity and 66 Brick Pres. Ch. v. New York, good conscience, is within the supra. inhibition of the constitution. The 6C0 ILLEGAL CONTRACTS. ''■ and he was afterwards compelled, under an Act of Parlia- ment, to sell the land to a railway company, who built on it ;. it was held that the company was not an "assign" within the meaning of the covenant. The Legislature, it was con- sidered, had. in compelling the sale, created a kind of assign- not contemplated by either lessor or lessee when the contract wag entered into : and so, the lessee could not justly be held ponsible for the acts of such an assign. It was not reason- able to impute to the Legislature the intention that he should remain liable for the non-performance of that which it had r itself, prevented him from performing (a). § 463. S'atuie Implies Means of Enforcement.— When a statute creates a new obligation, or makes unlawful that which was lawful before, a corresponding right is thereby impliedly aiven, either to the public, or to the individual injured by the breach of the enactment; and sometimes to both. [" The general rule as to the way in which the authority of statutes may be enforced directly is, that whenever a statute orders a thing to be done, or forbids the doing of anything, an indictment lies for the omission of the one or the commis- sion of the other, and an action also lies at the suit of any person who has sustained injury from such omission or com- mission." 67 "What the law says shall not be done it becomes illegal to do. and is therefore the subject-matter of an indict- ment without the addition of any corrupt motives." " In every case where a statute prohibits anything and doth not limit a penalty, the party offending therein may be indicted as for a contempt against the statute." 69 " Whenever an .Vet of Parliament doth prohibit anything, the party grieved shall have an action, and the offender shall be punished at the Kind's suit." 70 ''It is written on the horn-book of the law, that the public and a party particularly aggrieved, may Baily v. De Crespigny. L. R. an act, etc., unlawful, see post, 4 B 180. See, also, Wadham § 4Ss. | v ]•' M. Genl., L. R. Q. B. (II I ; 61 Wilb., Stat, 1,. pp. 69-70. Brown v Mayor of London, it C. 68 Ib.,oit, R. v. Sainsbury, 4 T. B \ S 726, 30 L. J. 225 ; New- R., at p. 457, per Ashhurst, J. ington v. Cottingham, 12 Cu. D. 69 Cit. Crowther's Case, Cro, 725, 48 L. J. 226. [ Asto the effect Eliz., at p. 655. of the repeal of a statute making '■' 2 Inst. 163. •§§ 4G4, 465] IMPLIED REMEDIES. (>(>1 each have a distinct but concurrent remedy for an act which happens to be both a public and a private wrong." 71 ] § 464. Implied Remedies where Act Prohibits or Commands something Public. — If a statute prohibits a matter of public grievance (a), or commands a matter of public convenience (p), all acts and omissions contrary to its injunctions are mis- demeanors; and if it omits to provide any procedure or punishment for such act or default, the common law method of redress is impliedly given ; that is, the procedure by indictment, and punishment by tine and imprisonment (c). But the matter must be strictly of public concern. If the statute extends only to particular persons, or to matters of a private nature, as those relating to distresses by lords on their tenants, disobedience would not be indictable (d). Where the burden of repairing a private road for the use of the owners and occupiers of tenements in nine parishes, was thrown upon the owners and occupiers in six of those parishes; the latter were held not indictable for the non- repair of the road, because the duty did not concern the public, but only the individuals who had a right to use the private road (.. 34 Pa. St. 288; Merrimac 72 Id. 331 ; Means' App., 85 Id. Min'- Co. v. Levy, 54 Id. 227; 75 ; ante, § 351. § 467j IMPLIED REMEDIES. 665 claims."] But where a by-law required a traveler without a ticket to pay the fare from the station whence the train first started to the end of his journey, and, by 8 Yict. c. 20, sect. 145, penalties or forfeitures imposed by the by-laws were recoverable before "justices : it was held that the bv- law did not create a debt recoverable in a Court of civil jurisdiction (a). [And where a statute against usury, besides empowering the debtor to make certain deductions on account of the usury paid by him, gave him an action of debt against the creditor, and imposed upon the latter the liability to pay a sum equal to three times the amount of the usury paid, it was held that a party who had paid usury could not recover the excess over the legal percentage in an action of assumpsit for money had and received, but that the remedy was exclusive!}' under the statute/ 9 ] § 467. Statute Creating Public Duty and Giving Remedy, in Different Sections. — If the statute creates the public duty in one section, and provides a procedure for the enforcement of it, or the punishment for its breach, in a separate section, 80 or if the duty to which the new procedure applies, already existed before the Act (l>), the offence is usually subject to the common law procedure and punishment, as well as to the special procedure so given. Thus, under the 10 & 11 Wm. 3, c. 17, which declared, in the first section, that keep- ing a lottery was a public nuisance, and, by the second, made the keeper of one liable to a penalty recoverable by penal action, it was held that the offender was also indictable (c). The 6 & 7 Vict. c. 73 having enacted, in one section, that no person should act as an attorney who was not duly admitted and enrolled ; and in another, that a breach of this prohibition should be deemed a contempt of Court; it was held that the offence was also indictable (d) [So, where an act by its 90th section imposed upon the supervisors of town- ships all the duties imposed by law on the supervisors of public highways, and declared them subject to the same 18 Lane's App., 105 Pa. St, 49. (b) See sup. §§ 235, 236. R. v. (a) London & Brighton R. Co. v. Davis, Say. 163; R. v. Gould, 1 Watson, 4 C. P. D. 118. Saik. 381. 19 Crosby v. Bennett, 7 Met (c) R. v. Crawshaw, Bell, 303, (Mass.) 17. 30 L. J. M. C. 58. >° See ante, § 465. (d) R. v. Buehanan. 8 Q. B. 883. (50G IMPLIED REMEDIES. [ £ 4GS responsibilities, and by its 02nd section provided, that, if any supervisor should neglect to perform any duty required of him by law,he should forfeit a certain sum to be recovered summarily by action of debt in the name of the common- wealth, it was held that an indictment lay for a refusal or neglect to repair. 81 ] So, where a statute prohibited the erection or maintenance of a building within ten feet of a road, declaring such an erection a common nuisance; and, in another section, authorized two justices to convict the proprietor, and to remove the structure; it was held that an indictment, also, lay for the nuisance (a). ^ 4<5S. Same Rule as to Private Duties.— The same principle applies when the duty is a private one. Thus, the 11 Geo. 2, c. 19, which, after authorizing landlords, by section 1, to seize the goods of their tenants, when fraudulently and clandestinely removed to elude a distress, gives them, by section 4, a summary remedy before justices, for recovering double the value of the goods removed, against tho tenant, or any person who assisted him, was held to give them also, by implication, the right of suing for damages for the fraudulent or clandestine removal (b). [But, where the first section of an act punished larceny by fine, etc., the third gave the ow T ner of the goods the right to treble the value of the goods at the hands of the offender, and in case of his inability to pay, authorized the court to sentence him to make satisfaction by service to the owner, who might thereupon sell him in service ; and the tenth section pro- vided, that, unless the owner do so in thirty days, or give the gaoler security to pay the charges of keeping the prisoner, the gaoler might set him at liberty, it was held, that, in such case, the owner had no remedy by action of debt 81 Edgs v. Com'tb, 7 Pa. St. 275. 535. [Sec, to similar effect, It is proper to observe, however, Renwick v. Morris, 3 Hill (N. Y.) that, in the decision, the ninety- 021 ; 7 Id. 575.] second section was held to rein (&) Bromley v. Holder), Moo. & more particularly to failure to per- M. 175 ; Horsfall v. Davy, 1 Stark. form the other duties imposed by 169; Stanley v. Wharton, 9 Pri. the act, those of overseers of the 301, 10 Pri. 138. See, also, Collin- poor, and to be designed for the son v. Newcastle K. Co., 1 ('. & K. Ik n. lit of individuals. As to lia- 540; Ross v. Price, 1 Ex. 1). 269, bility of supervisors to indictment. 45 L. J. Ex. 777; and the cases col- sec ante, § 464. lected in the note to Ashhv v.. (a) R. v. Gregory, 5 B. & Ad. White, 1 Sin. L. C. *342. § 409] IMPLIED REMEDIES. 607 against the offender after being so set free/" And in this connection may be cited the rule, that, where a statute creates a right and limits the time for bringing an action upon if, if the limitation is suffered to expire without any action, the right itself is gone, and cannot be revived by being claimed in another proceeding. Thus, where an act authorized an unlucky gambler to recover back the money lost by him, if suit be brought in ten days, it being expressly provided that the suit shall be founded on the act and the recovery be according to the form of the act, thus showing that it did not proceed upon the principle of compensating an injured party in damages, if the time be allowed to slip by, the right given by the act was gone entirely and could not be asserted, e. g., upon distribution of the proceeds of a forfeited bond which had been given by the keeper of the gambling house for appearance in court, upon being prosecuted. 83 ^ 469. Where Third Parties Interested in Duties or Prohibitions. — When a statute, for the benefit of particular individuals, imposes a ministerial, as distinguished from a judicial duty,, [or prohibits the doing of a thing,] any of those individuals,, if directly injured by the breach of the duty [or prohibition,] has impliedly a right to recover, from the person on whom the duty is cast [or the prohibition imposed,] satisfaction for the injury done to him contrary to the statute (a), unless, of course, a different intention is to be collected from the Act ; [and if the statute points out no specific remedy, a remedy may be drawn from the common law. 84 Thus, where a statute imposes upon house-owners the absolute duty of pro- viding fire-escapes, any person damnified by a non-perform- ance thereof may maintain an action therefor. 85 ] An incor- porated vestry which refused to perform the statutory duty of removing dirt and ashes, was held liable in an action by the party aggrieved, for the expenses incurred from the refusal (b) So, an unsuccessful candidate at an election is 82 Smith v. Drew, 5 Mass. 514. 411. [Van Hook v. Whitlock, 2 83 Com'th v. Robbins, 26 Pa. St. Edw. (N. Y.) 304.] 165. u Kueass v. Bank, 4 Wash. 106. (a) 2 Westmr. 13 Ed. c. 50 ; 1 85 Willy v. Mulledy, 78 N. Y. Inst. 56a; Anon., 6 Mod. 27 ; per 310. cur. in Coucb v. Steel, 3 E. & B. (b) Holborn Union v. St.. Leonard's, 2 Q. B. D. 145. 6GS IMPLIED REMEDIES. [§ 4r if a carrier is thereby put to the trouble and expense of conveying his goods by a road over- land (b). When the public duty of repairing a sea-wall was imposed on a municipal corporation, it was held that an individual whose house was damaged by the sea, in conse- quence of the neglect of this duty to keep the wall in repair, was entitled to sue the corporation for compensation (c). But the injury must be the proximate, necessary, or natural result of the infringement of the duty; the infringement being the causa causans, and not merely a causa sine qua non, of the special damage (d). [And this applies even where a statute, relating to the punishing of an offence, contemplates the redress of injuries caused by them to individuals, as, where it directs that the proceeds of forfeited bonds given by persons prosecuted for crimes, conditioned for their appearance in court to stand trial, shall be distributed, inter alia, " to satisfy the damages sustained by any person by reason of the commission of such crime." Under such a 3tatute, it was held that one who had lost money at play in the house of a person who was prosecuted for keeping a gambling house and forfeited his recognizance, was not entitled to be re-imbursed out, of the proceeds thereof, not only because he had lost the statutory remedy given him to obtain such re-imbursement from the offender, 05 but also because his misfortune was not the necessary or natural direct consequence of the misdemeanor for which the defendant was prosecuted. The batter's offence was but the causa »•* Griffin v. Sanbornton, 44 N. 56. ]I 246 (<0 Lyme Regis v. Henley, 1 (a) Rose v. Groves. 5 M. & G. Bing. N. 0. 222. See Nitrophos- 613; Wilkes v. Hungerford Market pbate Co. v. St. Katherine Dock o.,''2 Bing. X. C. 281; Lyon v. Co., 9 Ch. D. 503. Fishmongers' Co., 1 A.pp. 662 ; ('/) Benjamin v. Storr, L. R. 9 C. Mar-hull' v Clleswater Co., L. R. P. 400 ; Colchester v. Brooke, 7 7 o B LG6, per Blackburn, J. Q. B. 339; Walker v. Goe, 3 II. & ( M R ose v Miles, I M. & S. 101 ; N. 395, 1 Id. 351 ; Romncy .Marsh Dobsou v. Blackmore, 9Q. 15. 991 ; v. Trinity House, L. R. 5 Ex. 204. P i *oua v. Betbnal Green, 3 C. P. u See ante, § 4(58. § 474] IMPLIED REMEDIES. (575 causarum ; the loser's own voluntary net or folly, the causa causans, and volenti non fit injuria. 96 ] § 4/4. Statutes Foreign to Individual Interests Give no Private Action. — Nor does any right of action arise where the duty has been imposed by the Legislature for a purpose altogether foreign to individual interests. Thus, although ship-owners are required, under the Contagious Diseases (Animals) Act of 1861), to provide pens and footholds for cattle on board, no action lies against them under the Act by the owners of cattle which are washed overboard, owing solely to the neg- lect to provide those appliances ; for the Legislature, in pro- viding or authorizing such regulations, did not contemplate the protection of proprietary rights, but had in view solely the sanitary purpose of preventing the communication of infectious disease to cattle on sea transit (a). Where a person imported cards contrary to the statute 3 Edw. 4, c. 4, which provided that the cards so imported should be forfeited ; it was held that he was not liable to an action at the suit of one to whom the king had granted a license to import cards, paying rent to the king, and who alleged that he was thereby disabled from paying his rent ; for the prohibition did not seem to have been intended for the benefit of the person to whom the license was granted. But besides, the damage may have been considered too remote (b). [The accepted doctrine upon this subject is well illustrated by the following case and decision. An act forbade prison authorities to per- mit a convict to work at any other mechanical trade than that in which he had been educated before conviction ; made the violation of this prohibition a misdemeanor punishable by a line of $1,000 and imprisonment for one year ; and declared it to be the duty of the attorney-general to cause the offender to be prosecuted, upon information and com- plaint made to that officer. It was held that no injunction could be obtained, or compensation claimed, at the suit of private workmen alleging injury to themselves, by reason of 96 Com'th v. Bobbins, 26 Pa. St. (b) Roll. Ab. Action sur case. M. 165. 16, p. 106. cited in the judgment (a) 32 & 33 Vict. c. 70 ; Gorris v. in Conch v Steel, 3 E. & B. 413, Scott, L. R. 9 Ex. 125. 23 L. J. Q. B. 126. 670 IMPLIED REMEDIES. [§ 4T4r a violation of the statute, the injury consisting- in the lowering of wages and in seriously affecting the interests of the plain- tiffs and others pursuing the same trade, by the unlawful corn- petition thus raised up in the same. It was said that a public prohibitory statute, though passed chiefly for the protection of a class, still docs not confer any individual rights. Its infraction is a wrong to the public, for which the people, in their collective capacity, are entitled to redress, — not, how- ever, an individual, unless he has sustained a special injury not in common with others. If, however, the injury is to a class, it is general, or common and not special. 97 ] 97 Smith v. Lockwood, 13 Barb. (N. Y.) 209. 475] REPEAL. 677 CHAPTER XVII. Repeal. Commencement. Judicial Notice. § 475. Effect of Repeal of Repealing Act on Original. § 478. Effect of Repeal on Pending Proceedings. Prosecutions. § 479. Effect, etc., on Actions of Penal Nature, or where Jurisdiction depends on Statute Repealed. § 480. Effect, etc., on Rights and Remedies founded Solely on Statute. •§ 482. Limits of this Doctrine. § 484. Effect of Savings in Penal Acts. § 4S5. Effect of Savings of Civil Rights and Procedure. § 486. What not within Saving of Existing Rights, etc. § 487. Saving of Prosecutions and Rights not a Saving of Procedure. § 488. Effect of Repeal on Contracts in Violation of Statute Repealed. § 489. Time when Repeal takes Effect. § 490. Re-enactment not a Repeal in Spite of Express Repealing Clause. § 491. Limits of this Rule. § 492. Effect of Repeal of Act Incorporated by Reference in Another. § 494. Non-user has not Effect of Repeal. § 495. Qualification of this Rule. § 496. Commencement of Statutes. Ancient Rule. § 498. Modern Rule. Fractions of Day. § 499. Postponement of Operation. ■§ 500. Repugnant Acts Passed Same Day. § 501. What Acts are Judicially Noticed. § 502. What are Public Acts. § 503. What are Private Acts. § 504. Private Acts Requiring Judicial Notice. § 505. Construction of Private as Compared with Public Acts. § 475. Effect of Repeal of Repealing Act on Original. — Where an Act is repealed, and the repealing enactment is repealed by another, which manifests no intention that the first shall continue repealed, the common law rule was, [and in the absence of any statutory declaration to the contrary, the general rule still is,] that the repeal of the second Act revives the first ;' and revives it, too, ab initio, and not merely 1 Brown v. Barry, 3 Dall. 365; People v. Davis, 61 Barb. (N. Y.) Janes v. Buzzard, Hempst. 259; 456; Gale v. Mead, 4 Hill. (N. Y.) 678 l;l PEAL. UH lO from tlie passing of the reviving Act (a). [The revival of the original statute is also, in general, the effect, of the expiration of a repealing statute by its own limitation, 9 or of the suspension of the repealing act ; 3 and it is immaterial whether the repeal of the repealing act be express or by implication.'' Moreover, it extends, not only to statutes, but to the common law ; so that, where an act superseding in any particular the common law rule previously applicable is repealed, that rule is held to be revived. 6 The doctrine stated is, however, not without exceptions, founded in the necessity of giving effect to the legislative intent. Thus, it is said that an absolute affirma- iive repeal of a statute by a subsequent one will survive the expiration of the latter by its own limitation ; 6 that the repeal of a statute which was a revision of, and which was intended as a substitute for, a former act to the same effect, will not revive the latter, such a result, being manifestly contrary to the intent of the Legislature ; 7 and that, for the same reason, the repeal of an act amending another " so as 109 ; Hastings v. Aiken, 1 Gray, (Mass.) 163 ; Com'th v. Church- ill, 2 Met. (Mass.) 118 ; Com'th v. Mott, 21 Pick. (Mass.) 492 ; James v. Dubois, 16 N. J. L. 285 : Poor Directors v. R. R. Co., 7 Watts & S. (Pa.) 230 ; Exp. Doran, 2 Pars. (Pa.) 467 ; Zimmerman v. Turnp. Co., 32 P. F. 8m. (81* Pa. St.) 96 ; Doe v. Nay lor, 2 Blackf. (Ind.) 32; Teter v. Clayton, 71 Id. 237 ; Brinkley v. Swicegood, 65 N. C. 626 ; Harrison v. Walker, 1 Ga. 32; People v. Wintermutc, 1 Dak. 63. In Durr v. Com'th (Pa.), 11 Centr. Rep. 181. it was held that the act of 13 May, 1887, which contains a general repeal of "all local laws fixing a license rate less than " that provided by that act, repealed the act of 3 Apr., 1872, applying only to Allegheny Co., and revived those provisions of the general act of 26 Feb., 1855, which were not inconsistent with the act of 1887 ; the act of 1855 having been re- pealed by that of 1872 as to said county. (a) 2 Inst. 686 ; 4 Inst. 325 ; Case of Bishops, 12 Rep. 7; Phillips v. Hopwoofl, 10 B. & C. 39 ; Tattle v. Grimwood, 3 Bing. 496, per Best, C. J.; Fuller v. Redman. 26 Bcav. 600, 29 L. J. 324. [The Aurora v. U. S., 7 Cranch, 382. See, as to the effect of the repeal of a statute repealing another upon the right to prosecute for an offence against the latter : Com'th v. Getchell, and Com'th v. Mott, ante, § 279.] 2 Collins v Smith, 6 Whart. (Pa.) 294. See U. S. v. 25 Cases of Cloth, Crabbe, 356, infra. 3 Brown v. Barry, 3 Dal. 365. 4 People v Davis, 61 Barb. (N Y.) 456. 5 Matthewson v. Phoenix, etc., Foundry, 20 Fed. Rep. 281 ; State v. Rollins, 8 N. H. 550 ; Bish., Wr. I... § 186: and see Gray v. Obear, 54 Ga. 231. 6 U. S. v. 25 Cases of Cloth, Crabbe, 356. ■> Butler v. Russeh 3 Cliff. 251. A tier an act has, in several different years, been re-enacted with changes, a subsequent repeal of the earlier amendatory acts neither restores nor repeals the original act: People v. Assessors of Brooklyn, 8 Abb-. Pr. X. S. (N. Y.)150. § 476] REPEAL. 679 to read " in a given manner, which operates as a total merger of the amended act in the amending one, 8 cannot revive the original statute. 9 And it has been denied, that the repeal of a statute revives the common law rule which it supplanted. 10 Nor does it follow from the rule that an act is revived ab initio, that proceedings commenced under an act which was repealed before their completion, are revived and reinstated by the repeal of the repealing act, there being no terms in the latter ratifying, confirming or reviving them, and no private interests having vested under them." Nor, again, does the revival of an act providing that the penalty for an offence shall be'sued for by a com- mon informer, by the repeal of the act authorizing overseers only to sue, so far as it excluded others from so doing, restore the right of a common informer to prosecute for offences committed between the passage of the second and that of the third act, the right of the overseers to sue remaining exclusive as to such. 12 ] § 476. But the rule of the common law, in this respect, does not apply in England to repealing Acts passed since 1850. Where an Act repealing, in whole or in part, a former Act, is itself repealed, the last repeal does not now revive the Act or provisions before repealed, unless words be added reviving them (a). [Similar enactments are in force in many of the states of the Union ; ,s and the rule established 8 See ante, §§ 195-196, 294. generally, in New Hampshire, 9 People v.*" 'Montgomery Super- Massachusetts, Maine, Vermont, visors, 67 N. Y. 109 ; Goodno v. Rhode Island, New Jersey, Ohio, OshUosh, 31 Wis. 127. Indiana, Illinois, Michigan, Wis- 10 State v. Slaughter, 70 Mo. cousin, Iowa, Minnesota, Kansas, 484. Nebraska, West Virginia, Missouri, 11 Com*th v. Leech, 24 Pa. St. Arkansas, Texas, California, 55, a case of proceedings to extend Colorado, Dakota, Idaho, Mon- a street in a city. tana. South Carolina. Missis- 15 Vanvalkenburgb v. Torrey, 7 sippi, Florida, Louisiana, Ari- Cow. (N. Y.) 252. zona ; or unless both laws are (a) 13 & 14 Vict. c. 21, s. 15. passed at the same session ; Vir- 13 See Stimson, Amer. Stat. L., giuia, Kentucky. And see Sullivan p. 143, § 1043, that, by express v. People, 15 111. 233 ; Comnvl B'k statute, no act oi part of an act is v. Chambers. Hi Miss. 9 ; Smith v. to be deemed revived by the repeal Hoyt, 14 Wis. 252; Man love v. of the repealing act unless White, 8 Cal. 376; Tallamon v. so expressed, — as to repeals by Cardenas, 14 La. An. 509 ; Wi- the code or other revisions, kouski v. Witkouski, 16 Id. 232. New York, Washington, Utah, REPEAL. [§§477,478 by them has been beld to apply to repeals by implication."] But it seems not to apply where the first Act was only modified by the second, by the addition of conditions, and the enactment which imposed these was, itself, afterwards repealed (a). In such a case, the original enactment would revive. [So, where a statute merely excepts a particular class of cases from a prior general law which continues in force, a repeal of the excepting statute returns that class of cases to the operation of the general law. 16 Nor does such a rale apply to an act suspending a repealing act. 18 And where remedies upon contracts have been superseded by a statute, the repeal of the latter restores them, except as to rights vested under the statute while in force. 1 ' § 477. [Where the rule is established by statute, that the repeal of a repealing act shall not revive the original act, without express words, a mere declaration by the Legisla ture that an act which repealed certain sections of another " shall not repeal ' such sections, is not a law reviving or enacting them.'" Nor was an act applicable to the several counties of the state, but repealed as to one of them, held revived by a subsequent amendment of the first act, though using the phraseology of the same, as to its application to " the several " counties of the state." But the passage of a supplementary act, excepting certain counties from the operation of an act passed the day before, to which it was a supplement, and which repealed another statute, was held to be so far a part of the act which it modified as to continue the old law in force as to those counties. 20 ] § 478. Effect of Repeal on Pending Proceedings. Prosecutions. — Where an Act expires or is repealed, it is, as regards its 14 Milne v. Iluber, 3 McLean, 212; " Johnson v. Meeker. 1 Wis. Stirman v. State, 21 Tex. 734. 436. It was held in Winter v. ./Mount v. Taylor, L. Ft. 3 C. Dickerson, 42 Ala. 92, that the P. 645. See, also, Levi v. San- ratification of laws suspended derson, and Mirfin v. Attwood, revives them and liens dependent L. R. 4 Q. B. 330. [And see upon them, so as to be enforceable Glaholm v. Barker, L. li. 1 Ch. as before suspension. 223. 228-9.] 18 State v. Conkling, 19 C'al. 15 Smith v. Iloyt. 14 Wis. 252 ; 501. and see Bank v. Collector, 3 Wall. 19 People v. Tyler, 36 Cal. 522. 20 Manlove v. White, 8 Cal. 37(5. 10 Brown v. Barry, 3Dall. 365. § 478] KKPKAL. 681 operative effect (a), considered, in the absence of provision to the contrary, as if it had never existed, except as to matters and transactions past and closed (b). [As to all future matters, all steps yet to taken, the repealed statute upon which they are bused, is treated as utterly obliterated; so that, if, after rendition of judgment, and pending an appeal therefrom, there has been a change or repeal of the law applicable to the rights of the parties, the appellate court must hear and decide the case according to the then existing law, and upon a second trial, the inferior court must recognize the change and conform to it, not to the law as it may have been at the time of the first trial. 21 ] Where, therefore, a penal law is broken, the offender cannot be punished under it, if it expires [or is repealed] before he is convicted, although the prosecution was begun while the Act was still in force, [unless the repealing act contains a saving clause] (c). Every step taken under a statute that (a) See Atty.-Genl. v. Lamp- lough, sup. § 49. {b) Per Lord Teuterdeu in Surtees v. Ellison, 9 B. & C. 750 ; Churchill v. Crease, 5 Bing. 178 ; see, also, Kay v. Goodwin, 6 Bing. 576, per Tindal, C. J. ; Morgan v. Thorne, 7 M. & W. 400 ; Steven- son v. Oliver, 8 M. & W. 24; Simpson v. Ready, 11 M. & W. 340 ; per Parke, B. ; Comp. R. v. West Riding, 1 Q. B. D. 220. v. R. R. Co. 21 Musgrove v. 50 U. Miss. 677, cit. Sch'r Rachel S., Cranch, 329. (c) 1 Hale, P. C, 291, 309 ; Miller's Case, 1 W. Bl. 451 ; R. v. London (JJ.) 3 Burr. 1450 ; Char- rington v. Meatheringham, 2 M. & W. 228 ; R. v. Mawgan, 8 A. & E. 490 ; R. v. Denton, 18 Q. B. 701, 21 L. J. M. C. 207 Swann, 4 Cox, 108 ; U. S. Helen, 2 Crancu, 203. Irresistible, 7 Wheat. Steamsh. Co. v. Joliffe, 2 Wall. 450 ; U. S. v. Tynen, 11 Wall. 88 ; Norris v. Crocker, 13 How. 429 ; Yealon v. U. S., 5 Cranch, 281 ; Sch. Rachel v. U. S., Id. 329; States v. Passmorc, 4 ball. 372 ; Anon., 1 Wash. M ; I. S. v. Fin- lay, 1 Abb. U. S. 304 ; Hartung v. People, 22 N. Y. 95 ; People v. R. v. v. The [The 551 ; Police Board, 16 Abb. Pr. (N. Y.) 473 ; Smith v. Banker, 3 How. Pr. (N. Y.)142 ; Com'th v. Kimball, 21 Pick. (Mass.) 3?3 ; Com'th v. Mar- shall, 11 Id. 350 ; Com'th v. Mc- Donough, 13 Allen (Mass.) 581 ; Jones v. State, 1 Iowa, 395 ; State v. Allaire, 14 Ala. 435 ; Griffin v. State, 39 Id. 541 ; Aaron v. State, 4U Id. 307 ; Carlisle v. State, 42 Id. 523 ; Com'th v. Duane, 1 Binn. (Pa.) 601 ; Abbott v. Com'th, 8 Watts (Pa.) 517 ; Genkinger v. Com'th. 32 Pa. St. 99 ; People v. Tisdale, 57 Cal. 104; People v. Hobson, 48 Mich. 27 ; State v. O'Connor, 13 La. An. 480 ; Heald v. State 36 Me. 62 ; Lewis v. Foster, 1 N. H. 01 ; State v. Inger- soll, 17 Wis. 631 ; Rood v. Ry. Co., 43 Id. 146 ; Keller v. State, 12 Md. 322 ; Annapolis v. Stale, 30 Id. 112; Calkins v. State, 14 Ohio St. 222; State v. Fletcher, 1 R. 1. 193 ; Taylor v. State, 7 Blackf. (Ind.) 93 ; State v. Lloyd, X Ind. 659 ; Howard v. State, 5 Id. Is;; ; Speckert v. Louisville, 18 Ky. 287; State v. Cole, 2 McCord (S. C.) 1 ; State v. Cross, 4 .loins L. (N. C.) 421 ; State v. Long, 78 N. C. 571 ; Scott v. Com'th, 2 Va. Cas. 54 ; Montgomery v. Stale, 2 Tex. App. 618 ; Tuton v. State, 4 »;vj ..I PEAL I § 470 has been repealed is utterly void ; presentment, trial, con- viction and sentence become illegal." If an indictment has been found, it may be quashed on motion ; M for the court is bound to take notice of the repeal. 34 Though a conviction has been had, the judgment is arrested ;" and though judg- ment has been entered, if an appeal from it, or other pro- ceeding for review of it is pending, the judgment must be set aside." And so, even after conviction, appeal and argument, but before final judgment ; aT and, though a repeal after final judgment" will not ordinarily arrest the execution of the sentence," and will not do so even in capi- tal cases where sentence has been pronounced and the day set for execution, 30 yet, in the latter class of cases, if the sentence of death has been pronounced, but not executed on the day set for its execution, a repeal of the statute, before the criminal is re-sentenced requires his discharge. 31 The same effect follows any modification of a penal statute, which exempts, without special reservation, a particular class from its operation. 88 § 479. Effect, etc., on Actions of Penal Nature, or Where Juris- diction Depends on Statute Repealed. — [Actions in their nature Id. 472 ; Finckard v. State, 13 Id. 373 ; Mulkey v. Stale. 16 Id. 53 ; Wall v. State, 18 Tex. 682 ; Greer v. State, 22 Id. 588 ; Hirsckburg v. People, 6 Col. 145 ; Bish., Wr. L., § 177, and cases in note 1, p. 166.] M Hirschbmrg v. People, 6 Col. 145. 23 Carlisle v. State, 42 Ala. 523 ; Annapolis v. State, 30 Md. 112 ; U. S. v. Finlay, 1 Abb. U. S. 364. 24 Musgrove v. R. R. Co., 50 Miss. 677. 25 Cora'tb v. Duane, 1 Binn. (Pa.) 601, 608 ; State v. Long, 78 N. C. 571 ; Com'th v. Kimball, 21 Pick. (Mass.) :;T3 ; Com'tb v. Mar- shall, 11 Id. 3"i0; Norrisv. Crocker, 13 How. 429. 2 « Lewis v. Foster, 1 N. II. 61 ; Tuton v. Slate, 4 Tex. App. 472; Hubbard v. State, 2 Id. 506 ; Filze \. Side, 13 Id. 372; Speekert v. Louisville, 78 Ky. 2»7: where the court, however, ordered the appel- lant to pay the costs, and where it was also held that the repeal took away the prosecuting officer's right to fees in the action. « Keller v. State, 12 Md. 322. 28 Or after affirmance in a higher court of the judgment of the lower: People v. Hobson, 48 Mich. 27. 29 Bish., Wr. L., § 177, cit. State v. Addington, 2 Bailey (S. C.) 516 ; Foster v. Medtield, 3 Met. v. State, 40 Ala. (Mass.) 1. 30 See Aaron 307. 31 Ibid. Nor would the power to pronounce sentence be saved, in such a case, by a saving of pend- ing prosecutions or prosecutions to be brought for offences com- mitted before its passage ; for the prosecution cannot be said any longer t© be pending : Ibid. 32 See State v. Bank, 1 Stew. (Ala.) 347; Com'th v. Leflwich, 5 Rand. (Va.) 657; Com'th v. Welsh, 2 Dana (Ky.) 330. §479] KEPEAL. G83 penal, pending at the time of the repeal of the statute authorizing them, fall with it. 33 A statute authorizing the entry of judgment for double the amount of damages found by the jury being in the nature of a penal statute," the repeal of the statute after verdict, but before judgment, will defeat the right to such recovery. 35 A fortiori must such be the result, where, though the liability has arisen, no pro- ceeding has been taken for its enforcement. 34 And " the same rule applies to all proceedings, whether civil or criminal, going on by virtue of a statute at the time of its repeal." Wherever the jurisdiction exercised in proceedings depends wholly upon statute, and the statute is repealed, or expires by its own limitation, 38 the jurisdiction is gone, and with it the whole proceeding, imperfect at the time of the repeal or expiration, falls to the ground, unless there be a reserva- tion as to pending rights or causes. 39 So, where, after a re- port made by viewers, appointed by a certain court under an act, made in favor of a road, — a review granted, — and report of re-viewers filed, also in favor of the road, — an act took away the jurisdiction of that court, the latter could proceed no further. 40 Where a commissioner, to whom, in pursuance of a statute, a case had been referred by con- sent, made his report after the repeal of the statute, the court could not act upon exceptions filed to the report." Where a writ of foreign attachment was issued under an act, which, during the pendency of the suit was repealed with- 33 Union Iron Co. v. Pierce, 4 Baltimore, etc., It. It. Co. v. Biss. 327 ; Com'th v. Shopp, 1 Grant, 98 U. S. 398 ; South Caro- Woodw. (Pa.) 123. lina v. Gaillard, 101 Id. 433 ; 111., 34 Ante, § 331. etc., Canal v. Chicago, 14 111. 334 ; 35 Bay City, etc., R. R. Co. v. North Canal Str. Road, 10 Watts Austin, 21 "Mich. 390. Comp. (Pa.) 351 ; Fenelon's Pct'u, 7 Pa. Worthen v. Ratcliffe, 42 Ark. 330, St. 173; Hampton v. Com'th. 19 post, § 481. Id. 329 ; Uwchlan Tp. Road. 30 36 Com'th v. Standard Oil Co., Id. 156; Road in Hatfield, 4 101 Pa. St. 119, the case of a pen- Yeates (Pa.) 392 ; Lamb v. Schot- alty added to a tax for certain tier, 54 Cal. 319 ; Maonawhoc shortcomings : see post, § 483. Plant'n v. Thompson, 36 Me. 365 ; 31 Sedgw., pp. 111-112. Hunt v. Jennings, 5 Blaekf. (Ind.) 38 AsM'sstirs v. Osborne, 9 Wall. 195 ; Smith v. Arapahoe Dist. Ct., 567; Stoever v. Immell, 1 Watts 4 Col. 102. (Pa.) 258; Com'th v. Beatty, Id. 40 North Canal Str. Road, supi a; 382. and see North Str., 1 Pears. (Pa.) 39 Merch. Ins. Co. v. Ritchie, 5 199. Wall. 541 ; Exp. McCardle. 7 Id. 41 State v. Brookover, 22 W. Va. 500 ; Gates v. Osborne, 9 Id. 567 ; 214. 684 REPEAL. [§ *80 out saving pending suits, the proceeding was held to be at an end, and all subsequent steps in it coram non judice and void." And, of course, where] in an action for less than forty shillings, the defendant pleaded that the debt ought to have been sued for in a local Court of requests, the Act establishing that Court having been repealed after the plea but before the trial, the plea failed (a). Where plaintiff got a verdict for one shilling, in June, 1840, and the judge did not grant a certificate to deprive him of costs under the 43 Eliz. c. 6, until the following month, by which time that Act was repealed by the 3 & 4 Yict. c. 24 ; it was held that the power of certifying could not be exercised, in such a case, after the repeal, and that the certificate was void (Z»). So, where an action was brought and judgment recovered in 1867, in a case where title was in question, and the plaintiff would then have had his costs, either by the presiding judge's certificate, under the 13 & 14 Vict. c. 01, or by a judge's order, to which he would have been entitled ex debito justitise under the 15 & 16 Vict. c. 54, but he obtained neither until after the 1st of January, 1868, when both of those Acts stood repealed by the 30 & 31 Vict. c. 142 : it was held that the powers under those Acts had ceased to exist, and could not be exercised in the plaintiff's favor (c). § 480. Effect, etc., on Righ's and Remedies Founded Solely on Statute.— [The same rule applies to rights and remedies founded solely upon statute, and to suits pending to enforce such remedies. 43 If, at the time the statute is repealed, the remedy has not been perfected or the right has not become vested, but still remains executory, they are gone " Such is 42 Stephenson v. Doe, 8 Blackf. L. It. 3 Ex. 141, where, however, (Ind.) 508. Morgan v. Thorne, was not cited. (a) Warne v. Beresford, 2 M. & See, also. Wood v. Riley, L. R. 3 AV. 848. If an Acl which author- C. P. 26; Doe v. Holt, 21 L. J. [zed the laying of rails on a road Ex. 335 ; Comp. Doe v. Roe, 22 were repealed, the rails would Id. 17 ; llobson v. Neale, Id. 25, probably not remain lawfully : R. 179. v. Morris, 2 B. & Ad. 411. * 8 Bennet v. Hargus, 1 Neb. 419. (A) .Morgan v. Thorne, 7 M. & 44 lb. ; Butler v. Palmer. 1 Hill AV. Kin. (X. Y.) 324; Bailey v. Mason, 4 (c) Butcher v. Henderson, L. R. Minn. 546; Van Inwagen v. 3 Q. B. 335. But see contra, lies- Chicago, 01 111. 31. tall v. London ,V s. AY. R. Co., § 481] REPEAL. GS5> the effect, e. g., of an act taking away the right to acquire a mechanic's lien, if the requisite proceedings to fix the lien have not been completed; 40 of the repeal of an act by which the Legislature, ex mero fnotu, gives an individual property belonging to the state, if the grant be not accepted ; 18 of an act repealing the authority given to towns to pay bounties to volunteers, and prohibiting them from making appropria- tions for such purpose, even after a vote of the town to pay such bounties. 47 So, where an act had been passed authoriz- ing mortgage debtors to redeem their property sold under foreclosure decree, within one year from the date of sale, and a sale was made on December 27, 1837, and a subsequent act, to take effect in November, 183S, repealed the law referred to, it was held, that, as the right acquired under the repealed law was inchoate merely, until actual exercise of it, 48 there could be no right to redeem from the sale of December 27, 1837, after the repealing act went into effect. 49 Again, where an act authorizing the opening of streets directed the assess- ment of damages to property holders upon lots benefited by the improvement, and gave a proceeding to enforce payment thereof, the repeal of the act, before the consummation of the- proceedings, destroyed as well the right to recover as the obligation to pay. 50 So, too, the defence of usury falls with statute on which it rests. 61 § 481. [The rule would, of course, be otherwise, if the rights referred to had become vested before the repeal. 02 If, e. g., the grant by the Legislature had been accepted, a repeal of the statute would not deprive the grantee of the property ; 63 for rights that have become vested under a statute cannot ordinarily be divested by a repeal of it." 45 Bailey v. Mason, supra. See 51 Ewell v. Dasrgs, 108 U. S. 143. Templeton v. Home, 82 111. 491, as Comp. Whitaker v. Pope, 2 to the control of the Legislature Woods, 463„ and infra, note 03. over such remedies. 6 - Comp. ante, £§ 271, et seq. 46 See James v. Dubois, 16 N. J. 63 James v. Dubois, supra. L. 285. m ibid . D en v Robinson, 5 Id. 47 Veats v. Danbnry, 37 Conn. C89 ; Rice v. R. R. Co., 1 Black, 412. 358 ; Naught v. O'Neal, 1 111. A pp. 48 See aute, § 281. 29; Taylor v. Rushing, 2 Stew. 49 Butler v. Palmer, 1 Hill (Ala.) 160 ; Davis v. Minor, 2 Miss. (N. Y.)324 183; MMechen v. Mayor, 2 liar. 60 Hampton v. Com'th, 19 Pa, & J. (Md.) 41 ; Exp. Graham, 13. St. 329. See this case, ante, §461. Rich. (S. C.) 277; Mitchell v. note. Doggett, 1 Fla. 356. REPEAL. 482 Tims, where ;i plaintiff had performed services for a sub- contractor on a railroad and gave notice to the company of his claim, which, under the then existing statute, fixed it with liability therefor, and the act was subsequently repealed, it was held that lie had acquired a vested right of action against the company which was not affected by the repeal, and that his suit should he sustained. 66 So, it has been held that the repeal of a statute takes away no right of action for damages which has already accrued. 68 Thus, where an act which made it unlawful for a railroad company to charge higher freight rates than those prescribed in the act was repealed, it was held that a party who, during the time when the act was in force, was compelled to pay higher rates, and did so under protest, w r as not deprived, by the repeal, of his right of recovery therefor. 67 And even where one had, under a certain statute, acquired a right to the payment of double the value of his improvements on donated land, it was held that this was a vested right which would not be divested by the repeal of the statute. 63 § 482. Limits of this Doctrine. — [The doctrine, indeed, of the destruction of imperfect rights and actions depending on statutes, by their repeal, must not be carried beyond its proper scope. It has been said that an act repealing, or in anywise modifying, the remedy of a party by action or suit, should not be construed to affect actions or suits brought before the repeal or modification. 69 Whilst this statement is probably too broad, it is nevertheless true, that, where the effect of the new legislation is not' to take away the jurisdiction or right previously existing, nor to deny a remedy for its enforcement substantially like the one previously allowed, but merely to change the remedy, the right and the juris- diction continue under the form directed by the new act, where it applies, or else under the old law. 00 * Thus, where, 55 Strcubel v. R. 11. Co., 12 Wis. 330. Com p. Bay City, etc., R. R. G7 <'<>. v. Austin, 21 Mich. 390, ante, M Grey v. Mobile Trade Co., 55 ? 1=79. Ala. 387. And sec ante, § 7o, note t9 Newsom v. Greenwood, 4 31. Oreg. 11!). 'Graham v. Rv. Co., 5:) Wis. 60 llickorv Tree Road, 43 Pa. St. 47:;. 139 ; Uwclilan Tp. Road, 30 Id. - Worthen v. Ratcliffe, 42 Ark. 156. 4S3] REPEAL. 687 pending a proceeding for the laying out of a road, under an act requiring the appointment of six viewers, an act was passed repealing this law as to a certain county by changing the mode of proceeding, (e. g., in substituting three for six viewers,) but not the court in which the proceedings were to be had, or the basis of the exercise of the jurisdiction, or the powers of the court in the proceedings, it was held that the proceeding might be perfected under the new law, and that, upon petition for a review, the appointment of three viewers for the purpose was proper. 61 So, it is said, that the repeal of a statute prescribing merely a particular mode of trial, will not annul proceedings had under the statute in eases pending at the time of repeal ; M and that, where a statutory remedy for a right created by the same statute is repealed, but the repealing statute gives a substantially similar remedy, the right may be enforced in accordance with the method prescribed by the later act. 63 § 483. [Even in the case of statutes falling, strictly or in a general sense, under the head of penal laws, the intention of the Legislature has been permitted to prevail over the rigid application of the rule. As regards criminal statutes, the rule that the repeal of the statute under which a prisoner 61 Hickory Tree Road, supra ; and see Uwchlan Tp. Road, supra. 62 Danforth v. Smith, 23 Vt. 247. 63 Knoup v. Bank, 1 Ohio St. 603 ; and see McMullen v. Guest, 6 Tex. 27.1, also Nash v. White's B'k, 37 Hun ("N. Y.) 57. In the latter ease, an act of 1870 author- ized the recovery of double the amount of usurious interest taken by banks in excess of seven per cint. Aii act passed in 1880 changed this lawful rate of interest to six per cent. An action had been begun in 1873. and was tried for the third time in 1884. It was held that the act of 1880 did not take away the plaint ill's right to recover the penalties of the act of 1870. It was said that the act of 1880 did not repeal the act of 1870 as a whole, nor repeal and re-enact it ; its provisions and effect were prospective only : the right to " re- cover back twice the amount of the interest thus paid " in excess of legal interest remained undisturbed by the act of 1880, and was still a part of the act of 1870, which, as amended, still declared the right to sue and recover. " This right thus expressed covers tw r o periods, so to speak: one, when the legal rate of interest was seven, and the other later, when it is six per cent, per annum, as the boundary of profit to banking associations in the dis- count of commercial paper." Knox v. Baldwin, 80 N. Y. 610, is dis- tinguished on the grounds that there the amendment in question was "so as to read as follows.'' (See ante, s~ 1 f»t> ; ) and distinctly did away with the original pro- vision on which the action was founded, and that the action was beguu alter the amendment had taken effect. REPEAL. [§ 4S4 is being prosecuted requires his discharge, is, said to be founded upon a presumption of legislative pardon.* 4 Pro- ceeding upon such a basis, the rule could, of course, not apply where there is no room for such a presumption." Thus, where an act was passed providing a new system for the granting of licenses Tor, and regulating, with new punishments, the sale of liquors, but postponing until a cer- tain date the going into effect of the new law, by permitting licenses to be issued under the old law up to that date, but not beyond, it was held, that, the old law remained in force as to such licenses during their lives." The presumption that a statute was designed to operate prospectively, both as an enactment and as a repeal, was made the ground of a decision that an act consolidating the tax-laws of a state, and throughout making its provisions "hereafter" applicable, did not affect settlements made before its passage but remaining uncollected ; 67 whilst an obvious limitation to its proper scope and purpose required the construction whereby a statute repealing an act authorizing the levying of a tax and imposing a penalty for failure to pay the same, was held to forbid the collection of the penalties, but not to invalidate the assessments so as to relieve tax-payers from the obligation to pay the tax. 68 ' § 484. Effect of Savings in Penal Acts.— [Subject to these exceptional considerations, and within the reasonable limits pointed out, it may be laid down as a general rule that the only way in which, in any of the cases referred to, the power to perfect a right or proceeding can survive the repeal of the act creating or authorizing it, is by express reservation 64 See State v. Brewer, 22 La. see U. S. v. Barr, 4 Sawyer, 254 An. 273 ; Governor v. Howard, 1 (Rev. St., § 13); and that an indict- Murph. (N. C.) 4(55. incut found under an act repealed 05 See State v. Brewer, supra. is unaffected by the repeal in Iowa * Sanders v. Com'th, 20 W. N. and Arkansas, see State v. Schaffer, C. (Pa.) 220. Indictments found 21 Iowa. 486 ; McCuen v. Slate, 19> before the going into effect of the Ark. 634. Kentucky code, were held triable u: Pacif. & Atlant. Tel. Co. v. under it : Laughlin v. Com'th, 13 Com'th. (Hi I 'a. St. TO. A nit see Bush (Ky.) 261. See, also, that Files v. Fuller, 44 Ark. 27:;. an offence committed before the w Belvidere v. R. R. Co., 34 N. adoption of certain revisions may J. Fj. 193. See Com'th v. Standard: be inquired into and prosecuted as Oil Co., 101 Pa. St. 119, ante, j if they never had been adopted : 479. People v. Sloan. 2 Utah, 326 ; and §4 4] REPEAL. 689 in the act of repeal." The rule of construction applicable to such clauses has already been examined. 70 ] x\n enactment that offenders should be prosecuted and punished for past offences, as if the Act against which they had offended had not been repealed, was held to create no fresh power to punish, but only to preserve that which before existed ; and not to authorize punishment after the Act which created the offence had ceased to exist (a). [But a savins; of "all rights of suit or prosecution under any prior act, on account of the doing or committing of any act hereby prohibited," was held to embrace offences committed previously to the passage of the repealing act under a previous law repealed by it." A saving clause in an amendment that the amended law shall not apply to trials for offences committed before its passage continues the old law as to those offences. 72 A saving of " pending prosecutions and offences theretofore committed," in an act which took effect September 19, 1881, saved a prosecution for a crime committed August 15, 1SS1, though the indictment was not found until September 22, 1881. " But a saving of any prosecution pending at the date of the passage of the repealing law does not apply to a case where the prosecution is closed, and judgment and sentence have been pronounced, but the day for its execution not fixed. 74 And obviously, where, in 1840, a person committed what, under the act of 1839, then in force, was murder; and in 1843 the act of 1839 was repealed with a saving as to crimes already committed under it; and in 1851 the act of 1843 was repealed by the adoption of a code which saved the right to punish offences against any statute repealed by it, there could be no conviction or punishment for the offence com- mitted against the act of 1839, because the code did not repeal that act. 75 ] 69 Smith v. Banker, 3 How. Pr. « Sanders v. State, 77 Ind. 227. (N. Y.) 142; Governor v. Howard, 74 Aaron v. State, 40 Aia. 307. 1 Murph. (X. C.)4G5; The Irresis- ' 5 Jones v. Slate, 1 Iowa, 395. tible, 7 Wheat. 551. Of course, the right to punish an 10 Ante, £ 186. offence against u repealed statute. (a) The Irresistible, 7 Wheat, being reserved, fails with tliL' repeal 551. Comp. R. v. Smith, 1 L. & of the reserving act: Ibid. As (J 131, ) Linton v. Blakeney Co-op. "a set of quasi-legislative by laws," Soc, '■', EI. A: C. 853 34 L. J. 211 which, left unchanged b) sneer. Dean v. Mcllard, 15 C. B. N. sive Legislatures, arc virtually S. 19, 32 L. J. -"- ; '- > . re-enacted and continued by tbem : : " Beatty v. People, :'.si;. 481. 6 - Times Tub. Co. v. Ladomus, '9 Washburn v. Franklin, 35 5 W. K 0. (Pa.) 33. Barb. (N. V.) 599; and see Kimbro 83 White v. White, 2 Mete. (Ky.) v. Colo-aic, r, Blatchf. 229. is:,. 80 B'k for Savings v. Collector, 3 84 Brotherton v. Brotherton, 41 Wall. 495. Iowa, 112. And see § 285 81 Gilleland v. Schuyler, 9 Kan. G92 REPEAL. [§488 only to the extent of furnishing the right of action or prose- cution, not the practice or mode of procedure ; 85 so, that r where a statute repealed another under which an indictment had been found, saving, however, the right to proceed for any past violation of the repealed statute, the manner of ap- plying J'or a change of venue in the case, was, after the re- pealing act took effect, held governed by its provisions. 8 "' And even a saving of rights accrued or established, and of proceedings, suits or prosecutions commenced before the repealing act shall take effect, but omitting to provide that such suits, etc., shall proceed according to the law under which they were commenced, was held not to protect the same against the effect of the act as to procedure. 87 § 488. Effect of Repeal on Contracts in Violation of Statute Repealed. — If a contract was illegal when it was entered into, and the statute which made it so is afterwards repealed, the repeal will not give validity to the contract, unless it appears that the repealing enactment was intended to have a retrospective operation, and thus to vary the relation of the parties to each other (a). [And conversely, an agreement being legal when entered into, but by a subsequent statute rendered illegal, acts' done under it while it was legal,, remain legal. 88 ] Farmer v. People, 77 III. 322. 88 Ibid.; and see Laughlin v. Com'th. 13 Bush (Ivy.) 2(51. Bui see Dobbins v. Bank. 112 111. 553, where, existing rights under a repealed statute being saved by the repealing act, it was held that the earlier net applied to suits pending at the time of the passage of the later, — Scott, Walker and Dickey, JJ., diss. 87 People v. Livingstone, 6 Wind. ( X. Y.) 526. See this case, ante, ? 290. The New Jersey Revis- ion, p. 1120, provides, that, where no new remedy lias been given for the enforcement of a right accrued under a statute that is repealed, the old remedy remains; and this is said to be the case where the repeal is by force of a constitutional pro- vision : Wilson v. Herbert, 41 N. • I. L. 454 And see, as to saving effeel of ;-' 1, Kan. Gen. St. 998, in civil and criminal cases: State v. Boyle, 10 Kan. 113 ; State v. Craw- ford, 11 Id. 32. (a) Jaques v. Withy, 1 II. Bl. 05 ; Hitchcock v. Way. (i A. & E. ill:'.. Comp. Hodgkinson v. Wyatt, 4 Q. B. 749: [Milne v. Iluber, 3 McLean, 212; Decell v. LewenthaL 57 Miss. 331 ; Anding v. Levy, Id. 51 ; Roby v. West, 4 X. II. 285 ; Banshorv. Mansel, 47 Mr. 58. But see Centra! B'k v. Empire Stone Co., 26 Barb. (N. Y.) 23, where the repealed act was merely a measure of public policy. A contract being illegal by reason of a penalty imposed by law upon the ad contracted for, is not ren- dered legal, as bet ween the parties, by a remission by the government of the penalty : Petrel Guano Co. v. Jaruet te, 25 Fed. Rep. G75.] ^ Bennett v. Woolfolk, 15 Ga„ 213. See ante, §402. f § 489, 490] repeal. 693 § 489. Time when Repeal Takes Effect. — The 13 & 14 Vict. e. 21, s. 6, declares that when any Act repeals another in whole or part, and substitutes some provision or provisions in lieu of the provision or provisions repealed, the latter remain in force until the substituted provision or provisions come into operation by force of the last-made Act. This provision is only declaratory of the common law rule (a). [And the rule is the same, though the repealing clause use the present tense ; 89 for an act speaks as of the time of its going into effect ; 90 so that i4 heretofore," or " hereafter," refers to the date when the act goes into effect, not the time of its final passage. 01 On the other hand,] if a temporary Act be continued by a subsequent one, or an expired Act be revived by a later one, all infringements of the provisions contained in it are breaches of it rather than of the renewing or reviving statute (b). § 490. Re-enactment not a Repeal in Spite of Express Repealing Clause.— [It seems, indeed, to be the general understanding that the re-enactment of an earlier statute is a continuance, not a repeal of the latter, even though the later act expressly repeals the earlier. The mere re-enactment of an existing law, in the same or substantially the same terms, without words of repeal, and in the absence of conflict, or an intention to supersede, does not, of course, necessarily repeal the old law. 92 But even a repealing act re-enacting the provisions (a) Per cur. in Butcher v. Hen- 435, as also the word "now": derson, L. R. 3 Q, B. 338. [Stand- Clark v. Lord, 20 Kan. 390, 39G. iug v. Alford, 1 Pick. (Mass.) 33 ; Consequently, where statutes were McArthur v. Franklin, 10 Ohio held to take effect on the first day St. 193 ; Moore v. Houston, 3 S. & of the session, an act passed at a R. (Pa.) 169, 185. And see P. & A. session beginning in November, Tel. Co. v. Com'th, ante, § 483.] 1827, to take effect on January 15, 89 Lyner v. State, 8 Ind. 490. "next," but not approved until 90 Rice v. Ruddiman, 10 Mich. January 7, 1828. was held never- 125. It has been said that a sav- theless to go into operation on ing clause in a repealing act relates January 15, 1828: Weeks v. to the time of its passage, not of Weeks, 5 Ired. Eq. (N. C.) 111. ils taking effect, though the act Comp. Fosdick v. Pcrrysburg, 14 take effect from the first moment Ohio St. 472, ante, § 33. of the day: Be Ankrirn, 3 McLean, (b) R. v. Morgan, 2 Stra. 10li6 ; 285 ; Re 'Richardson, 2 Story, 571. Shipman v. Henbest, 4 T. R. 109 ; But see contra, as to an act saving Dinghy v. Moor, Cro. Eliz. 750. rights at the date of its passage : 9S See Alexander v. State, 9 Ind Rogers v. Vass, Iowa, 405. 3:57 : Cordell v. Slate. $2 Id. 1; 91 Charless v. Lamberson, 1 Iowa, Kessler v. Smith, GO N C. 151; 694 REPEAL. [§ 491 of the repealed statute, in the same words, is construed to continue them in force without intermission ; the repealing and re-enacting provisions taking effect at the same time. 03 So, it was held, that, where an act repealing another which provided for the appointment of certain officers, instantly, by the second section, re-enacted the repealed act, the repeal was rendered inoperative, the former law left in force, and the officers appointed under the same, whose terms of office had not expired, remained in office. 01 So the repeal of a general corporation law by a statute substantially re-enacting and extending its provisions, does not terminate the existence of corporations formed under it, but is to be regarded as a continuance, with modifications, of the old law. 96 The prin- ciple has been applied also to a revision which repealed the acts collated and consolidated, but immediately, in its own provisions, re-enacted them literally or in substance, so that there was never a moment when the repealed acts were not practically in force. 06 So, the repeal and re-enactment, in a revision of laws, of a statutory provision authorizing a town to make a certain by-law was held not to affect the validity of the by-law. 07 And it has been applied to criminal statutes, so as to permit a conviction for an offence against the re- enacted old law, 98 even where the re-enacting law undertook to repeal it ;' J9 the re-enactment being construed a continu- ance. § 491. Limits of this Rule. — [But the effect seems to be different where a period of time has elapsed between the repeal and the re-enactment. Thus, an act passed in 1873 nor necessarily the re-enactment Joliffe, 2 Wall. 450, 45G ; and see of a former section of a statute in ante, i$ 194. a later section : Martindale v. Mar- 96 Middleton v. R. R. Co.. 26 N. tindale, 10 Ind. 566, cit. Alexander J. Eq. 200: Scbeftels v. Tabert, v. State, supra ; Cheezem v. 46 Wis. 439 ; and sec Ballin v. State, 2 Id. 149. Ferst, 55 Ga. 54(5, as to U. S. Rev. 93 Fullerton v. Spring, 3 Wis. Stat. m ; Laude v. Ry. Co., 33 Id. 97 Lisbon v. Clarke, 18 N. II. 640. 234. Similarly it was held thai an "' Suite v. Baldwin, 45 Conn, ordinance passed by a city under a 134. certain section of its charter was I'mled Hebrew Benev. Ass'n not affected by a repeal of that v. Benshimol, L30 Mass. 325, 327, section : Chamberlain v. Evans- cit. Wright v. Oakley, 5 Met. ville. 77 End. 542. (Mass.) 400, 40(5 ; Steaiiish. Co. v. ™ Stale v. Gumber, :57 Wis. 298" '"■* Stale v. Wish, 15 Neb. 448.. § 492] REPEAL. 695 required railroad companies to fence when ordered by com- missioners. A company was ordered to fence. Theact was repealed in 1874. Upon its re-enactment, in L875, it was held that the duty to fence under the order terminated with the repeal, and was not revived by the re-enactment.' 00 "In this respeet it stood as if no duly to fence bad previously existed ; and that duty could only come into existence by the combined force of the law of L875, and of an order under and in accordance with it." 101 And even where the re-enact- ment is simultaneous with the repeal, and in the same terms with the previous law, a repeal of the latter will be held to take place, (in the absence of express repealing words, and in the face of statutory rule of construction requiring provisions of any statute, so far as they are the same as those of any prior enactment, to be construed as a continuance of such provision and not as an amendment, unless such construction would be inconsistent with the manifest intention of the Legislature, etc.,) where the former statute has wholly accom- plished its purpose and exhausted its force. 102 ] § 492. Effect of Repeal of Act Incorporated by Reference in Another. — Where the provisions of a statute are incorporated, by reference, in another ; [where one statute refers to another for the powers given or rules of procedure prescribed by the former, the statute or provision referred to or incorpor- ated becomes a part of the referring or incorporating statute ; 103 and if] the earlier statute is afterwards repealed, the provisions so incorporated, [the powers given, or rules of procedure prescribed by the incorporated statute,] obviously continue in force, so far as they form part of the second enactment (a). Thus, when the 32 & 33 Vict. c. 27, enacted 100 Kane v. R. R. Co., 49 Conn. [Spring, etc., Works v. San Fran- 139. cisco, 22 Cal. 434 ; Sika v. H. 11. 101 lb., at pp. 140, 141. Co., 21 Wis. 370. So, a local ami 102 Emporia v. Norton, 16 Kan. special act, which, by reference. 230. e. g., an act authorizing an adopts provisions relating to pro- appropriation, validating prior cedure from an existing general dcl'eclive acknowledgments, or law, is not necessarily abrogated irregular tax proceedings : 11>. or affected by the subsequent i«3 Turney v. Wilton, 86 111. 385; repeal of the latter: Schwenke v. Nunes v. Wcllisch, 12 Bush (Ky.) R. R. Co., 7 Col. 512. In New 303. York il was enacted by Laws 1880, (a) R. v. Stock, 8 A. & E. 405; ch. 245, that "the repeal of any R. v. Merionethshire, Q. B. 343. provision of the existing laws 696 REPEAL. [§ 493 that certain provisions as to appeals to Quarter Sessions comprised in the I) Geo. 4, c. 61, should have effect respecting the grant of certificates under the new Aet, and the 35 & 36 Vict. c. 94, repealed the Act of Geo. 4. it was held that those provisions remained in full force, so far as they formed part of the 32 & 33 Yict. (a). The 9 Geo. 4, c. 40, s. 54, empowered justices of the county where a prisoner was detained in custody, who had been acquitted of felony on the ground of insanity, to determine his settlement, and to order his parish to pay such a sum as a Secretary of State should direct, for his maintenance ; and the Act contained also provisions with reference to appeals from such orders. The 3 & 4 Yict. c. 54, s. 7, after reciting the above section, repealed so much of it as related to the Secretary of State, and enacted that the justices should order the payment, of such sum as they should, themselves, direct. Five years later, the Act of Geo. 4 was totally repealed. It was held that the justices had authority to make the order under the Act of 3 & 4 Yict. (b), and that perhaps even the right of appeal had been impliedly preserved (c). § 493. [But, when the incorporating act does not in terms declare that the mode of procedure prescribed by another act, not specifically referred to, but being then the only one established by law and incorporated by the general reference "the same as" in the case provided for by the earlier act, it is said to be intended "as a rule for future conduct," a rule " always to be found, when it is needed, by reference to the law . . existing at the time when the rule is in- voked." 104 And similarly in the case of a statute which pro- hibited contests of speed of animals, etc., " excepting such as are by special laws for that purpose expressly allowed," it, was which has been amended by a (•') R. v. Smith, L. R. 8 Q. B. subsequent provision of those laws, 146. Comp. Bird v. Adcock, 47 not expressly repealed by this L. J. M. C. 123. act, does not affect the subsequent (b) R. v. Stepney, L. R. 9 Q. B. provision." It was held, in Wead 383. v. Oantwell (N. Y.), 11 Centr. (c) Per Blackburn, J., lb. See Rep. 308, that this enactment had R. v. Lewes, I,. 11. 10 Q. B. 579. no effect upon the rule as to repeal [See ante, § 233.] by implication by a iaier statute m Kugler's App. . 55 Pa. St. 123, covering the whole subject matter. 125. See infra, note 10*. Comp. IS 191, 201.] § 491J REPEAL. 697 held that these might include laws passed subsequently to that act. 100 It may be added hero, that it has been declared that a reference statute embraces only the general, not the par- ticular powers granted by the statute referred to ; 106 that a term referred to must be understood in its primary sense, as expressly defined, and not in an assimilated interpreta- tion, especially where such express meaning will accomplish the full design of the framers ; 107 but that, on the other hand, where the provisions of a statute passed with special reference to a particular subject are, by another statute, in general terms, applied to another and in its nature essenti- ally different subject, the terms so incorporated are to be construed in such maimer as to be appropriate to the new -subject-matter, and the adoption extends only to such pro- visions of the original statute as arc applicable and appro- priate to the same. 108 ] § 494. Non-user has not Effect of Repeal. — A law is not re- pealed by becoming obsolete (a). Thus, trial by battle, with its oaths denying resort to enchantment, sorcery, or witch- craft, by which the law of God might be depressed and the law of the devil exalted (h), though the trial by grand assize, introduced in the time of Henry 2, had practically superseded it for centuries, was still in force in 1819 (c). The writ of attaint against jurors for a false verdict was not abolished until 1825 (d). Until 1789, the sentence on women for treason and husband-murder was burnino: alive; though in practice ladies of distinction were usually beheaded, while those of inferior rank were strangled before the fire reached 105 Harris v. White, 81 N. Y. at the time the right to distribution 532. misiht become vested. See ante, 106 Exp. Greene, 29 Ala. 53. §§ 102, 108, 493. 107 Cruger v. Cruger, 5 Barb. (a) White v. Boot, 2 T. R. 274 ; (X. Y.) 225. per Hullock. J., in Tyson v. 10S Jones v. Dexter, 8 Fla. 276. Thomas, McCl. & Y. 127 ■ per An adoption of the provisions of Lord Kenyon in Leigh v. Kent, 3 the "law " on a particular subject T. R, 3G2 ; R. v. Wells, 4 Dowl. is broader and more general than 5G2 ; The India. 33 L. J. P. M. & "act:" lb. In this particular case, A. 193 ; Hibbert v. Purchas, L. R. an act adopting the provisions of 3 P. ('. 650. the law regulating descents as (?>) 2 Hale, P. C. 233; 3 Bl. furnishing the rule for the distri- Coinm. 337. bution of personal property, was (c) 59 Geo. 3, c. 46. Ash ford v. held intended to refer to any law Thornton, 1 B. & A. 405. of descent which might be in force (d) 6 Geo. 4, c. 50, s. 60. 698 REPEAL. [§ 495 them (a). Drawing and quartering was still part of the sentence for that offence until L870. Until 1844, it was an indictable offence to sell corn in the sheaf before it. had been thrashed out and measured (5); an Irish Act (28 Eliz. c. 2), against witchcraft, was still in force in 1821(c); and, as late as IS36, insolvents in Scotland were bound to wear a coat and cap half yellow and half brown (d). Eavesdroppers, or such as listen under walls or windows or the eaves of a house, to hearken after discourse, and thereupon to frame slanderous and mischievous tales, are still liable to fine (. I!. D. 230. any person with any punishment 118 Hamlet v. Taylor, 5 Jones L. for any breach of the Act between § 408] COMMENCEMENT. 70J [In this country, an act takes effect, generally, and where no other time is fixed by constitution, general law, or tin particular statute itself, from the time of its passage. 119 Ami in such case, 120 as well as where it is passed to take effect upon, or from and after, its passage, it is said to he in force the whole of the day upon which it was finally passed. 121 On the other hand, where an act was to take effect "from and after " its passage, the day of passage has been held excluded. 121 ' Or that phrase has been held to give the statute operation at the very moment of its approval, and to permit, in order to determine a right, e. g., to an office, an inquiry into that particular moment. 123 And in general, it has been asserted,, that the fiction that an act goes into effect on the first instant of a day must give way to considerations of justice and con- venience, and the presumption against retroaction ; 124 as where the act imposes penalties, 125 or ousts an established jurisdiction. 126 the expiration of the earlier and the passing of- the later Act : 48 Geo. 3, c. 106. 119 The word "passage" being understood in the sense above indicated : ante, § 490, note 116, and the act, in the interval between its final adoption by the Legislature aud approval by, or passage over the veto of, the executive or the expiration of the time allowed him for its return, having no effect upon transactions occurring dur- ing tliat period: Warlman v. Phil- adelphia, 33 Pa. St. 202; but see contra: Dyer v. State, 1 Meigs (Tenn.) 237. As authority for the statement, in the text, see, among other cases: Matthew v. Zane, 7 Wheat, 164; The Ann, Gall. 62; Johnson v. Merchandize, 2 Paine, Currier, 13 Baukr. Reg. Biss. 208; Salmon v. 1 Hugh. 356 ; lie Wynne, Re Richardson, 2 S. v. Williams, 1 601 ; lie 208; 13 Burgess, Chase Dec. 227 Story, 571 ; U. Paine, 201 ; Goodsell v. Boyuton, 2 111. 555; (also as to Illinois: Hickory v. Ellery, 103 U. S. 423;) Temple v. Havs, 1 Morr. (la.) ; Kennedy v. Palmer, 6 Gray (Mass.) 316; Branch B'k v. Murphy, 8 Ala. 119; Rathbone v. Bradford, 1 Id. 312; Slate v. Click, 2 Id. 26; Taylor v. State. 31 Id. 383; Parkinson v. State, 14 Md. 184; Heard v. Heard, 8 Ga. 380; Smets v. Weathersbee, R. M. Charlt. (Ga.) 537; State v. The Banks, 12 Rich. L. (S. C.) 009; Hill v. State. 5 Lea (Tenn.) 725: Dyer v. State, 1 Meigs (Tenn.) 23*7 (by relation to the "date of its passage); Memphis v. U. S., 97 U. S. 293; Bish., Wr. L., § 28, and cases there cited. '-" See Re Williams, 6 Biss. 233; Re Currier, 13 Id. 208; Me Howes, 21 Vt, 6U>. '-' Arnold v. U. S., 9 Cranch 104; Weed v. Snow, 3 McLean. 2(15; Wood v. Fort, 42 Ala. 641; Re Welman, 20 Vt. 053; Arrow- smith v. Hamering, 39 Ohio St. 57:;; Mallory v. Hiles, 4 Mete. (Ky.) 53; Re Currier, 13 Bankr. Reg. 208. and other cases, supra. '--' King v. Moore, Jeff. (Va.) 9;. aud see Koltenbrock v. Cracraft, 36 Ohio St. 584. See, also, Bassett v. U. S., 2 Ct. of CI. 448, as to " at the date " of passage. 123 People v. Clark. 1 Cal. 406. 124 See Re Richardson, 2 Story, 571 ; The Ann, (Jail. 02; Re Wynne, Char. Dec. 227 ; Re Ankr rim, 3 McLean, 2$5, and cases infra. 126 Salmon v. Burgess, 1 Hugh. 356; atf'd 97 U. S. 381. 128 Kennedy v. Palmer, 6 Gray 702 COMMENCEMENT. [§§ 499, 500 § 499. Postponement of Operation. — [All act may bo passed to take effect not only at a future day certain, 1 '' 7 but also upon the happening of a future contingency." 8 In the former case, the act takes immediate effect on the day fixed ; 1M in the Latter case, where an act directed a vote to be taken "after the present war is over," it was held to go into effect only after the proclamation of the President of the United States declaring the war at an end (Aug. 20, 1S66), and a vote taken before that date was held a nullity. 130 Where an act was passed amending a city charter, but pro- viding that certain sections should not take effect until ap- proved by the corporation, the proviso was held to operate merely as a suspension of the operation of the act, but the act itself was deemed a valid law immediately upon its passage and executive approval. 131 And until the day when an act is to take effect arrives, the law has no force, 132 even as notice to the persons to be affected by it. 133 § 500. Repugnant Acts Passed Same Day. — [Where statutes are held to go into effect at the first moment of the day of their passage, two acts passed on the same day are passed at the same time ; 134 and if repugnant, would, therefore, nullify each other. 13 ' If, however, of two such acts, one is to take effect immediately, and the other upon a future day, both being amendments of a general body of statutes, the act (Mass.) 816. And see The Cotton 131 Clarke v. Rochester, V Barb. Planter. 1 Paine. 2:3 ; The Enter- N. Y.) 446. prise, M. 32, thai acts of congress 13 '- Price v. Hopkin, 13 Mich. imposing penalties are operative 818. Consequently, in a statute to in the various collection districts take effect on a future day, a pro- from receipt of the act or notice vision, e. g., for an election, to take thereof by tin; collector from the place on an earlier day is a nullity : proper department. See, on this People v. Johnson, 6 Cal. 673. subject, as to which no.ruleca-n I38 13 Mich. 318. Where an act be said to be firmly established, passed in 1854, to take effect in 1856, Bish.,Wr. L., §§ 21 31. made an acl punishable.fi person, 121 Sanders v. Com'tb, 20 W. N. who, in L855, did the thin- so pro- C. (Pa.) 226. hiliitcd, could not be punisned Lothrop v. Stedman, 42 under I lie law: Stare v. Bond, 4 i '(.nil. 5s:j ; The Aurora, 7 Cranch, Jones L. (N. C.) 9. 382 1:;1 Harrington v. Harrington, 53 '-"■< Rice v. Ruddiman, 10 Mich. Vt. 649. \-y> ; ante, -' 493. 135 See Stale v. Heidorn, 74 Mo. 130 Conley v. Calhoun Co., 2 W. 410. Com]). Metrop. B'd of Va 117. Health v. Schmades, 10 Abb. Pr. N. S. (N. Y.) 205. § SOI] JBLIC AND PRIVATE ACTS. 703 taking effect last, is an amendment of that body as amended by the one taking effect first. 138 § 501. What Acts are Judicially Noticed. —[One of the matters upon which, though the statute be silent, the Legislature must be understood to have had an intention, is that of the manner in which notice is to be taken by the courts of the passage, tenor and time of taking effect of the enactment. In the case of a public law, which " must be taken to have been passed for the public advantage," 137 it is obvious, and therefore the universal rule, that, in order effectually to serve that purpose, it must be noticed as to all the particulars mentioned, and applied by the courts without being pleaded, proved, or even called to their attention. 13 * On the other hand, no such considerations require the judicial notice of private statutes, which are passed, not for the public advan- tage, but for the benefit of those who obtain their enact- ment. 139 In general, therefore, private statutes are not held to imply a requirement of judicial notice, and the rule is the contrary of that stated as to public acts. 140 In England, 136 Harrington v. Harrington, supra. 181 Altrincham Union v. Cheshire Lines Committee, L. R. 15 Q. B. D. 597, 603. 138 See U. S. v. Harries, 2 Bond, 211 ; People v. Herkimer, 4 Cow. 345 ; Ross v. Reddick, 2 111. 73 ; Pierson v. Baird, 2 Greene (la.) 235 ; Griswold v. Gallop, 22 Conn. •JDS; Horn v. R. R. Co., 38 Wis. 4f.3 ; Berliner v. Waterloo, 14 Id. 378 : Canal Co. v. R. R. Co., 4 Gill & .1. (Md.) 1 ; Hammond v. Inloes, 4 Md. 138 ; State v. Jarrett, 17 hi. 309 ; Div'n of Howard Co., 15 Kan. 194 ; Lane v. Harris, 16 Ga. 217 (together with the facts they recite) ; State v. Bailey, 16 Ind. 46; Heaston v. R. R. Co.. hi. 275 ; People v. Hopt, 3 Utah, 396 ; Bish., Wr. L., § 37, and cases infra. Upon the principle that joint resolutions of the Legislature are to he regarded as of equal dig- nity with formal .statutes : Ssvann v. Buck, 40 Miss. '-'lis. it would seem that a joint resolution of a public character, e. g., imposing a particular duly upon a slate officer, should also be judicially noticed : State v. Delesdenier, 7 Tex. 76. But see Simmons v. Jacobs, 52 Me. 147, where it was said that courts do not ordinarily take notice of the resolves of the 'Legislature, unless produced in evidence, e. g., a resolve making up the pay-roll of the Legislature, which declared that the session commenced on a certain day and ended on another specified day. The court, how- ever, in that case, treated the resolve as recognized. That reso- lutions of municipal councils, at least so far as they require action by the executive in order to he carried into effect, are subject to the same rules and formalities, including liability to veto, as ordinances, see : Sower v. Phila- delphia, 85 Pa. St. 231 ; Kcpner v. Com'th, 40 Id. 124 ; Wain v. Phila- delphia, 99 Id. 330. 139 A II rim-ham Union v. Cheshire Lines Committee, ubi supra. wo Sec Bretz v. New York, 6 Robt. (X. Y ) 325 ; Broad Str. Hotel Co. v. Weaver, 57 Ala. 26 ; Perdicaris v. Bridge Co., 20 N. .1. 70-i PUBLIC AND PRIVATE ACTS. [§ 502 indeed,] every statute passed since 1850 is a public Act and judicially noticed, unless the contrary be provided in the statute (a) ; [and a similar rule exists by virtue of statutory enactment in some of the states of the Union. 1 "] § 502. What are Public Acts. — [The general rule concerning judicial notice being as stated, in respect of public and private statutes, a question frequently arises as to what is and what is not to be deemed a public statute, and as such en- titled to judicial notice. A public statute is said to be such a one as affects the public at large, whether throughout the entire state, or within the limits of a particular locality, 142 and whether its operation is designed to be perpetual, or merely temporary. 143 A private statute, on the other hand, is one that relates to or concerns a particular person by name, 144 or something in which certain individuals or classes of persons are interested in a manner peculiar to themselves, and not common to the entire community. 145 It follows that a statute may be perpetual in its operation, and yet be a private statute; 149 whilst another may be temporary 14 ' and local in its operation, and yet be a public statute, 14 " if, with- L. 367; Black v. Del., etc., Canal m State v. Chambers, 93 N. C. Co., 24 N. J. Eq. 435, 480 ; Alle- 600; Bish., Wr. L., § 42a; and gheny v. Xelson. 25 Pa. St. 3:52 ; cases infra. Handy v. R. R. Co., 1 Phila. (Pa.) 14a People v. Wright, 70 111. 31 ; Com'th v. Co. Comm'rs, 1 388. Pittsb. (Pa.) 249 ; Workingmen's 144 See Montague v. State, 54 B'k v. Converse, 33 La. An. 963 ; Md. 481. Horn v. R. R. Co., 38 Wis. 468 ; 145 State v. Chambers, supra ; Atchison, etc., R. R. Co. v. Black- and see Bish., Wr. L., ubi supra, shire, 10 Kan. 477; Legrand v. I46 People v. Wright, supra. Sidney CoU.. 5 Mutnf. (Va.) 324; l4T Ibid. Hailes v. State, 9 Tex. App. 170 ; m In this sense, the phrases Bish., Wr. L., § 87, and cases "public" and "general," as infra. applied to statutes, (e. g. in a pro- (a) 13 & 14 Vict., c. 21, s. 7. vision that no general law shall be 141 See Div'n of Howard Co., 15 in force until published,) are Kan. 194 ; Collier v. Baptist Soc'y, synonymous : Clark v. Janesville, 8 B. Mon. (Ky.) 68; llalbert v. 1*0 Wis. 136. But they are not so as Skyles, 1 .Marsh (Ky.) 869; Somer- contra-distinguished from "local " ville v. Winbish, 7 Graft. (Va.) or "special." A law may be obnox- 205 ; Hart v. R. R. Co., 6 W. Va. ious to a constitutional prohibition 336. In Somerville v. Winbish, against special or local legislation, supra, it was decided that the; stat- i. e., as not being " general" legis- ute requiring tin; appellate court lation, which, if valid, would be to take judicial notice of private or entitled to judicial notice as a pub- local acts applied in cases decided lie law. See, upon this subject, below before as well as alter the post, § 507, note, and § 521, note, enactment. 502] PUBLIC AND PRIVATE ACTS. 705 in the limits, as to time and territory, of its operation, it applies to and affects all persons, i.e., the public, and not merely certain persons or classes of persons or interests. 148 Of this kind of public statutes are those which prohibit the sale of liquors, generally, or on certain days, in certain counties or parts of the state, 150 or within a designated distance of a certain locality ; 161 establishing a metropolitan sanitary district and punishing violations of its provisions ; 1M relating' to the common schools of a certain section of the state ;'" providing for the laying out and sale of lands belonging to the state ; 1M and pre-eminently, statutes concerning the administration of public justice, in which, though local in their application, or respecting courts of limited jurisdiction, all persons are interested, and by which all may be affected. 165 Such was held to be an act relating to justice's courts in a certain city ; 168 an act requiring suits against a designated municipality to be brought in a particular court exclu- sively ; IM an act conferring on a certain county court jurisdic- tion equal to and concurrent with the circuit court for all sums not exceeding a specified amount ; 158 an act changing the time for the holding of court in a particular county ; 1M and an act providing that all judicial sales in a certain county, except in specified cases, should be made by the sheriff, and prescribing his fees upon sales on foreclosure. 160 An act 149 Burnham v. Acton, 4 Abb. Pr. N. S. (N. Y.) 1 ; 35 How. Pr. 48; Pierce v. Kimball, 9 Gr. (Me.) 54 ; Levy v. State, 6 Ind. 281 ; and cases infra. 150 Ibid.; Van Swartow v. Com'th, 24 Pa, St. 131. A local option law was, in Exp. Lynn, 19 Tex. App. 293, said to be " in one sense " a general law, but, as its operation was necessarily local to tbe counties, etc., that might adopt it, in this sense a special law, with the effect of setting aside and dur- ing its operation repealing all laws and regulations in conflict with it, so that an unexpired license granted under the law previously in force was no defence to a prosecution for violation of the local option law. 151 State v. Chambers, 93 N. C. 600 : in this case 2 miles. 45 152 Burnham v. Acton, 4 Abb. Pr. N. S. (N. Y.) 1 ; 35 How. Piv 48. 153 Bevens v. Baxter, 23 Ark- 387. 154 West v. Blake, 4 BlackL (Ind.) 234. 155 People v. Davis, Gl Barb. (N. Y.) 456, and cases infra. 156 Be Walker, 1 Edw. Sel. Cas. (N. Y.) 575. 157 Bretz v. New York, 6 Robt. (N. Y ) 325 ; Same v. Same, 4 Abb. Pr. N. S. (N. Y.) 258; 35 How. Pr. 130; McLain v. New York, 3 Daly (N. Y.) 32. 15S Meshke v. Van Doren, 16 Wis. 319. 159 Price v. White, 27 Mo. 275. i6o Kerrigan v. Force. 16 N. Y. Supr. Ct. 185. But see State v. Judges of C. P., 21 Ohio St. 1, as to an act regulating the amount ■>! ro6 PCBLIO AND PRIVATE ACTS. [§503 legalizing elections previously held in a county on the ques- tion of issuing bonds in aid of certain railroads, and author- izing townships on or near the line of a particular railroad, to subscribe to its stock and issue bonds therefor, was held a public act, inasmuch as ir, " affects not only the people of the :ounty [referred to] and of many of the townships of all the counties lying on or near the line of the railroad designated, but also all persons to whose hands the bonds issued by the county and township mentioned may come." 101 Again, laws relating to the political subdivisions of the state government are public laws, as acts defining the boundaries of counties ; IM prescribing the limits of counties and towns ; 163 incorporating cities 164 and public corporations generally, 105 and annexing one part of a town to another. 106 So, an act creating a reser- vation, with the fact that the whole of a certain county fell within the limits of the same, was judicially noticed. 107 § 503. What are Private Acts. — [On the other hand, statutes concerning particular persons or the distinctive interests of individuals or classes, peculiar to them and not shared by compensation attached to local offices in a certain county. In Den v. Belmes, :>> X. J. L. *1050 (2 Penn. 000) an act taxing bank stock, enumerating all the banks then in the state, and giving a power of sale in default of payment was held to be clearly a public, not :i private act. And it was also said. p. *1061 (610): "It is true that statutes giving a. new power of jurisdiction, must, in general, he strictly pursued. But there is a still higher rule,— that all ads made pro bono publico, arc to have a liberal construction." i«i Unity v. Burrage, 103 U. S. 1 17, 455, and this irrespectively of the provision declaring the act a public one. See, also. Walnut v. Wade. II 68;}. Comp. Sherman Co. v. Simons, 10!) Id. 7:!."), holding an act authorizing a county to i-iir bonds for the payment of an existing debt a general ad. Bui Luting v. Racine, 1 Hiss. :;i i, us to an act authorizing a city to issue bonds. 162 Ross v. Reddiek. 3 111 7:5. 16:! Stephenson v. Doe, 8 Blackf. (Ind.) 508; and see, Com'th v. Springfield, 7 Mass. 9. 1,11 Lop, r v. St. Louis, 1 Mo. 681; a city charter being a general, in the sense of a. public, law : Clark v. Janesville, supra, note 148. That the courts of a state will take judicial cognizance of the charters and charter powers of municipali- ties established within the same, see: Fauntleroy v. Hannibal, 1 Dill, 1 is ; Slier v. Oskaloosa, 41 Iowa, .853; Case v. Mobile-, 30 Ala. 538; Payne v. Treadwell, 16 Cal. 220; Winooski v. Gokey, 49 Vt. 282; Terry v. Milwaukee, 15 Wis. 490; Stan' v. Sherman, 42 Mo. 210; Prell v. McDonald, 7 Kan. 426; and of the existence of cities whether by charter or by prescrip- tion : Den' v. Helines, supra. Portsmouth Livery Co. v. Watson. 10 .Mass. 91. 166 New Portland v. New Vine- vard, 16 Me. 69. »>i Wright v. Hawkins, 28 Tex. 452,— the Miss. & Pac. R. R. reser- vation. ■§ 503] PUBLIC AND PRIVATE ACTS. 707 the public, 1 * 8 and consequently charters of private corpora- tions,"" 1 and amendments to their charters, are private acts, not, in general, judicially noticed by the courts."* But this rule may be, and in some of the states of the Union is, superseded by statutory rules requiring the judicial notice of acts of incorporation in general; 1 " and it is inapplicable where the corporation is created by a public statute. 113 This cognizance, however, extends only to corporations of the state to which the court belongs, not to foreign corporations ;"* and where a statute required the courts of the county in which the articles of association of a corporation were recorded to take judicial notice of its corporate existence, it was held that this requirement did not extend to the appel- late court. 174 168 Supra, § 502, and cases there cited. 169 j^ or d courts, as a rule, judi- cially notice the existence ot pri- vate corporations under a general law, or the existence, nature or extent of the powers granted them by special charter or other special enactment : see cases in next note. But in Den v. Helmes, supra, it was stated, at p. *1057 (606), that courts will notice the recognition, contained in various acts of the Legislature, of the existence of a private corporation, in that case a bank. 110 See U. S. B'k v. Stearns, 15 Wend. (X. Y.) 314; Portsmouth Livery Co. v. Watson, 10 Mass. 91, 92; Montgomery v. Plank Road Co.. 31 Ala. 76; Drake v. Flewellen, 33 Id. 106; Perry v. R. R. Co., 55 Id. 413 ; Perdicaris v. Bridge Co., 29 N. J. L. 367; Clarion B'k v. Gruber, 87 Pa. St. 46S ; Timlow v. R. R. Co., 99 Id. 284; Mandere v. Bonsiguore, 28 La. An. 415; Butler v. Robinson, 75 Mo. 192; Carrow v. Bridge Co., Phill. L. (N. C.) 118. Nor will the court notice under which of several general statutes any par- ticular private corporation was organized, or whether it has adopted the provisions of some other general act: Danville, etc., Co. v. State, 16 Ind. 456. 111 See Durham v. Daniels, 2 Greene, (la.) 518; State v. Mc- Allister, 24 Me. 139; Bait., etc.. R. R. Co. v. Sherman, 30 Gratt. (Va.) 602. 172 Covingt. Drawbr. Co. v. Shepherd, 20 How. 227. And see Young v. Bank, 4 Cranch, 384, where the act incorporating the Alexandria bank, being printed and bound up with public acts, in a volume purporting to give public acts, was held to be such and entitled to judicial notice. So, in Hall v. Brown, 58 N. II. 93, it was held the court might notice a railway charter published by the state among the public and private acts and resolutions of the Legislature as required by statute. and distributed in conformity with it to the state, including each justice and clerk of the court " for the use of the court." See, also as to statutes establishing, and regulating the business of Banks: Bronson v. Wiman, 10 Bar!). (N. Y.)406; Buell v. Warner. 33 Vt. 570; Davis v. Bank, 01 Ga. 69; Newberry B'k v. R. R. Co., 9 Rich. (S. C.)495; Shaw v. .State, 3 Sueed (Tenn.) 1^6; and see Doug- lass v. Branch B'k, 19 Ala. 659; Terry v. Bank, 66 Ga. 177; Feem- ster V. Ringo, 5 T. B. Mon. (Kv.) 336. 114 Lewis v. B'k of Kentucky, 40 Am. Dee. 469. But see, State v. MeCullough, 3 Nev. 202. 114 Cicero, etc., Drain. Co. v. Craighead, 28 Ind. 274. 708 PUBLIC AND PRIVATE ACTS. [^ 504, 505 § 504:. Private Acts Requiring Judicial Notice. — [Even in the absence of such ;i general statutory direction, however, a private act may become entitled to judicial notice by a legis- lative declaration announcing it to be, or requiring it to be, taken as a public law ; 175 and where an act is so characterized by the Legislature, a supplement or amendment of it neces- sarily becomes a public law also, without any special declara- tion to that effect." 8 Again, an act will become entitled to judicial notice, which otherwise would not be so, where it is expressly recognized 1 " and amended 178 by a public one; or where the act itself, e. g., an act incorporating a bank, con- tains provisions for the forfeiture of penalties to the state,, or the punishment of public offences in relation to it, 179 as, where it makes the larceny of the notes of a bank incorpor- ated by it felony. 1 " Nor is an act amending and extend- ing the provisions of a general law over counties, not before subject to it, a private law. 181 Moreover, a statute, local or private in many of its provisions, may contain a section which is of a public or general character, and to be noticed as such ; 182 and this, although its title indicates that it is a local act. 183 § 505. Construction of Private as Compared with Public Acts. — [The rule as to the construction of private acts, as compared with that of public acts, has been laid down, in a recent case, as follows: "In the case of a public act, you construe it keeping in view the fact that it must be taken to have been passed for the public advantage, and you apply certain fixed canons to its construction. In the case of a private act, which is obtained by persons for their own benefit, you con- strue more strictly provisions which they allege to be in 175 See Butler v. Robinson, 75 18 ° U. S. v. Porte, 1 Crunch C. Mo. L92. Ct. 360. "« Unity v. Barrage, 103 U. S. 181 Third Nat, B'k v. Seneca 447 ; State v. Bergen, 34 N. J. L. Falls, 15 Fed. Rep. 783. 43S ; Sirnhens Co. v. R. R. Co., 33 m Bretz v. New York, 4 Abb. 1,1. 229. Pr. N. S. (X. V.) 258; 35 How. "' Kogers' Case, 2 Greenl. (Me.) Pr. 130 ; McLain v. New York, 3 301; Gordon v. Montgomery, 10 Daly (N. Y.) 32; Allentown v. Ind. 110. Hower. 93 Pa. St, 332, 33(5. 118 Lavalle v. People, 6 111. App. 188 McLain v. New York, supra: 157. of course, in the absence of con- 1,9 Rogers' Case, supra. flicting constitutional provisions. § 505] PUBLIC AND PRIVATE ACTS. 700 their favor, because the persons who obtain a private act ought to take care that it is so worded that that which they desire to obtain for themselves is plainly stated in it. But, when the construction is perfectly clear, there is no difference between the modes of construing a private act and a public act." 184 The statute being plain and unambiguous, whether expressed in general or limited terms, there is no room for construction and no permissible resort to extrinsic facts to arrive at any other meaning, in the case of a private statute, any more than in that of a public one ; 18& " and, however difficult the construction of a private act may be, when once the court has arrived at the true construction, after having subjected it to the strictest criticism, the consequences are pre- cisely the same as in the case of a public act. The moment you have arrived at the meaning of the Legislature, the effect is the same in the one case as in the other." 186 Even where a statute involves the elements of a compact between the state and an individual, its construction must nevertheless proceed upon the principles regulating the construction of statutes, and not upon those applicable exclusively to the construction of contracts, — the contractual features of such an enactment being something apart by themselves and to be differently construed. 187 184 Altrincham Union v. Cheshire 10 Ct. of CI. 559, aff'd : 91 U. S. Lines Committee, L. K. 15 Q. B. 72, holding, p. 91, that the conse- D. 597, 603, per Lord Esber, M. quences to the appellant were not R. And see to same effect as the to be considered. last clause: Bartlett v. Morris, 9 186 Altrincham Union v. Cheshire Port. (Ala.) 266. Lines Committee, nbi supra. 185 Bartlett v. Morris, supra; and 181 Union Pac. R. R. Co. v. U. see Union Pac. R. R. Co. v. U. S., S., supra. Comp. Binghamton Bridge Case, 3 Wall. 51, 74-75. fllO CONSTITUTIONS. [§ 506 CHAPTER XVIII. Analogies and Differences between the Construction of Statutes and that of Constitutions. § .106. General Analogies and Differences between Statutes and Consti- tutions. § 507. Literal Construction. Technical and Popular Meaning. § 509. External Circumstances. History. Debates. § 511. Preamble. § 512. Titles or Captions of Articles, etc. § 513. Schedule. § 514. Context. Bill of Rights. § 517. Superseded and Succeeding Constitutional Provisions. § 518. Expansion and Restriction by Reference to Subject Matter and Object. § 520. Presumption against Unnecessary Change of Law. § 521. Presumption against Evasion. § 522. Presumption against Ousting Jurisdiction. § 523. Presumption against Interference with Federal Constitution. § 524. Presumption against Injustice, Absurdity, etc. § 525. Presumption against Retrospective Operation. § 526. Strict Construction. § 527. Usage, Contemporaneous and Legislative Construction. § 529. Stare Decisis. § 530. Effect of Adoption of Adjudicated Provisions of Former or Other Constitutions. § 531. Change of Language. § 532. Associated Words and Clauses. § 533. Expressio Unius, etc. § 534. Computation of Time. 8 535. Implications and Intendments. § 536. Imperative and Directory Provisions. § 537. Waiver of Constitutional Provisions. Estoppel. § 538. Enactments and Contracts in Violation of Constitutional Provis- ions. §539. Commencement. Self-executing Provisions. § 506. General Analogies and Differences between Statutes and Constitutions. — [The preceding parts of this work have dealt exclusive]) 7 with the construction of statutes. It has not been, and is not. any part of its design to enter upon questions § 50G] CONSTITUTIONS. 711 of constitutional law. Yet rules for the interpretation of con- stitutional provisions are so often, in judicial decisions, bor- rowed from cases of statutory construction, and conversely, that a brief indication of the analogies and differences recog- nized as existing between tin; principles applicable to the one and those applicable to the other seems indispensable, not only to complete the view taken of the interpretation of written laws, but to point out the limits within which the decisions upon the one class of cases may, and beyond which they may not, be invoked as authority upon questions arising in the other elass. In the attempt to do this, the general arrangement of the subject in the foregoing chapters will be followed in the sections of this chapter. [In a general sense, it is undoubtedly true that a constitu- tion is a law, differing from a statute in its paramount force in cases of conflict; 1 and consequently many of the rules applicable in the construction of statutes are necessarily equally so in the construction of constitutional provisions.* But the constitution differs from the statutes of a state not only in being supreme over all of them. " Such instruments deal with larger topics and are couched in broader phrase than legislative acts or private muniments. They do not undertake to define with minute precision in the manner of the latter, and hence their just interpretation is not always reached by the application of similar methods." 3 A constitu- tion, which provides for the future as well as for the pre- sent, 4 k ' is to be interpreted so as to carry out the great prin- ciples of government," 6 and in the accomplishment of this end, the application of arbitrary rules of construction, justifiable and necessary in the interpretation of statutes, which serve a more detailed and ephemeral purpose, is to be resorted to " with hesitation, and only with much circum- spection." 6 1 Daily v. Swope, 47 Miss. 367 ; 607, 620 ; Henshaw v. Foster, 9 Bisli.. Wr. L., §§ 11a, 12, 16, 89, Pick. (Mass.) 312. ;!16. and cases cited; and post, note 12. 5 Com'th v. Clark, 7 Watts & S. 2 Bisli., Wr. L., § 92, and eases (Pa.) 127, 133 ; Morrison v. Bach- there cited ; Potter's Dwarris, 654; ert. 112 Pa. St. 322. 329. Sedgw., 19. 6 CooKv. Const. Lim., 101. And 8 Houseman v. Com'th, 100 Pa. see l^. 73, 75; Story, Const., 55 St. 222, 232, per Green, J. 454. 4 Leonard v. Com'th, 112 Pa. St, 712 ■ >N6TITUTION8. [§507 § 507. Literal Construction. Technical and Populai Meaning. — [Like other instruments, a constitution is entitled to a con- struction, as nearly as may be, in accordance with the intent of its makers, 7 who, in this case, are the people themselves. 8 Whilst, therefore, phrases that have acquired a settled meaning, thoroughly understood, not only in legal parlance, but in common acceptation, are to be given that significance when used in a constitution, 9 — such, e. g., as " due process of 1 Moers v. Reading, 21 Pa. St. 188, 200 ; Hills v. Chicago. 60 111. 80; Hawkins v. Carroll Co., 50 Miss. 735. See Elton v. Geissert, 10 Phila. (Pa.) 330, intra, note 04, as to language, which, upon the grouud of intention, was construed as abolishing an office ; and Car- penter v. People, 8 Col. 116, where, to avoid the exclusion from a provision of a whole class expressly mentioned, the word "such" was rejected. 8 See Hills v. Chicago, supra ; Beardstown v. Virginia, 76 111. 34; Manly v. State, 7 Md. 135; Cooley, Const. Lim., 6S. 9 Comp. Daily v. Swope, 47 Miss. 367, where it is said to be a safe rule to give to terms used in the constitution such meaning and application as they have received from legislative and judicial inter- pretation, except in cases where it is apparent that a more general or restricted sense was intended. Thus, in Williamson v. Lane, 52 Tex. 335, it was held that a con- tested election proceeding was not a " civil case " within the meaning of art. 5, § 6, of the Constitution limiting the appellate jurisdiction of the Supreme Court to such cases ; (see ante, § 74 ;) nor, of course, a "suit, complaint or plea," within art. 5, §8, where, with those words, is coupled the clause, "when the matter in controversy shall be valued at the amount of $500," etc. Nor docs the prohibi- tion of art. 2, § 12, of the Illinois constitution, against imprisonment for " debt," extend to actions for torts, nor to lines or penalties under penal laws, but only to actions upon contracts, express or implied : Kennedy v People (111.). 11 West, Rep. is. (Comp. ante, I 76). In construing prohibitions against, or limitations upon, " local " or " spe cial" legislation, it has been said that " a law is said to be local and special . . . not because of the . . . Constitution, or of any decision under it, but because ii falls within the proper definition of a local law both before and since " the adoption of the constitution : Evans v. Phillippi (Pa.), 9 C'enlr. Hep. 601, 693 ; and, consequently, in that case, as well as in Bitting v. Coni'th (Pa.) Id. 693. it. was held that a statute, general in form, was not to be treated as a local or special one, because its application to some portions of the slate; was prevented by the existence of local laws, enacted before the adoption of the constitution, unre- pealed by the statute, or expressly saved by it. [Comp. State v. Cam- den (N. J.), Id. 497, where a gen- eral law, in terms applying to all cities, was held to repeal a special provision formerly in force as Id one: see Burke v. Jeffries, 20 Iowa, 145 ; People v. West Chester, 40 Hun (N. Y.) 353, ante, § 228 ; because, otherwise, the act would violate the constitutional prohibi- tion of special legislation,- — a design not to be imputed to the Legisla- ture: ante, § 178 ; State v. Intox. Liquors, (Me.) 5 New Engl. Hep. S.V,>; Slump v. Hornback, (.Mo.) S. West. Rep. 356.] And in Mon- tague v. State, .")t Md. 481, an act adding husbands to the class of persons exempt from the operation of the collateral inheritance tax law, and making the exemption applicable to all such claims not actually paid, was held to be a public and general law, and the fact, that the consideration of a particular individual's case proba- 507] CONSTITUTION-,. 715 law," or tlie "law of the land," i. e., the general law, the law that hoars before it condemns, that proceeds upon inquiry, and renders judgment only after trial, 10 or " ex post facto laws,"" or the word " law," which cannot properly include a local regulation, such as a city ordinance, 12 or orders or bly induced the enactment of the law by the Legislature was not permitted to change the character of the act. (See ante, § 31.) Ag;dn. an act amending the charter of a city was held no! to be a local or private law within the; meaning of Wis. Const., an. 4. § 18: Thompson v. Milwaukee, (Wis.) ::i X. West. Rep. 402. (See ante, j< ou_>.) So, as to the 111. Const., an act providing for the assessment and collection of taxes in all incor- porated cities and towns of the state : People v. Wallace, 70 111. 080 ; and see, as to New York, with reference to a similar statute : Eusign v. Barse, (N. Y.) 14 N. East. Rep. 400, — and as to acts relating to the laying out, etc., of streets in cities: Re Lexington Ave., 92 N. Y. G39 ; Re Woolsey, 95 Id. 135. It was, indeed, held in New York, that the exception from its operation of two out of sixty coun- ties in the state, did not render it local : People v. Plank Road Co., 8(3 N. Y. 1. Compare, however, State v. Hudson Co., (N. J.) 9 Centr. Rep. 501, where it was held that the exception of one county rendered the act unconstitutional*; and see, to same effect, Davis v. Clark, 15 W. N. C. (Pa.) 209; Scran ton Sch. Distr. App., 113 Pa. St. 170, 190. 10 Sec Dartmouth College v. Woodward, 4 Wheat. 519 ; Pennoyer v. Neff, 95 U. S. 714; McMillen v. Anderson, Id. 37 ; Pearson v. Yewdall, Id. 294 ; Dav- idson v. New Orleans, 96 Id. 97; Taylor v. Porter, 4 Hill (N. Y.) 1-10 ; Stuart v. Palmer, 74 N. Y. 183 ; Zeigler v. R. R. Co., 58 Ala, 594 ; Crais v. Kline. 65 Pa. St. 399, 413 ; Palairet's App., 67 Id. 479. 485 ; Philadelphia v. Scott, 81 Id. 80 ; Exp. Steinman, 95 Id. 220; State v. Dohertv, 60 Me. 504; State v. Allen, 2 McCord (S. C.) 55 (but see Fox's App., 112 Pa. St. 337) ; South Platte Land Co. v. Buffalo, 7 Neb. 253; Wright v. Cradlebaugh. 3 Xev. 341 ; St. Louis, etc. Ry. Co. v. Williams, (Ark.)5S. West. Rep. 8S3; Cooley, Tax'n, 262 ; Cooley, Const. Lim., 432-439. A proceeding in equity is " due process of law :" McLane v. Leicht, 69 Iowa, 401. 11 Cooley, Const. Lim., 72, 73. See, as to the meaning of the phrase, aute, ^ 279. See State v. Dolan, (Mo.)GS. West. Rep, 366, that an act requiring courts to take judicial notice of the population of cities according to the last enume- ration, is not an ex post facto law. The prohibition against such legis- lation applies only to legislation concerniu" - crimes ; Exp. Sawyer, 124 U. S. 31 L. ed. 402. '- Baldwin v. Philadelphia, 99 Pa. St. 164 : within the meaning of a provision that no " law " shad extend the term of a public officer, or increase or diminish his salary, etc. (Comp. post, note 33.) See Wayne Co. v. Detroit, 17 Mich. 390*; Fennell v. Bay City, 36 Id. 186, — post, § 508 : and comp. Exp. Schmidt, 24 S. C. 363, where it was held that an offence against a city ordinance is not the same as an offence under a statute, nor to be prosecuted by indictment nor tried by jury. A state consti- tution, however, is a "law" with- in the meaning of art. i., sec. x., cl. 1, of the federal constitution forbidding laws impairing the obli- gation of contracts: R. R. Co. v. McClure, 10 Wall. 511; and see Beckman v. Skaggs, 59 Cal. 541. post, £ 523. As to the meaning of "same offence," Fifth Amendment U. S. Const., as requiring the offence to be the same both in law and in fact, see ante, ^ 3NS, U. S. v. Cashiel, 1 Hugh.' 552. In other cases, "same" may mean not the specilic, identical thing, but of a kind or species: Craps v. Brown, 40 Iowa, 487, 493, — as where a contract pro- vided for drawing out of a ven- ture " the same property " the 714 CONSTITUTIONS. [§ 507 agreements of county commissioners," — where a phrase lias both a technical and a popular meaning, the former, which would ordinarily prevail in a statute, will be discarded for the latter in a constitutional provision. 1 ' Indeed, the lan- oruaare of the constitution, owing its whole force to its rati- tication by the people, is always to be taken in its common acceptation, its plain, ordinary, natural, untochnical sense; 16 unless the very nature of the subject indicates, or the context Silfffirests, that it was used fn its technical sense. 16 It must also be presumed that the people who adopted the constitu- tion understood the force and extent of the language used/ 7 and that the language has been employed with sufficient precision to convey the intent. 18 It follows, that, where the words of a constitutional provision, taken in their ordinary sense and in the order of their grammatical arrangement, 1 " embody a definite meaning, which involves no absurdity or conflict with other parts of the same instrument, the mean- ing thus apparent on the face of the provision is the only one that can be presumed to have been intended, and there is no room for construction. 20 It is not allowable in a con- stitution, any more than in a statute, to interpret that which has no need of interpretation. 21 Nor, as will be .seen here- after, can the inconvenience or hardship that may ensue the parties put in : Brockway v. Row- Id. 338 ; Weill v. Kenfield, 54 Cal. ley GG 111. 99. But see Chahoon 111 ; Mauly v. State, 7 Md. 135 ; v. State, 21 Gratt. (Va.) 822, where State v. Mace, 5 Id. 337 ; Green- " similar" jurisdiction was eon- castle Tp. v. Black, o Ind. 557; strued to mean "same" jurisdic- Carpenter v. People, 8 Col. 116 ; ti on Sedgw., 553 ; Cooley, Const. Lim., "Crawford Co. v. Nash. 99 Pa. 71 ; Bish., Wr. L., | 92. St. 253, as to officers appointed by 16 Weill v. Kenfield, supra. them " Henshaw v. Foster, 1) Pick. i4 State v. Mace, 5 Md. 337 ; (Mass.) 312, 31G. Manly v. State. 7 Id. 135; Weill v. 18 Hills v. Chicago, GO 111. 86 ; Kenfield, 54 Cal. 111. Asbetweeu Cooley, Const. Lim., 08. and a meaning acquired under the cases in note 2. jurisprudence of our country and 19 As to the inadmissibility of a that of another, e. g., England, the transposition of clauses in the former, in case of 'difference, is to interpretation of a section of the be preferred: The Huntress, Dav. constitution, see Ogden v. Saun- 82 ders, 12 Wheat. 213. 2G7. 2G8. is Gibbons v. Ogden, 9 Wheal. 20 Newell v. People, 7 N. Y. 9, 1, 188; Hills v. Chicago, 60 111. 97; Hills v. Chicago. GO 111. 86; 86 ; Beardstown v. Virginia, 76 Id. Springfield v. Edwards, 84 Id. :;t • Springfield v. Edwards, 84 Id. G2G ; Cooiey, Const Lim., G8. 71. 626; Corn'th v. Clark, 7 Watts & 21 Beardstown v. Virginia. 76 S. (I'a.) 127; Cronise v. Cronise, 111.34. 54 Pa. St. 255 ; Page v. Allen, 58 § 508] CONSTITUTIONS. 715 enforcement of a provision couched in such unmistakable language, justify its modification by construction ; 22 and no considerations of supposed policy can be regarded in arriving at the meaning : " the whole line of this argument is disposed of by the phrase ' Ita lex scripta est.'" 23 " No accepted canon of construction," eays the Supreme Court of Michigan, " can justify us in adding to the constitution qualifying words of our own, suggested only by outside considerations, which mayor may not have been of weight with the convention in framing, or the people in adopting that instrument." 24 § 508. [A few instances of the application of this principle of constitutional construction ma} 7 not be out of place here, and may serve to illustrate its bearing and effect. A provision of the California constitution, 25 requiring every bill, before becoming a law, to be " read three times," unless, in case of urgency, that requisition be dispensed with by a two-thirds vote of the house, is construed as requiring, according to its plain import, that every bill, before becoming a law, shall be read at length, not only by its title, on three separate days in each house, unless, in the case of urgency, two-thirds of the house where the bill is pending shall, by a vote of yeas and nays, dispense with the provision, either as to the manner of reading, or as to the reading on separate days. 28 A provision of the Michigan constitution, 27 that " all tines assessed and collected in the several counties and townships for any breach of the penal laws shall be exclusively applied to the support of such libraries " as the Legislature is required, 22 See post, § 524. a prohibition against the appoint- 23 "Weill v. Kenfield, 54 Cal. Ill, ment of a senator or representative. 117 ; Hills v. Chicago, supra. to any civil office, during the time 24 Wayne Co. v. Detroit, 17 for which he was elected, forbid Mich. 300, 401. In People v. his election to such an office ; Car- Squire, (N. Y.) 10 Centr. Rep. 437, penter v. People. 8 Col. 110. it was held that art. 3, § 17. N. Y. '•'■' Art. iv, § 15. Const., providing that " No Act S6 "Weill v. Kenfield, supra. See, shall be passed which shall provide on this subject, Cooley, Const. that any existing law, or any part Lim., 1G8, and compare post, thereof, shall be made or deemed a £ 536. But such a provision does part of said act, or which shall not apply to amendments made to enact that any existing law. or any a bill: People v. Wallace, 70 111. part thereof, shall be applicable, 680. Comp. ante, § 101, and post,. except by inserting it in such act," § 534. did not apply to an act purporting S1 Art. xiii, § 12. to amend existing laws. Nor does 716 CONSTITUTIONS. [§ 508 by a preceding clause in the same section, to establish in each township, was held to apply to such penal laws of the state as imposed punishment by fine and imprisonment, 28 and not to the numerous forfeitures and penalties growing out of the breaches of duty that partake of the nature of civil grievance or merely local wrong, and which do not come within the category of criminal conduct. 40 The word "session," in a provision of the New York constitution, authorizing the governor, when the senate was not in session, to till vacancies in certain offices, was held to mean, not a session in its technical sense, but a present acting or being of the senate as a body ; so that the senate was to be deemed not in session, within the meaning of the phrase, and the power referred to as existing in the governor, when the sit- tings were terminated or interrupted by a long adjournment, although, there having been no final adjournment, the ses- sion, strictly speaking, continued. 30 Again, it lias been held that the term ''municipal corporations" was not to be taken to mean quasi-municipal corporations, to the exclusion of municipal corporations generally so known. 81 A provision declaring disqualified from holding office and from exercis- ing, for four years, the right of suffrage, any person, who, while a candidate for office, should violate " any election law " of the state, covers the case of one who, in such cir- cumstances, violates a law regulating primary elections." And in a constitutional prohibition against increasing or di- minishing the salary or " emoluments " of any public officer during his term of office, the latter term was held to include any perquisite, advantage, profit, or gain arising to one from the possession of a public office ; c. (/., where it was the official duty of a sheriff to board prisoners in the county jail, the sum secured to him by law as compensation for this 28 Wayne Co. v. Detroit, supra. 30 People v. Fancher, 50 N. Y. 29 Fennell v. Bay City, 30 Mich. 288. 180. But the penal provisions of a 31 Carpenter v. People, 8 Col. state law are not superseded by an 110, 125. unnecessary ordinance to the came 32 Leonard v. Com'th, 112 Pa effect : Wayne Co. v. Detroit, St. 007. supra. §509] CONSTITUTIONS. 717 service. 33 A provision 84 that each stockholder in a corpora- tion shall be liable, over and above the stock owned by bim and the amount unpaid thereon, to a further sum equal in amount to such stock, refers not only to stock subscribed for by him, but also stock distributed to him as a dividend. 30 The technical fiction that the entire session of a court is held on the first day thereof, does not, in a constitutional pro- vision allowing exceptions to be taken, etc., during the whole of the " sitting," permit the reading of the latter word as sjmonymous with " term ;" but such a provision is to be re- garded merely as extending such right, ordinarily to be exercised at the time the ruling, etc., is made, during the whole remainder of the day's sitting and before adjournment for the day. 36 § 509. External Circumstances. History. Debates. — [It is but a corollary — applicable both to statutes and to constitutions, though perhaps more strongly to the latter — of the principle already stated, that the intent of a provision must be found in the instrument itself ; that no effect can be given to an inten- tion not expressed by its language ; that the question for the interpreter is not what the framers meant, as distinguished from what the language expresses, but simply what is the meaning of the words; 37 that, if they convey a definite meaning, involving no absurdity, no contradiction of other parts of the instrument, that meaning, apparent on the face, is to be adopted ; 38 and that, where the text is plain and un- ambiguous, courts are not at liberty, in putting an interpre- tation upon it, to search for its meaning beyond the instru- 33 Apple v. Crawford Co., 105 Pa. St. 300. Comp. State v. Spencer, 91 Mo. 206; State v. Dillon, 90 Id. 229, post, §519. Under the 24lh Amendment of the Connecticut constitution, forbid- ding the increase of compensation of a public officer, to take effect during his continuance in office, the vote of city councils to pay a joint standing committee for servi- ces rendered, the office of council- man being one without compensa- tion and the services those ordi- narily rendered by such a commit- tee, was held illegal : Garvey v. Hartford, 54 Conn. 440. But con- tinuance in office was, in Smith v. Waterbury, Id. 174, declared to mean continuance under one appointment, not under a reap- pointment. ;l Ohio Const., Art. xii, § 3 35 See Brown v. Hitchcock, 36 Ohio St. GOT; Aultman's App., 98 Pa. St. 505. 30 Costigin v. Bond, 05 Md. 122. 37 Beardstown v. Virginia, 70 111. 34. 38 Hawkins v Carroll Co., 50 Miss. 735. 718 CONSTITUTIONS. [§510 ment itself, 39 or to resort, for that purpose, to extrinsic facts and circumstances. 40 But, as in the case of statutes, this rule extends only so far as the language of a constitutional provision is plain and unambiguous, — though, in the latter case, no ambiguity would arise from the mere feet that a phrase is susceptible of a technical as well as of a more popular meaning, the latter being ordinarily preferred, 41 — and where, understood in that sense, it raises no conflict with other provisions in the same instrument, and gives occasion to no absurd effect. An intention to produce such results cannot, of course, be imputed to the framers of a constitu- tion, or to the people adopting it, 43 any more than to the Legislature in passing a statute. And hence, to avoid them, aids in the construction of constitutional provisions are recognized as permissible, analogous to those allowed in the construction of statutes. § 510. [Thus, it is a sound rule of constitutional as well as statutory construction, that the previous history, the circum- stances surrounding the foundation of a constitution, are to be regarded by the courts, 43 and as part of them, to some extent, the history of the constitution itself, in the course of its preparation at the hands of the convention that framed it. 44 The propriety, indeed, of resorting to the debates in the con- stitutional convention, upon the adoption of a provision under construction, has been denied. 46 "They are of value as showing the views of individual members, and as indicating the reasons for their votes. But they give us no light as to the views of the large majority who did not talk ; much less of the mass of our fellow citizens whose votes at the polls aave that instrument the force of fundamental law.'" 40 It will be observed that such a reference is not strictly analo- gous to a reference to the journals of the Legislature, show- 39 Chesapeake, etc., R. R. Co. v. 43 Kennedy v. Gies, 25 Mich. 83; Miller, 19 YV. Va. 408. Cronise v. Cronise, 54 Pa. St. 255, 40 Sturges v. Crowninshield, 4 261; Cooley, Const. Lim., 80, 81. Wheat. 202, 203; Cooley, Const. See Allegheny Co. v. Gibson, post, Lim.. 68. §511. ^ See ante, §8 507, 508. " See Id. 79-81. 42 Sec Hills v. Chicago. 60 111. 45 Taylor v. Taylor, 10 Minn. 86; Hawkins v. Carroll Co., 50 107. Miss. 735; Sturges v. Crownin- 4ti Com'th v. Ralph, 111 Pa. St shcild, supra. 365, 3S0, per Paxson, J. § 510] CONSTITUTIONS. 719 ing the various steps in the passage of a statute; but rather to a reference to the expression of opinions by individual legislators upon the signification of its enactments, 47 — a mode of construction, which, as to statutes, has been uniformly rejected as intolerable: 48 or perhaps, as, in the adoption of a constitution, the people at large must be regarded as the leg- islators, the relation of the convention preparing it for sub- mission may be still more properly compared to that of a special committee of the Legislature charged with the draft- ing of a statute for its acceptance or rejection, and it would never be deemed legitimate to recur to the debates in the committee room as a source of the interpretation of a stat- ute. 49 Yet this great stretch of principle seems, upon the whole, to be sanctioned by judicial authority, in the interpre- tation of constitutional provisions, the theory being, that, members of the convention having declared that a certain provision was designed to have a certain effect, and no member expressing a different view, the people voted for the constitution in the light of this construction, and therefore adopted it; 50 and the limit of the applicability of the rule being "that the debates are not to be resorted to when there is no room for construction ; 51 but where the meaning, from any cause, is in doubt, the debates may be considered ;" 52 and that even the ascertained under- standing of the convention is not to be permitted to override the more natural and obvious meaning of the words, in which the people adopting the constitution must be supposed to have understood them. 63 Moreover, the circumstances 41 See the dissenting opinion 626, 643. of Gibson, J., in Eakin v. Kaub, M I. e., where the text of a con- 12 Serg. & R. (Pa.) 330, at stitutional provision is not arabig- p. 352 : " A constitution, or a stat- uous : Chesapeake, etc., R. R. Co. ute, is supposed to contain the v. Miller, 19 W. Va. 408. See Pike whole will of the body from which Co. v. Rowland, post. § 528. it emanated ; and I would just as 6i Springfield v. Edwards, ubi soon resort to the debates in the supra. And see Catlin v. Smith, Legislature, for the construction of 2 Serg. & R. (Pa.) ~>07, 272 ; Fv\ s au act of assembly, as to t lie Election, 71 Pa. St. 302, 300 ; Mor- debates in the convention, for the rison v. Bachert, 112 Id. 322, 329 ; construction of the constitution. " Elton v. Geissert, 10 Phila. (Pa.) 48 Ante, §8 30, 31. 330; Cooley, Const. Lim., 70, 80, 49 Ante, ii 32, 68. See, also, and eases there cited. Taylor v. Taylor, 10 Minn. 107, M Cooley. C. L., 80 (cit. State v. infra. Mace, 5 Md. :!:J7 ; .Manly v. State, 60 Springfield v. Edwards, 84 111. 7 Id. 135 ; Hills v. Chicago, 60 111. 720 - .'v-iiii "iio.\s. [§ 511' attending the deliberations of a convention may be sneli as to preclude any consideration of them as throwing a ligiti- mate light upon the interpretation of the constitution that finally emanated from them. Thus it was said in a case in Michigan : " If such debates could ever properly be resorted to as aids in interpretation, it seems quite obvious that such rule could not properly be followed in this case. The con- vention that framed the constitution divided on the first day of the session, forming two organizations, and afterward a joint committee of each reported a constitution that each wing adopted, and which is now the constitution of our state. As well might we resort to the debates in a committee room.'' 54 § 511. Preamble. — [It is evident, that, only in the most general way, can the preamble of a constitution influence the construction of its provisions. As affecting the general character of the instrument, it has, indeed, been resorted to. The weight attached to the phrase " we, the people," in the preamble of the federal constitution, and the arguments based upon it, are a familiar instance of this species of construc- tion." In a recent and elaborately considered case, 68 an argu- ment was drawn, as to the general intent of a new constitu- tion to abrogate previous legislation, from the different object of the first constitution adopted by the state, as shown by its preamble. "The preamble to the constitution [of 1776] recites the rights of the people and the oppressions of the crown, and declares that all allegiance and fealty to the said king and his successors are dissolved and at an end, and all power and authority derived from him, ceased in these colonies. It is not difficult to understand why this principle should be asserted in a constitution that was the outgrowth of a revolution, and of a total severance of all political rela- tions between the colonies and the mother country. In its application to the present times we must not overlook the fact that the conditions are essentially different. The convention of 1873 was not throwing off the yoke of an oppressor and 86 ; Beardstown v. Virginia, 76 Id. 65 S.'C Martin v. Hunter's Lessee, 34, all supra); Pike Co. v. Row- 1 Wheat. 304, 324. land, !)4Pa. St. 238. 249. 6G Allegheny Co. v. Gibson, 90 64 Taylor v. Taylor, 10 Minn. Pa. St. 397. 107. Vj§ 512, 513] CONSTITUTIONS. 721 abrogating laws imposed upon the people bj a parliament not in sympathy with their views, and in whose deliberations they had no voice. The convention was simply the people of th 3 state, in a representative capacity, it is true, sitting in judgment upon their own acts, altering and modifying their own constitution to suit the progress of the age, and chang- ing their own laws where deemed essential to the welfare of the state. To such a body, so constituted, no intention to abrogate all that had gone before can be imputed, unless such intention be clearly expressed." 57 § 512. Titles or Captions of Articles, etc. — [Perhaps, even less importance is to be attributed to the titles of the various subdivisions of a constitution, than to similar features in statutes. 58 It is said that scarcely any significance can be attached to the wording of the captions or titles of the several articles of a constitution. " At most, they do not profess to indicate more than the general character of the articles to which they are prefixed. That they are intended as critical and precise definitions of the subject matter of the articles, or as exercising restraining limitations upon the clear expres- sions therein contained, cannot be pretended." 59 Ilence the fact that a particular article, according to its title, purports to treat of municipal officers, will not preclude an application to such of the provisions of another article referring broadly to "all officers," "officers," '"appointed officers," "officers elected by the people," and " civil officers." 60 § 513. Schedule. — [The schedule of a constitution is a temporary provision for the preparatory machinery necessary to put the principles of the same in motion without disorder or collision. 61 It forms, indeed, a part of the constitution, so far as its temporary purposes go, and to that extent is of 61 Ibid., at p. 406. per Paxson, .1. 69 Horseman v. Com'th, 100 Pa. 68 Ante, §§ 69, 70, to the cases St. 222. 231, per Green, J. cited with which, may be added 60 Ibid. Compare, however,. Conkv. Fed. Life Ass'n. (la.) 35 Pierce v. Com'th, 104 Pa. St. 150, N. West. 500, where an act "relat- 155, and Baldwin v. Philadelphia, ing to insurance and fire insurance 99 Id. 164, 170, where such head- companies," but published under a ings or titles were referred to, in- heading " Relating to Fire Insnr- cidentally, in aid of construction. ance," was held, nevertheless to 61 Com'ih v. Clark, 7 Watts & apply to all insurance companies. S. (Pa.) 127, 133. 46 722 CONSTITUTIONS. [§ 5 1 3 equal authority with the provisions in the body of the instru- ment upon the various departments of the state." But its rises are temporary and auxiliary, and its purpose is not to •control the principles enunciated in the constitution itself, but to carry the whole into effect, without break or inter- val. 63 Thus, a certain section of a constitution declared that "all officers whose election or appointment is not provided for in this constitution, shall be elected or appointed as shall be directed by law/' The election or appointment of canal commissioners was not provided for by the constitution, and was consequently to be provided for by law. A provision in the schedule of the constitution declared that the appoint- ing power should remain as theretofore, and that all officers of the executive department should continue in office until the Legislature should pass the necessary laws, and appointments be made thereunder. Previously to the adoption of the constitution, the canal commissioners were appointed. They were consequently to remain in office until laws for elections and new appointments should be made. But the schedule further directed that the first Legislature, under the new constitution, should pass those laws. This the first Legis- lature failed to do, in consequence of a difference that took place between the senate and the house of representatives. An Act passed by a subsequent Legislature on the subject was assailed as being unconstitutional, it being claimed that the power of the Legislature to pass such an act expired with the first Legislature under the new constitution, and that consequently the right of appointment remained with the executive. It was held, however, upon the principles stated concerning the function of the schedule, that it could not control the principles or construction of the constitution itself; that, therefore, the provision as to the time when the Legislature was to exercise the power given it in the premises, must be deemed merely directory ; and that the legislation referred to was consequently valid and constitutional. 64 Nor 62 Stewart v. Crosby, 15 Tex. 64 Com'th v. Clark, supra. 546. (Comp. Com'th v. Leib, 9 Watts 63 Com'th v. Clark, supra; liar- [Pa.] 200, where it was held that rison v. Courtright, 4 Luz. L. the first Legislature having exer- Reg. (Pa.) '3H7; 7 Leg". Gaz. 400. cised a power of legislation §513] CONSTITUTIONS. 723 can a provision found among the temporary provisions of the schedule be given the effect of supplying permanently an omission in the body of the instrument which may have been designed and cannot be regarded as an oversight. So, where the body of the constitution contained a provision to the effect that certain designated officers should, in certain cases, hold over, and among the provisions of the schedule was found one of similar purport concerning certain other officers not included in the constitutional provision, nor in any part of the constitution permitted to hold over, it was held that the provision in the schedule was shown by its place in the same to be intended as temporary merely, as otherwise it would have been put in the body of the instrument ; that its omission from the latter could not be presumed to be an oversight merely, to be supplied by a transfer of the scheduled provision ; but that the enumeration of the per- sons in the permanent provision was rather to be treated as an exclusion of those designated in the temporary one. 65 conferred upon it by another sec- tion of the same schedule — that of dividing the associate judges of the common pleas courts into classes, in onler that they might be dis- placed in turn, accoiding to sen- iority of commission, in a certain number of years, — a subsequent Legislature could not remodel the classification then established on the ground of mistake; because the power was exhausted by the exe- cution of it and was then gone, and because the later legislation would have come too late for the object, the period for the expira- tion of commissions of the first class having already elapsed before the second attempt at legislation was made.) And see Elton v. Geissert, 10 Phila. (Pa.) 330, where it was held that a provision in the schedule saving existing officers, " unless otherwise provided in this constitution," did not save the office of leather inspector, the con- stitution declaring that "no state office shall be continued or created for the inspection or measuring of any merchandize," etc. Sec infra, note 78.) And where art. 5, § 3, of a constitution gave the Supreme Court original jurisdiction in cer- tain injunctions, mandamus to courts of inferior jurisdiction, and quo warranto to certain state offi- cers, and declared that it should not exercise any other original jurisdiction ; and § 11 of the sched- ule provided that all courts of record and all existing courts, which were not specified in the constitution, (see g 532), should continue in existence, up to a cer- tain date without abridgment of jurisdiction, it was held that the Supreme Court retained jurisdic- tion in mandamus only as to courts of inferior jurisdiction : Com'th v. Hartranft, 77 Pa. St. 154. 65 State v. Taylor, 15 Ohio St. 137. See, however, Com'th v. Pattison, 100 Pa. St. 105, where it was held that § 16 of the schedule of Pa. constitution of 1S74, that "after the expiration of the term of any president judge of any court of common pleas, in com- mission at the adoption of this constitution, the judge of such court, learned in the law and oldest in commission, shall be the presi dent judge thereof," applied no\ only to judges whose commissions were in force at the time of the adoption of the constitution, bill. 124 CONSTITUTIONS. [§ 514 § :>14. Context. Bill of Rights.— [As in the case of a statute, so in that of a constitution, it may be regarded as at least prima facie true that the same, or substantially same, expression is used in the same sense wherever it occurs. 60 It is essential, therefore, in the construction of a constitutional, as well as in that of a statutory provision, that the entire instrument be considered in order to ascertain the sense in which a particular expression is used. 67 Thus, to illustrate bv a few recent instances, a constitutional provision confer, ring upon the governor of the state the right and duty of rillin"- vacancies in elective offices until the next or second succeeding k * general election," as the case might be, was, by comparison of the various articles of the constitution, ascer- tained to mean the general election occurring in the month of November, and not to apply to offices to be rilled at the February election ; 68 and by the same method, a provision that the judge " oldest in commission" should be president judge of a court, was found to refer to the judge oldest in continuous service. 69 More especially does this principle apply where the text of a provision contains expressions calling attention to, and assimilating its own phraseology to that of, other parts of the instrument, So the nature of the residence required by the constitution of Pennsylvania, in order to confer the right of voting, was at least partially determined from a comparison of various other provisions, one of which, evidently contemplating a permanent residence,, by using the phrase " as aforesaid" stamped the others with the like character. 70 But, considering the vast variety of matters treated of in a constitution and the necessary gener- ality of its language, the principle in question is obviously of less force and value in its application to the terms occurring in such an instrument, than in the case of a statute confined to a single subject and purpose. " In common language, also to all judges who might be Moers v. Reading, supra; Cooley, subsequently commissioned^ i. c, C L., 70, 71, and cases there cited, that it was of permanent, and not 68 People v. Callen, 101 Fa. bt. of merely temporary, force. 375. 1An -n> e« Moers v. Reading, 21 Pa. St. « 9 Com'th v. Pattison, 109 Pa. 188 201- Cooley, C. L., 74, cit. St. 1G5, 170. Brien v. Williamson, 8 Miss. 14. '° Fry's Election, 71 Pa. St. 302, Manly v. State, 7 Md. 135; 306. §515] CONSTITUTIONS. . 725 the same word has different and various meanings, and the peculiar sense in which it is used in any sentence is to be determined by the context." 71 "It does not follow, either logically or grammatically, that, because a word is found in one connection in the constitution with a definite sense, there- fore the same sense is to be adopted in every other connection in which it occurs." 72 Great caution is, therefore, to be observed in applying this principle as a rule of constitutional construction. 73 § 515. [A comparison of the whole instrument, however, as in the case of statutes, serves still another and more impor- tant purpose. Similarly to the rule applicable to parts of the latter, 74 though probably not quite to the same extent, 75 a con- struction which raises a conflict between parts of a constitution is inadmissible, when, by any reasonable interpretation, they may be made to harmonize ; 78 and equally inadmissible is a construction which would nullify or disregard any portion, any provision, clause, or word in the instrument. 77 u One part may qualify another so as to restrict its operation, or apply it otherwise than the natural construction would require if it stood by itself; but one part is not to be allowed to defeat another, if by any reasonable construction the two can be made to stand together." 78 A striking application of this principle occurred in the construction of two provisions of the constitution of Pennsylvania, the first of which declares that each house of the Legislature shall judge of the election and qualification of its members; the other, that the trial and determination of contested elections of members of the Legislatures, and other officers named, shall be by the courts of law under general laws, to be enacted by the Legislature. 71 Cherokee Nation v. Georgia, connection in which they occur, .") Pet. 1, 19. Still, in that case, see Potter's Dwarris, G78. the word " foreign" in connection 74 See ante, £$ 35-41. with "slate" and "nation" was 75 See Houseman v. Com'th; held to have the same meaning, to Cantwell v. Owens, infra. the exclusion of Indian tribes. See 7S People v. Wright, 6 Col 92 § 533. u. 208. « Cooley, C. L., 71. ™ Story, Const., § 454. 78 lbid. In case of irreconcilable "Cooley, C. L., 75. For some repugnancy, the provision last in illustrations of the use of words, order of time and local position is in the federal constitution, in dif- said to prevail: Quick v. White- fereut senses, varying with the water Tp., 7 Ind. 570, cited ibid., note 3. 72(5 CONSTITUTIONS. [§516 It was held that the hitter provision did not take from each branch of the Legislature the power given it by the former, but was intended only to provide for a method of procuring and presenting to the same the evidence and information necessary for an intelligent decision, and to secure early action. 79 Whilst, however, it may, in general, be laid down that the intent of a particular provision of a constitution is to be gathered from the whole of it, 80 it is intimated that an argument from the reading of other clauses as to the con- struction of a particular one, is of force only where the meaning of the latter is dubious, or, at least, that such an argument becomes far less persuasive where the meaning of the provision is not doubtful. 8 ' In the latter case, indeed, it is said that the courts have no right to place a different meaning on the words employed, because their literal inter- pretation may happen to be inconsistent with other provisions of the instrument concerning other subjects. 82 § 516. [The Bill of Eights and the Constitution are also to be construed together ; 83 and it has been held, that, if the provisions in the body of the constitution differ from those of the bill of rights, the former must limit and qualify the latter to that extent. 84 19 McNeill's Elect'n, 111 Pa. St. the power or discbarge the duty in 235. See this case, also ante, § 181. the particular instance is as man- *>° District Tp. v. Dubuque, 7 datory as the general prohibition :" Iowa 262; People v. Potter, 47 San Francisco, etc., R. R. Co. v. X, y 375 State B'd of Equalization, (Cal.) 13 ' si Houseman v. Coin'th, 100 Pa. Am. & Eng. R. Cas. 248 (Syll.) St 222 231 See, also, Elton v. Geissert, 10 M Cantwell v. Owens, 14 Md. Phila. (Pa.) 330, 333 ; supra, note 215. Ami it has been held that 64. the rile that an ascertained gen- m Baltimore v. State, 15 Md. eral intent will control a particular 376. And that provisions of the one must yield, where the latter schedule are to be construed with is plainly expressed, in which ease reference to, and in harmony with, effect must be given to it, though provisions of the body of the con- apparently opposed to the general stitution, see ante, § 513, and note intent deduced from other parts: 64. Warren v Shuman, 5 Tex. 441, w Ibid. It would seem, how- cited in Cooley, C. L., 71, note 3. ever, in view of the importance "If in one section, a power is spe- attached by popular sentiment to cifically confeired, or a duty the provisions of a bill of rights, specially enjoined, which m gene- (see as to effect of the want of it in ral terms, is prohibited by Other the federal constitution, 2 Bancr., sections, ' the power or duty Hist. Const., pp. 272, 291), as the specially conferred or enjoined very foundation upon which the constitutes an exception to the gen- organic law is built up, that the eral rule ; the direction to employ reverse of the decision above cited .',' .')17. 518] CONSTITUTIONS. « -7 § 517. Superseded and Succeeding ConstiLutional Provisions. — Statutory provisions, which have expired or been repealed- may, as has been seen/' be looked at as aiding the construc- tion of other provisions and enactments in pari materia. Similarly* clauses that have been eliminated from a constitu- tion by amendment, may be referred to in aid of the inter- pretation of others originally associated with them and remaining in force/ 6 And with equal propriety, the differ- ences between the provisions of a new constitution and those of a previous one, and the construction placed upon the lat- ter when in force, may be regarded by the courts in ascer- taining the purpose and real meaning of the new provis- ions. 87 Conversely, as will hereafter be seen, identity of lan- guage in an old and new constitution may determine the con- struction of the latter in accordance with the construction placed upon the former. 88 [And as a statute may sometimes be best interpreted by reference to a subsequent one, 89 so a restriction in a later or amended constitution upon the exercise of a power assumed to exist under a former one, has been referred to as " a clear recognition of the power, outside of the restriction.'" § 518. Expansion and Restriction by Reference to Subject Matter and Object.— [Inseparable from the history of a constitution and the facts surrounding its creation, and therefore a potent element in the construction of its general terms, is the con- sideration of the objects and purposes to be accomplished, or the mischiefs designed to be remedied or guarded against. 91 In the interpretation of statutes, these reflections may enlarge or restrict the natural and literal significance of the words would be the more obvious and 255, 261. acceptable conclusion. 91 See Cooley, C. L., 79 ; People 85 .\,it,., S§ 48, 49. v. Chautauqua Co., 43 N. Y. 10. 86 Fletcher v. Peck, 6 Crunch, See, as an instance, the doctrine 139 stated and established by decisions 81 See Houseman v. Com'th, 100 collected, in Cooley, C. L. 26, and PaT St. 222, 230 ; Buekalew, Const. Be Fitzpatrick, (R. I.) 5 New Eng. of Pa pp. 45-46, cit. People v. Rep. 675, that the first ten Amend- Blodeett, 13 Mich. 147. See post, ments of the U. S. Constitution are ^ 5;;i to be understood as limitations ss p st, § 530. upon the (lowers of the federal 89 Ante, £ 47. government only, except where the w Cronis'e v. Cronise, 54 Pa. St. statutes are expressly mentioned 728 CONSTITUTIONS. [§518 used," and they are applicable with the same effect in the interpretation of constitutions. 93 Thus, as an example of the extending influence of this rule, the phrase " counties and townships," in the provision of the Michigan constitu- tion already referred to, 94 was held to include all the muni- cipal divisions of the state, the word " townships " being understood in a generic sense ; 95 and under the provision of the Pennsylvania constitution requiring "municipal and other corporations and individuals invested with the privilege of taking private property for public use," to make just com- pensation for property taken, injured, or destroyed, it was held that a borough was so liable in respect of property taken for a highway, although not directly invested with the right of taking private property for that purpose, but doing so by invoking the authority of the courts to complete the act of appropriation. 98 On the other hand, the language, especially of constitutions, is not to be measured by mathe- matical rules, but is, in the nature of things, subject to many implied exceptions and qualifications, 97 arising from the application of general phrases to a variety of subject matters, and from the impracticability of providing, in a general scheme, for every possible detail or contingency that may arise. In illustration of the restrictive effect of a due consideration of the subject matter, purpose and scope of a provision upon the construction of general words occurring in it, may be cited the interpretation of the prohibition placed by the constitution of Tennessee upon the Legislature as to the passage of statutes creating corporations, or increas- ing or diminishing their powers by special law, as inappli cable to municipal corporations, the scope and purpose of the provision having no possible bearing upon such, and the subject matter of the provision and the object of the re- striction having reference to such legislation only as affect- ing individuals and private corporations. 98 So, a provision 92 Ante, ?f§ 73 et seq., 113 et 95 Ibid, seq. »« Hendiick's App., 103 Pa. St. ' People v. Potler, 47 X. Y. 375; 358, 361. and see Moers v. Reading, 21 Pa. 9T Kennedy v. Gies. 25 Mich. 83 St. L88, 200. »« State V. Wilson. 12 I. a. '■" See Wayne Co. v. Detroit, 17 (Tenn.) 246 ; Ballentine v. Pulaski Mich. 390, ante, § 508. 15 Id. 0:33. And sec, for a similar § 510] CONSTITUTIONS. 729 in a constitution declariDg void all charters or grants of special or exclusive privileges under which a bona fide organization and commencement of business should not have taken place at the time of its adoption, was held intended to extinguish avast number of charters obtained for speculative purposes, under which no such organization or commence- ment of busine>s had been effected, but which were being hawked about to the manifest shame of the commonwealth, but never designed to repeal an act of assembly conferring certain powers upon a municipality as to the construction of water works and the supplying of water to its citizens, for the mere reason that it had not been exercised in whole or in part. 09 Again, a provision forbidding the Legislature by any law to create, renew or extend the charter of more than one corporation, was held not to be violated by an act giving building associations, whose charters had expired, the right to sue upon outstanding mortgages; the purpose of the provis- ion being "to prevent improper combinations from obtain- ing privileges detrimental to the public welfare . . not to prevent the Legislature from giving to other corporations, which had fulfilled their general purposes, authority to collect and distribute their remaining assets." 100 ■& § 519. [So, again, the term " inhabitant,'" " resident," " per- son," may have an enlarged or restricted meaning, according to the purpose evinced by the provision in which it occurs. Thus in a clause requiring one, in order to be qualified to serve as a representative, to have been, for one year next preceding his election, an " inhabitant " of the district for which he is chosen, that phrase was held obviously to imply a require- ment of citizenship, but not of citizenship for an entire year ; so that an alien who had been an inhabitant for the required length of time, but naturalized within a year preceding his election, was qualified. 101 Under a provision requiring as a construction of a similar provision, change its name and extend its Moersv. Reading, 21 Pa. St. lsy. road an act renewing or extending 99 Leliiirh Water Co.'s App., 10'3 a special act of incorporation: Pa. St. 515, 528. Atty-Gen. v. Joy, (Mich.) 10 Am. lu0 Cooper v. Oriental S. & L. & Eng. R. Cas. 013, 051. Ass'n, 100 Pa. St. 402, 407. Nor is > 01 Op. of Justices, 122 Mass. an act enabling a railroad company 594. incorporated under a special act to 730 CONSTITUTIONS. [§ 519 condition precedent of the right to vote a residence in the state for a certain length of time, and in the election district or precinct for a prescribed period, the word " residence," it would seem, should be .understood in its strict and technical sense, as implying a permanency of abode; for the object of such a provision clearly is to " prevent frauds by ' colonizing,' >>v bringing voters into the precinct immediately on the eve of election." 1 " And such has accordingly been its con- struction, with the effect of excluding students temporarily sojourning at an institution of learning, from the right to vote in the election district in which they may, at the time, be dwelling. 103 A similar technical construction, required in connection with the subject matter, was placed upon the word " property " in the interpretation of a constitutional provision requiring corporations invested with the right of taking private property, to make just compensation for the same, when it was held that the laving of a pipe-line under a public road in a rural district though a person's land was such a talcing of private property as required compensation to the owner of the fee, — the land, upon the construction of the road, having been subjected only to a servitude as to the surface occupied by the road. 104 Under the Fourteenth Amendment of the federal constitution, forbidding states to deny the equal protection of their laws to any ''person," corporations authorized to do business in the state are held to be included. 105 A sheriff was held not to be a " state officer," within the meaning of a constitutional provision conferring on the Supreme Court jurisdiction of appeals and writs of error, where a state officer was a party. 101 ">» Fry's Elect'n, 71 Pa. St. 302. ,M Sterling's App. , 111 Pa. St. :}0(). 35. As to such appropriation 103 Ibid.; Vanderpoel v. O'Han- under a street in a city, see Ibid., Ion, 53 [owa, 246. But see p. 41 ; Bloomfield, etc., Co. v. contra, wbere the student is eman- Calkins. 62 N. Y. 386. cipated from his father's family I05 Santa Clara Co. v. R. R. Co., and has, at the time, no other 118 U. S. 394; Singer Mann f'g Co. domicile : Putnam v. Johnson, 10 v. Wright, 33 Fed. Rep. 121 ; hut Mass. 488; the requirement of resi- this provision does not forbid a dence hding sometimes held in proper classification of corporations mean simply an absence of present for purposes of state taxation : intention to change: Dale v. Irwin, Ibid. 7s 111. 170; Lincoln v. Hapgood, 11 106 State v. Dillon. 90 Mo. 229 ; [d. 350 ; Wilbraham v. Ludlow, 99 State v. Spencer, 91 Id. 206.. Id. 587. Comp. Cooley, C. L.. Comp. ante, g 508. 754-756. §520] CONSTITUTIONS. 731 § 520. Presumption against Unnecessary Change of Law. — [As, iii statutes, the presumption against an intention to change the existing law beyond the specific purpose of the enacl ment may create numerous apparent exceptions from the general language employed, 107 so, in the construction of a constitu- tional provision, a due regard tor the existing, whether statutory or common, law may produce a similar result. A new constitution, indeed, which does not change the frame of government, is to be regarded, not as a repeal, hut as an amendment of the prior one. 109 "It may he called a new constitution, in the sense in which we call a machine new after it has left the repair shop. Still the fact remains that the constitution is but the prior constitution amended ;" 9 for though the amendments be radical, they are but amendments where a large body of the prior constitution is retained, and the frame of the government, i. e., its form or system, remains substantially the same. 110 In such case, no intention to abrogate previously existing laws in general can be presumed, in the absence of expression to that effect. 111 It is, therefore, a sound rule of constitutional interpretation, that a constitu- tion is to be construed with reference to previous legis- lation ; lia and the bearing of this rule is two-fold. " We are not to presume that the framers of the constitution intended uselessly to repeat an ordinary and well-established rule of law," says the Supreme Court of Pennsylvania in a recent case. 113 "On the other hand, had it been intended to limit their [corporations] power to contract . . or to give a construction to their contracts theretofore unknown to the law, doubtless it would have been so written." In other words, a reference to the existing law ma} r show the meaning of a constitutional provision in one of two ways; either by pointing to something different from that which is already covered by an established rule, upon the principle that a constitutional provision would not be limited to a declara- 101 Ante, §§ 113 et seq. 376 ; and see Daily v. Swope, 17 108 Allcirhenv Co. v. Gibson, 90 Miss. 367; Browns App., Ill Pa. Pa. St. 897, 40.-,, 407. St. 72. 80. 109 Ibid., p. 406. 11; Edmundson v. R. R. Co., Ill '•° Ibid. Pa. Si. 316, 321. per Cordon, J.. 111 Ibid. Sec this case, ante, -i 518. 118 Baltimore v. State, 15 Md. 732 CONSTITUTIONS. [§ 520 tion of a legal principle existing and recognized outside and independently of constitutional sanction ; or by indicating the limits of the intended operation of the provision, upon the principle, that, in the absence of expressions showing a design to depart from the previously established law, an intention so to do will not be unnecessarily presumed, where the provision under construction may, without such result, accomplish its manifest purpose and immediate object : and to the latter rule is to be added its corollary, that an alteration clearly made by the constitution in the previous law will not be extended by construction beyond its terms. 114 Applying the first of these principles, it was held that the provision requiring railroad and other corporations taking property under the rirjht of eminent domain to make or secure in advance just compensation for property taken, injured or destroyed, did not include injuries resulting from carelessness or negligence on the part of their employees ; for for such injuries the law already held them liable. Applying the second to the same provision, it was held that a rail- road company, to which one grants the right to enter upon his land to construct a road, is not liable to him for damages resulting as a consequence of the company's entering and constructing the road ; for the immediate object and purpose of the provision was to impose the duty of compensation upon corporations having the right of eminent domain, and beyond this change in the law, it was not to be presumed that any further alteration of it was intended, such as would have limited the right of such corporations to contract for the building of their works, or changed the legal effect of their contracts; i. e., the application of the provision was confined to such injuries as arose from the exercise of the right of eminent domain. 115 Thus, again, a constitutional provision giving to the auditor's of counties " the exclusive power to prescribe and fix the compensation for all services rendered for, and to adjust all claims against," the same, without appeal, was not construed as changing the well -sec tied rule of our law that a man is not to be a judge o 114 Costigin v. Bond, 65 Md. U5 Edmundson v. R. R. Co., 122. supra. § 520] IMPERATIVE — DIRECTORY. 733 in his own case, 1 '* but was held never intended to confer up ;i board of auditors the exclusive power to fix the compen- sation for the services of its own members, and adjust and allow their own claims; so that a statute fixing their compensation was not a violation of the provision referred to. 1 " So, a provision that one accused of a crime shall have the right to be confronted with the witnesses against him, does not change the rule of evidence permitting proof by record ; so that, on a trial for bigamy, certified transcripts of marriage records remain receivable as evidence of the marriages and the dates thereof. 118 A requirement that all elections by the people shall be by ballot, was held to imp- no restriction upon the legislative power to provide for the ascertainment of the will of persons desiring a territory pro- posed to be annexed to a contiguous municipal corporation,, in some other way than by public election. " : A provision that every railroad company shall have the right with its road to intersect, connect with, or cross, any other railroad, does not change the existing policy and law of the state as to the prevention of railroad crossings at grade, when that is reasonably practicable. 120 A provision securing to a married woman her property as if she were a feme sole was held not to change the common law effect of a conveyance to husband and wife. 121 ISTor does a declaration in the bill of rights that, in all criminal prosecutions, the accused has the right to demand the " nature and cause " of the accusation, abrogate a statutory rule making it sufficient to charge a crime sub- stantially in the language of the act prohibiting and punishing it, — e. g., to charge the crime of murder by an allegation that defendant "did feloniously, willfully and of his malice aforethought, kill and murder the deceased," — without specifying the mode and manner of its commission, — e. o, 266. cedenVe as follows: "I. The 131 Greeneastle Tp. v. Black. 5. constitution of the United States; lnd. 557. 47 738 constitutions. [§ 524: sents a definite and intelligible meaning, the courts have nothing to do with any argument drawn from the conse- quences likely to ensue the acceptation of such meaning, with a view to bending the constitution to the one hide or to the other." Nor, on the other hand, in determining whether a certain power falls within the limits of the consti- tutional grant, whether an act of the Legislature is constitu- tional or not, can the courts look beyond the instrument for the grounds of their decision, of which the general princi- ples of justice, liberty, right orpolitical wisdom, not contained or expressed in the constitution, can be no proper elements. 1 " It is for this reason that it has become a maxim of the law that a statute cannot be declared unconstitutional unless it is plainly shown to offend against some specific provision, or necessarily implied 140 prohibition, and that to doubt is to sus- tain the act. 1 " '• We do not say, however, that, if a clause should be found in a constitution which should appear at first blush to demand a construction leading to monstrous and absurd consequences, it might not be the duty of the court to question and cross-question such clause closely, with a view to discover in it, if possible, some other meaning more consistent with the general purposes ami aims of these in- struments." 1 " Indeed, it has been intimated that the received sense and literal meaning of words, where that sense and meaning involve absurdity, contradiction, injustice or extreme hardship, may, with great caution, be slightly bent to a sense in harmony with the intention of the fram- ers ;" 3 and, as has been seen, the injunction of literal inter- pretation is usually coupled with the condition that it lead to no absurdity. 144 Whatever may be the true limits of this rule, it cannot be doubted that it has, in some cases, been acted upon, and the unreasonableness of an interpretation, 188 Ibid.; Oakley v. A.spinwall, 3 U1 Sharpless v. Philadelphia, N. V. 547; Weill v. Kenfield, 54 supra ; Cooley, C. L., 88, 192-222. Crtl. ill; Wayne Co. v. Detroit, 17 14 - Id. 87-88. Mich. 390; Stoiy, Const., § 426; ,4S Taylor v. Taylor, 10 Minn, iley, < '. L., 87. 107, where, to avoid such results, 1 Sharpless v. Philadelphia, -1 a majority of those actually voting Pa. St. 117; Scowden's A\pp., % was held to be a majority of the Id. 422, electors required by the constitu- S( ■ Cooley, C. I-.. 208; Page tion. v. Allen, 58 Pa. St. 338, 345, 346. 14; Sec ante, §§ 507, 509. § 524] CONSTITUTIONS. 739 if not the sole ground, lias at least been made one of the grounds of its rejection. Under a provision forbidding the enactment thereafter of any law creating, renewing or ex- tending the charter or privileges of more than one corpora- tion, it was said that a literal construction contended for, would have the effect of prohibiting the passage of any law, e. g., permitting two railroads to connect their works, or two counties to make a contract between them, or giving new powers to a whole class of corporations ; and the court added : " We must keep clear of these absurdities, if we can do so, without allowing the constitutional injunction to be disregarded." 148 A provision of a constitution declared that the debt of no municipality should ever exceed seven per cent, of the assessed value of the taxable property therein, nor should any municipality incur any new debt or increase its indebtedness to an amount exceeding two per cent, of such assessed value, without the assent of the electors thereof at a public election. It was held that the proper construc- tion of the provision must be to forbid, except when sanctioned by such an election, the increase of indebtedness to an amount, which, added to the existing indebtedness, would exceed two per cent. " The argument that ignores the aggregate indebtedness and considers the addition only, proves too much. It would nullify the right of electors to vote on the question of increase altogether. By successive steps, each less than two per cent., the city might have the aggregate indebtedness reach seven per cent, without a vote of the electors. Up to that per centum the city would deny the right of the electors to vote on the question of increase, and beyond that per centum the Constitution itself prohibits any increase."" 8 A provision securing to one accused of a crime the right of a public trial, does not, upon the same ground of absurdity, abridge the power of the trial court to expel a boisterous and insubordinate audience, and protect an 145 Moers v. Reading, 21 Pa. St. in the case, left the exact force of 188, 201, per Black, C. J. The it undecided. See aiite, § 518. provision was held, in this case, us Wilkes-Barre's App., 109 Pa. not to apply to political corpora- St. 554, 559; and see Millerstown tions, which, heing the only poiat v. Frederick, 114 Id. 435. 7H» CONSTITUTIONS. [§ o25 in! i midated and embarrassed witness. 147 A provision, requir- ing tin- awarding of contracts to the lowest bidder, on ade- quate security, was construed" 8 as giving a discretion to the officers charged with theduty of acting under it, to determine who wa- the lowest bidder and what was adequate security, in a manner similar to the construction put upon analogous statutory requirements.' 49 The provisions contained in many state constitutions confining the legislation embodied in any one statute to a single snbject, to be expressed in its title, — provisions directed against the practice of log-rolling legisla- tion and smuggling bills, are, upon similar principles, given an .fleet not calculated to embarrass the Legislature by mak- ing laws unnecessarily restrictive in their scope and operation,, and thus multiplying their number. 160 " The general pur- pose of these provisions is accomplished where a law has but one' general object, which is fairly indicated by its title." It " would not only be unreasonable, but would actually render legislation impossible," to give them a strict literal interpretation which would " require every end and means necessary or convenient for the accomplishment of this general object, to be provided for by a separate act relating To that alone." 162 ^ 525. Presumption against Retrospective Operation. — [The genius of our law is opposed to retrospective legislation, and the same presumption that militates against a construction that would give such effect to a statute, requires, asa general rule, and in the absence of a clear expression or necessary implication of a design to the contrary, that constitutional provisions be regarded as intended to have a prospective operation. 11 ' 3 Such a construction is, of course, imperative in >•>" Grimmett v. State, 22 Tex. and of similar requirements con- Anp. 36. cerning amendments to acts 148 People v. Fay, 3 Lans. (N. T.) impliedly amending others by 39g transferring duties, Ibid., note; as '■'• Anii', § 249. to the interpretation of the word 150 Atty.'-Gen. v. Weimer, 59 ''necessary" in a constitution Midi. )580. under similar considerations of '« Cooley C. L., 173. convenience, etc., sec Baltimore v. i" Ibid. ' See as to this subject State, 15 Md. 376, 473. See, also, in detail, Id., 170-183. As to the supra, notes 24, 26. inapplicability of the constitutional 1M Cooley, C. L. 76; Bisk., Wr. requirements concerning repeals L, £ 92a. Comp. Buckner v. to implied repeals, see ante, § 191, Street, 1 Dill. 248, where the rule § 526] CONSTITUTIONS. 741 a state constitution, where the contrary effect would antagon- ize some provision of the federal constitution. 164 On the other hand, as in statutes, so in constitutions, provisions affecting the remedy merely are held to be retroactive. 15 ' Nor is that an objectionable retroaction which simply draws some of the elements for its operation from the past. 168 So, a provision against increasing or diminishing the powers of corporations by special laws, applies as well to corporations in existence at the adoption of the constitution, as to those subsequently created. 167 § 520. strict Construction.— [A constitution is "intended for the benefit of the people, and must receive a liberal construction." 168 " The principle of strict construction would frustrate important provisions in every newly constructed frame of government." 169 Such is the general rule, the key- note, as it were, of all interpretation of constitutional provis- ions, and is in harmony with the principles already discussed. No exception to it can be tolerated on the ground that the provision under discussion contravenes the common law. 164 But a distinction must be drawn, concerning the strictness and liberality of construction, between state constitutions and the federal constitution, the former only being entitled to a liberal, the latter subjected to a strict, construction in respect of the powers recognized in the government by the one, and delegated to it by the other. 161 And, where a provision, against retroaction, so as to divest upon corporations previously exist- vested rights of property was held ing, of a provision, in a new con- inapplicable, concerning slaves stitution, subjecting corporations and slave-contracts, to the inter- invested with the right of eminent pretation of t he thirteenth Amend- domain, to liability for consequen- ment of the U. S. constitution. tial damages resulting from its And see dictum of Denio, J., in exercise. Comp. Pa. R. R. Co. v. Oliver Lee & Co's B'k, 21 N. Y. 9, Lippincott, 116 Pa. St. 472. . 12. as to the inapplicability of the 158 Morrison v. Bachert, 112 Pa. principle to the construction of St. 322, 329. constitutional provisions in gene- 159 Com'th v. Clark, 7 Watts & ral. Comp. also, post, § 540. S. (Pa.) 127, 132. For instances of 154 Beckman v. Skaggs, 59 Cal. what may, in a sense, be termed 541, ante, § 52:!. strict construction, see supra, notes, 155 See Cusic v. Douglas, 3 Kan. 9. 24, 26, 33. 64, § 518 and notes, 123. post, § 526. §§ 520 and 522 and notes. 156 See ante, § 280. ' IC0 Ante, § 520, note. 151 State v. Wilson, 12 Lea 1G1 Weister v. Hade, 52 Pa. St. (Tenn.) 246. And see to similar 474, and cases there reviewed : effect, Pa. R. R. Co. v. Duucan, Cooley, Const. L., 10 ; post, § 535. Ill Pa. St. 352, as to the operation 742 CONSTITUTIONS. [§ 527 general in its language and objects, is followed by a proviso, the rule applicable to such cases occurring in statutes 1 " lias been applied to constitutions, viz.; that the proviso is to be strictly construed, as taking no case out of the provision that does not fairly fall within the terms of the proviso, the latter being understood as carving out of the provision only speci- fied exception, within the words as well as within the reason of the former.' 03 Thus, where a provision of a constitution declared that no person should be excluded as a witness in a civil suit, because of being a party to it, or interested in the issue to be tried, but added, by way of proviso, that, in actions by or against executors, administrators, or guardians, in which judgment might be rendered for or against them, neither " party" should be allowed to testify against the other, as to any transaction with, or statement of, the testator, intestate, or ward, unless called by the opposite party, it was held that one who had an interest in the issue of the suit, but was not •a party to it, was not within the proviso, and hence compe- tent to testify under the general clause. 184 So, a clause in a constitution savinsrand continuing, as if no change had taken place, all "suits, rights, actions, prosecutions, recognizances, contracts, judgments and claims," was held not to preclude a change of remedy in any of these matters. 166 And a similar strict construction was placed upon a constitutional provision conferring upon certain courts the power to relieve persons, under specified conditions and upon proceedings designated therein, from political disabilities declared against them by a previous section of the same article. 1 '* § 527. Usage, Contemporaneous and Legislative Construction. — [A like weight as is attributed by the courts to long usage and authoritative contemporaneous construction in the inter- pretation of statutes, attends the same in the interpretation of constitutional provisions. 107 A practical construction 142 Ante, § 18G. preceding case. ,63 McRae v. Holcomb, 46 Ark. l <*> Cusic v. Douglas, 3 Kan. 123. 30G. Comp. ante, § 525. 164 Ibid. See Potter v. Nat. B'k, 166 State v. Woodson, 41 Mo, 102 U. S. 163, for a decision to the 22,. same effect oi. U. S. Rev. St., »« Cooley, C. L., 81-85 : Bish. y 858, of precisely similar tenor as Wr. L., § 104 ; Sedgw., 552, and the provision referred to in the casep. cited in places referred to. § 527] constitutions. ' 743 placed upon a constitutional provision by the judiciary acting under it, e. g., the practice of the judges of the Supreme Court of the United States to sit as circuit nidges, 188 running' back to the very inception of the federal judicial system, was held to be a "contemporary interpretation of the most forcible nature," and conclusive of the legality of the practice. 169 Of similar weight and dignity is the construction placed by the political departments of the government upon constitutional provisions under which they are charged with acting. 170 And the greatest deference is shown by the courts to the interpretation put upon the constitution by the Legis- lature, in the enactment of laws and other practical applica- tion of constitutional provisions to the legislative business, when that interpretation has had the silent acquiescence of the people, including the legal profession and the judiciary, and especially when injurious results would follow the dis- turbing of it. 171 The deference due to such legislative exposition is said to be all the more signal when the latter is made almost contemporaneously with the establishment of the constitution, and may be supposed to result from the same views of policy and modes of reasoning that prevailed among the framers of the instrument thus expounded. 173 An early assumption and continued exercise by the Legislature of the power to grant divorces was thus held to establish the existence of the power under the constitution then in force ; 173 the frequent passage of laws of a certain description, as conclusive that they did not fall within the prohibition of a particular clause in the constitution ;"* an unbroken practice of passing statutes entitled merely as "supplements" to certain other acts, and giving no further intimation of their contents, as settling the sufficiency of such description under a provision requiring the subject matter of an act to be 168 Stuart v. Laird, 1 Cranch, State, 15 Md. 376 ; Cooley, C. L.. 299. ubi supra. ' s9 Ibid. m People v. Wright, 6 Col, 92, 170 People v. La Salle, 100 111. cit. Sedgw. 412; People v. Green, 495. 2 Wend. (N. Y.) 266, 274. 111 Moers v. Reading, 21 Pa. St. " 3 Cronise v. Cronise, 54 Pa. 188, 201: State Line, etc., R. R. St, 255, 260 (see this case also, Co. 's App., 77 Id. 429; Bingham v. ante, §517); Bingham v. Miller. Miller, 17 Ohio. 445; Johnson v. supra. R. R. Co., 23 111. 207; Howell v. "* Moers v. Reading, supra; State, 71 Ga. 224; Baltimore v. Johnson v. R. R. Co., supra. 71 1 CONSTITUTIONS. [§ 527 expressed in the title ; m the custom of the Legislature to prohibit, in one bill, the sale of liquors in various detached parts of the state, as determining such to' be a compliance with the constitutional requirement of a single subject." 4 Indeed, as it is the duty of the court to uphold a statute as constitutional, if this can possibly be done/" this rule, where the meaning of a constitutional provision, upon the conflict or harmony between which and the statute under construction the validity of the latter depends, is not perfectly clear, may require the court to put a construction upon the constitution, in consonance with the legislation, which may not apparently be the most obvious and natural meaning of the language. 178 Thus, where the constitution of a state declared that the members of its General Assembly should receive such "salary" as should be fixed by law, and no other compen- sation whatever, and an act was passed entitling members of the General Assembly, in addition to a fixed compensation of $1000 for each session not exceeding one hundred days, to a further compensation of $10 per day for the time necessarily spent after the expiration of the hundred days, the court, in order to avoid a conflict between the constitu- tion and the statute, construed the word "salary" in the former as synonymous with " wages." 1,9 115 State Line, etc., R. R. Co's. wherein it was claimed, that the App., supra. election was " undue and illegal," 176 Howell v. State, supra. had no jurisdiction, under thai act, 111 Ante. §§ 178-180. to declare vacant the seat of one 118 Slack v.' Jacob. 8 W. Va. 612. who was duly and regularly elec- 119 Com'ili v. Butler, 99 Pa. St, ted a member of councils, but 535. Where the constitution whose election was contested sim- declared that "the trial and deter- ply upon Ihe ground that be was mination of contested elections disqualified for holding the office : of . . . all public officers . . . Auchenbach v. Scivert, 21 W. municipal or local, shall be by the K C. (Pa.) 319. (Comp. ante, courts of law," under general laws ; §420, n. 21: that, however, a and an act of assembly provided power given to councils to judge that each branch of city councils of the election of its members, • not "shall judge of the qualifications in terms made exclusive, is not of it 3 members, and contested eiec- final so as to oust the common law tions (See note 195, infra) shall be jurisdiction of courts by quo war- determined by the courts of law," ranto, see Ibid.; and so where the it -was held that the court, which, right is given to councils to judge by general law had been given jur- of the "qualifications, elections isdiction in eases of contested elec- and returns" of members: Stale v. us where the petition alleged, Fitzgerald, 4! Mm. 425: hut sec and specified the particulars Com'th v. Leech, 44 Pa St. 332). §§ 528, 529] constitutions. 745 § 528. [It is obvious from the instances cited of the appli- cation of this rule, and is probably universally true, 180 that, wherever usage or legislative practice has been allowed by the courts to dictate the interpretation of a constitutional provision, the meaning of the latter was, at least to some extent, subject to a reasonable doubt. Even the construction adopted and acted upon by the Legislature, whilst always entitled to weight and respectful consideration, is not binding upon the courts ; 181 nor is the fact of a long recognition of a statute, unquestioned and acted upon by the courts, conclusive of its constitutionality. 182 "We think we allow to contem- porary and practical construction its full legitimate force when we suffer it, where it is clear and uniform, to solve in its own favor the doubts which arise on reading the instru- ment to be construed ;" but " acquiescence for no length of time can legalize a clear usurpation of power, where the people have plainly expressed their will in the constitu- tion, and appointed judicial tribunals to enforce it." 183 " Neither the debates [in the constitutional convention], nor supposed views of the people, nor the dictum of this court," says Mr. Justice Trunkey in a recent case, 184 " nor all com- bined, can set aside the plain meaning of a constitutional provision ; but if the sense of a clause be doubtful, the con- temporaneous understanding is material." § 529. Stare Decisis.— [Where, however, an authoritative judicial decision, involving the very point at issue, has declared the interpretation of a constitutional provision, and that interpretation has become the basis of property and contract rights, the rule of stare decisis, applicable in similar cases to the interpretation of statutes, is recognized also in that of constitutions. 186 And even where the former decis- ion is so clearly erroneous as to compel its rejection by a succeeding court, or upon subsequent consideration, in another case, it remains binding upon the interests involved 180 See Cooley, C. L., 85. and technical defects and objec- 181 State Line, etc., R. R. Co's. tions, Cont. Impr. Co. v. Phelps, App., 77 Pa. St. 429, 432. 47 Mich. 299. 182 Baltimore v. State, 15 Md. 183 Cooley, C. L., 85. 576. But see, as to mere formal 1S4 Pike Co. v. Rowland, 94 Pa. 185 See Cooley, C. L., 58-66. St. 238, 249. T4C> CONSTITUTIONS. [§ 530 and adjudicated in the controversy in which it was pro- nounced. 186 It is proper, in this connection, to note a case of somewhat peculiar features, which goes beyond this rule. A liquor law passed in 1855 by the Legislature of Indiana expressly repealed a former one of 1853. For a period of three years, the Supreme Court of the State was divided upon the constitutionality of that part of the act of 1855 which inhibited the retailing of liquors; but finally, under a new organization, declared the entire act of 1855 unconstitu- tional. "" Under such circumstances," it was said, " it would be unjust — would be a violation of all principles of right — to hold that the act of 1853 was all this time in force, and the people incurring its penalties. It would make the law a concealed trap to catch victims ;" and accordingly, it was held that the penalties appointed by the act of 1853 were not incurred by persons acting contrary to its provisions during the three years that the Supreme Court was divided on the question of the validity of the act of 1855. m § 530. Effect of Adoption of Adjudicated Provisions of Former or Other Constitutions. — [As a statute may carry with it the con- struction of its phraseology by adopting language that has acquired a definite and settled meaning, 188 so the incorporation into a new constitution of language and provisions contained in a former one of the same state, which have received, under it, a judicial construction, is regarded as an adoption of the latter; for such language or provisions must be presumed to ,S6 Id. 59-60. all intents and purposes, except i8i lugersoll v. State, 11 lad. for the purpose of being binding 4G4. 465. See the criticism of this in future decisions, an affirmance decision in Sedgw., at p. 338, note of its validity. The act of 1853 s, where it is said to be "directly was, therefore, repealed, until the opposed to all correct theory of final decision adverse to the act of judicial decision and of its 1855 re-instated that of 1853. Upon effects," — "a weak yielding to the the principle above stated (see§ 1, apparent hardship of the case," — note), applicable to statutes — and "worthless as a precedent," — there seems to be no reason why a "(me of the rarest, specimens of different rule should prevail as to judicial absurdity." etc. It is constitutions — acts done before suggested that this language is too such re-instatement should remain stroug. To doubt the constitu- unaffected by it. It is admitted, tiouality of an act is to affirm it : however, that the weight of decis- ante, .' 524. The division of the ion is the other way. See Cooley, court and the consequent failure C. L., 221, but comp. cases cited to declare the act of 1855 uncon- there in note 2. stitutional were, in their clfect, to ,S8 Ante, §§ 3G7, et seq. § 530] CONSTITUTIONS. 747 have been retained with knowledge of the construction placed upon them, and the courts will feel bound to adhere to it. 18 * Thus, where a constitution, repeating a provision of a former one, authorized the Legislature to establish "inferior courts," it was held, following the interpretation of that phrase under the earlier constitution, 190 that it was intended to mean courts whose judgment and decrees were reviewable by an appellate tribunal, whether the latter be a circuit or supreme court, and not necessarily courts whose jurisdiction was inferior or limited within the common law sense of the term. 191 So, where a provision in a new constitution, copied from that of the old one, gave the Legislature the right to tax " mer- chants, peddlers and privileges" the latter word was inter- preted, according to the meaning it had previously acquired, as signifying the exercise of an occupation or business requiring license. 198 And similarly, — and again analogously with the case of statutes, — it has been held, that, when, in the constitution of one state, provisions contained in the constitutions of other states, where they have received a settled judicial or legislative interpretation, are adopted in language identical or synonymous, that interpretation is deemed to be adopted with them. 193 But the adoption of such an interpretation does not, of necessity, adopt its appli- 189 Exp. Roundtree, 51 Ala. 42. grounds seems satisfactorily to ex- 190 See Nugent v. State, 18 Ala. plain, or justify the existence of, 521. the rule under discussion. The 191 Exp. Roundtree, supra. principle of stare decisis applies 192 Jenkins v. Ewin, 8 Heisk. with force only to the decisions (Tenn.) 456 ; Wiltse v. State, Id. of the same court or jurisdiction 544. Cooley, C. L., ubi supra ; and it is 193 Daily v. Swope, 47 Miss. 367; not as important to find out what Walker v. Cincinnati, 21 Ohio St. the framers of a constitution had in 14 ; Leavenworth Co. v. Miller, 7 their minds, as to ascertain what Kan. 47!) ; lies* v. Pegg, 7 Nev. the people intended when they 23; Bish., Wr. L., § 97; Cooley. adopted it. It would certainly be C. L., 64, where this rule seems a violent presumption to attribute to be put upon a principle at least to them a knowledge of, and an akin to that of stare decisis, intention to adopt, the construction In Daily v. Swope, supra, it is put put upon particular provisions of upon the ground that the framers the constitution in the jurisdictions of the constitution must be pre- from which they have been bor- sumed to have been conversant rowed. No doubt, such decisions with, and to have intended to are entitled to respect. But there adopt the construction put upon seems to be no recognized princi- ple provisions transcribed in the pie, in law or in common sense, state, from whose constitution they upon which they can reasonably were borrowed. Neither of these be given a higher force. 748 CONSTITUTIONS. [§ 531 cation. Thus, where the courts of Indiana had determined, that, under a certain provision of the constitution of that state, special or local laws could not be enacted by the Legis- lature where a general law could be made to accomplish the purpose, — whilst that interpretation was adopted by the courts of Nevada upon an incorporation of the same pro- vision in the constitution of the latter state, its application by the Indiana courts to the subject of the removal of a county seat, was not accepted by those of Nevada. 19 * § 531. Change of Language. — [Slight changes in the phrase- ology of a later, as compared with that of an earlier, provis- ion would seem, on account of the necessary generality of language, to be of even less significance in a constitution than in a statute. 195 Thus, in Pennsylvania, the constitution of 1776 provided that " the members of the General Assembly shall receive such wages and mileage for regular and special sessions, as shall be fixed by law ;" the constitution of 1790 changed the word "wages" to "compensation:" 198 "the senators and representatives shall receive a compensation for their services to be ascertained by law ;" the constitution of 1838 left this clause unaltered ; but that of 1874 provided that " the members of the General Assemblv shall receive such salary and mileage for regular and special sessions as shall be fixed by law," and added : " and no other compensa- tion whatever." It was held that the phraseology, throughout, was substantially synonymous ; that the change therein was 194 Mess v. Pegg, supra. in the Pa. Const, .of 1874, of the 195 See ante, fc5§ 378, et seq. provision of the earlier constitution Where the earlier constitution had imposing disqualifications upon made each branch of the Legisla- poisons concerned in duelling, ture the iudge of the "qualifica- with the omission, however, of the tions" of its members, and the clause contained in the earlier 1 : Inter authorized it to judgeof " the " but t he Executive may remit the election and qualifications " of the said offence and all its disqualifica- members, it was said : " While the tions," it is inferred that the dis- addition of the word '•election" qualification pronounced by the may not give to the house any constitution of 1S74 is not subject power which it might not have to removal by executive pardon: exercised under authority to judge Buckalew, Const, of Pa. 233. of the " qualifications "of its mem- 1% "Doubtless, because they bers, it clearly shows an intention thought it a word more befitting not to restrict the legislative the dignity and importance of the power:" Re Cont. Election of office:" Com'th v. Butler, 9'J Pa. McNeill, 111 Pa. St. 235, 241. But St. 535, 541. see note 179, From the adoption § 532] CONSTITUTIONS. 749 not intended to mate any change in the rule ; and that consequently an act fixing the salary of members of the Legislature at $1000 for a session of a hundred days, and allowing an additional compensation of $10 per day for the time necessarily spent in service after the expiration of the hundred days, was not, as to the latter provision, a violation of the constitution. 197 Similarly, the difference? between the phraseology of a saving clause in an amended constitution, providing that all laws not inconsistent therewith, all rights,, actions, etc., should " continue as if the said alterations and amendments had not been made," and that of a sub- sequent new constitution, " as if this constitution had not been adopted," was treated as insignificant in the determin- ation of the question whether or not the latter was, simi- larly to the former, to be regarded as, in fact, a mere amend- ment of the constitution previously in force. 198 § 532. Associated Words and clauses. — [Principles of com- mon sense, applicable to the construction of statutes, are, of course, equally applicable to that of constitutions. Such is the rule embodied in the phrase noscuntur a sociis. 199 Thus,, in a provision that " county officers shall consist of sheriffs, prothonotaries, registers of wills, recorders of deeds, com- missioners, treasurers, surveyors, auditors or controllers, clerks of the courts, district attorneys," etc., it was said that " the fair import of the language 'auditors or controllers,' admits of one construction only. It assumes that each substantially exercises the same powers and performs the same duties." 5 Again, the fact that the words giving the governor the power of filling vacancies in offices were coupled with words indi- cating the necessity of the senate's acting thereon, would show that only vacancies in such offices as require the senate's confirmation were intended. 201 A provision requiring muni- 191 Ibid. See, also, Id., p. 543, those powers and duties are co-ex- asto "salary" and " fixed salary," tensive with the county, by what- occurring in the same constftu- ever name the officer performing- tion. them may be designated, he is a 19S Allegheny Co. v. Gibson, 90 county officer,— e. g., a "city Pa. St. 397, 406. Conip. ante, § controller," in a city co-exteusive 520. with a county of the same name : 199 Ante, § 400. Ibid. 200 Taggart v. Com'th, 102 Pa. 201 Com'th v. Gallen, 101 Pa. St. St. 354, 304. Consequently, when 375. 750 CONSTITUTIONS. [§ 533 cipalities, when incurring indebtedness, to provide for the collection of an annual tax " sufficient to pay the interest and also the principal thereof in thirty years," clearly applies only to an indebtedness which is contracted by the municipality itself, aii'l. for some definite period, is interest-bearing, and not to incidental and ordinary expenses, e. g., for the making and repairing of township roads. 202 And so, where the limitations contained in the first clause of a section clearly related only to the conferring of rights upon individuals, other similar limitations contained in the second clause were held to be manifestly directed to the same object, and not to apply to municipal corporations. 203 Nor would a provision for- bidding the creation, renewal or extension of charters, in a section relating to corporations " with banking or discounting privileges," extend to such as had no such powers, e. g., to municipal corporations, 904 or building associations. 2 " [It may be here observed, also, that, in a provision that '•all courts of record and all existing courts, which are not specified in this constitution, shall continue," etc., the rela- tive clause was held applicable to both the antecedent terms, not only the one immediately preceding it. 206 § 533. Expressio Unius, etc. — [The maxim Expressio unius est exclusio alterins, in the sense in which, as has been seen, 207 it is properly applicable to the construction of statutes, is equally so in the interpretation of constitutional provisions. Thus, where such aprovision gave the right to tax " mer- chants, peddlers and privileges," it was said to be clear that neither of the first two words included that which the third made subject to taxation. 208 It was said, however, by a late 202 Lehigb Coal Co.'s App., 112 of tlie price for present payment. Pa. si. 360, 369. or the usual lending of money by 203 Stale v. "Wilson, 12 Lea building associations, but in the (Tenn.) 246 ; Ballentine v. Pulaski, sense in which it is commonly 15 Id. 633. understood, its banking sense, eon- - See Uoers v. Reading. 21 Pa. fined to dealing in promissory St. 188. notes, bids of exchange, or other Bchober v. S. F. & L. Ass'n, negotiable paper : Schober v. S. 35 Pa. Si. ±>?> ; Cooper v. S. & L. P. & L. Ass'n, supra, at pp. 229, Ass'n, LOO Id. 402. The word 2H0. "discount" was beld to be con- 20G Com'th v. Ilartranft, 77 Pa. Btruable in no strained sense, so, St. 154, 155. See ante, si 414. e. ;/., as lo include the selling of 207 Ante, ?? 397, et seq. property with a remission of part 208 Jenkins v. Ewiu, 8 Ileisk. £ 533] CONSTITUTIONS. 751 -chief justice of Pennsylvania: "The expression of one thing in the constitution, is necessarily the exclusion of things not expressed. This I regard as especially true of constitutional provisions, declaratory in their nature. The remark of Lord Bacon, ' that, as exceptions strengthen the force of a general law, so' enumeration weakens, as to things not enumerated,' expresses a principle of common law applicable to the constitution." 209 Ko doubt, " when the constitution defines the circumstances under which a right may be exercised or a penalty imposed, the specification is an implied prohibition against legislative interference to add to the condition, or to extend the penalty to other cases." 210 .But this proceeds upon the principle, that, where a right is given and the conditions of its exercise are prescribed by a superior power, an inferior one charged with acting under and in accordance with it cannot vary or add to those con- ditions, — a principle obviously alike applicable whether the superior power be the people themselves and the governing rule the constitution, or whether the superior power be the Legislature and the governing rule a statute. 211 Except in the sense above indicated, 212 the maxim referred to can certainly not be deemed to be a principle of universal application in the construction of constitutions, any more than of statutes. 818 (Term.) 456. So, in the case of held incompetent for the Legisla- te Cherokee Nation v. Georgia, 5 ture to add to or change the con- Pet. 1, the definition of the "word stitutionally established qualifica- " foreign," as excluding Indian, tions of an officer. Substantially nations was arrived at (p. 19), at the same principle, and nothing least in part, by reference to the more, was recognized by the decis- provision conferring on Congress ion in Page v. Allen, supra, the power to regulate commerce "with point involved in which scarcely foreign nations, and among the justifies the broad generality of several states, and with the Indian the language quoted. The ques- tribes," in which the particular tion was simply whether the Leg- mention of the latter was held islature could add to the constitu- clearly to exclude them from the tional requirements to quality a more general phrase " foreign person to vole. Compare, how- nations," under which it was ever, Re Thirty-fourth Str. R. R. claimed they were, and admitted Co., 102 N. Y. 343, as to the right they^ might be, comprehended, of the Legislature to prescribe con- See § 514. n. 71. ditions for the construction of 209 p.,g e v Allen, 58 Pa. St. 338, street railroads, additional to those 346, per Thompson, C. J. See, prescribed by the constitution, also, State v. Taylor, 15 Ohio St. 211 See ante, § 351. 137, ante, § 513. 212 See Jenkins v. Ewin, supra. 210 Cooley, C. L., 78, citing, 213 People v. Wright, 6 Col. 92, among other cases, Thomas v. 94. Owens, 4 Md. 189, where it was 752 constitutions. [§§ 53i, 535 Whilst its application in the other sense may, to a limited extent, comport with the general theory of the federal constitution, as a delegation of express powers in which all that is not granted is to be deemed withheld, it is utterly at variance with the theory of state constitutions, which are limitations upon the powers of government, and under which whatever power is not denied is deemed to exist. 214 To give but a single illustration where instances might be multiplied indefinitely : where a constitution authorized and directed the Legislature to provide by law for ''the establish- ment of schools throughout the state, in such manner that the poor may be taught gratis," it was held that the pro- vision did not (as, upon the principle expressio unius, etc. r in its misconceived sense, it undoubtedly would) imply a limitation upon the power of the Legislature to establish a common school system, free to the rich as well as the poor. 316 § 534. Computation of Time.— [The rules for the computation of time under constitutional provisions do not differ, in the various states, from those there recognized as applicable to the same purpose under statutes. Thus, under provisions requiring the governor to return bills presented to him for approval within a certain number of days, it is in general held that the first is to be excluded, and the last to be included in the computation. 210 A " day " in common acceptation, and ordinarily in a constitution, means a civil day of twenty-four ~ u See Sharpless v. Philadel- until Aug. 18, and on Monday, phia, 21 Pa. St. 147, and post, § Aug. 22, neither house was in 535. session. (It is intimated in that '■" 5 Com'th v. Hartman, 17 Pa. case, also, that, where at the time St. 118. of the adoption ot a constitution a 216 pri C e v. "Whitman, 8 Cal. certain method of computing time 412 ; Iron Man. Co. v. Haight, 39 is recognized, it applies to eompu- M. 540 ; People v. Hatch, 33 111. 9; tations under constitutional provis- Corvvin v. Comptr.-Gen., G Rich, ions; but whether a statutory (S. C.) 390. The constitutions of change in the rule would also Illinois and Sou h Carolina except apply to the constitution is Sundays from the computation, doubted : p. G07.) A three days' See, under a Limitation to live limitation upon the right of days, Sundays excepted, Op. of either branch of the Legislature Just., 1") X. il. 607, where it was to adjourn seems to be exclusive held thai a bill sent to the gov- of Sundays: Buckelew, Const. ernor on Wednesday , Aug. 17, and of Pa., p. 52. And see Id., returned with his veto on Wednes- pp. 19">-19G, as to computation of day, Aug. 24. was a valid law, time generally under the Pa. Con- although the bill did not actually stitulion. come into the governor's hands § 535] CONSTITUTIONS. 753 hours, beginning and ending at midnight ;*" or in a provision requiring bills to be presented to the governor " one day previous " to adjournment, a space of at least twenty-four hours." 8 § 535. Implications and Intendments. — [The Subject of impli- cations and intendments in constitutional provisions belongs so peculiarly to a work devoted to the construction of con- stitutions, that anything like an attempt at exhaustive examination of it would be out of place here. All that is relevant in this connection is the statement of the general rule, that whatever is indispensable to render effective any provision of a constitution, whether the same be a prohibition or restriction, or the grant of a power, must be deemed implied and intended in the provision itself; 219 that, where- ever a general power is given or duty enjoined, every particular power necessary for the exercise of the one and the performance of the other is given by implication :"" and that this rule, in its turn, is subject to the other, that, where the means for the exercise of a power granted are also given, no other or different means or powers can be implied on the ground of convenience or efficiency," 1 and to the further qualification, elsewhere referred to, 222 that, in the absence of specification of such means, none interfering with established relations or existing rights and obligations will be presumed to be intended, unless strictly necessary to give effect to the provision. 223 There is, indeed, a difference, in respect of implied powers, between the federal and state constitutions. "The constitution of the United States consists chiefly in a grant of enumerated powers; hence, in interpreting it, the courts presume the existence of no power not expressly or impliedly conferred. On the other hand, a state constitution proceeds on the idea ^ S1T Op. of Just., supra, at p. tion gives it the right to declare a 610. a statute unconstitutional and void: 818 Hyde v. White, 24 Tex. 137. Emcrick v. Harris, 1 Binn. (Pa) 21s Story, Const., § 430; Cooley, 416, 420 ; Cooley, C. L., 192, etc. . L.. 77. »" Field v. People, supra. 220 Field v. People, 3 111. 79. 222 Ante, § 520. Thus tlie duty imposed upon the 223 Com'th v. Downes, 24 Pick^ judiciary to support the coustitu- (Mass.) 227. 43 754: CONSTITUTIONS. [§ 536 that all legislative functions are in the Legislature;" 3 " and " hence the General Assembly may exercise all the powers which are properly legislative, and which are not taken away l>y our own or by the federal constitution.""" "Congress can pass no laws but those which the constitution authorizes, cither expressly or by clear implication, while the Assembly has jurisdiction of all subjects on which its legislation is not prohibited. The powers not granted to the Union are with- held, but the state retains every attribute of sovereignty A'iiich is not taken away.'"" § 536. Imperative and Directory Provisions. — [It has been laid down in a recent case that constitutional provisions are absolutely mandatory, and in no case to be regarded as directory only, to be obeyed or not, within the discretion of either or all the departments of the government. 227 However well founded in reason this rule may be, 228 and however salutary in practice its general adoption might prove, it is certainly not to its full extent,borne (nit by authority. Prob- ably as great liberties have been taken in this respect, with constitutional as with statutory provisions, the arguments decisive as to the former being in the main, drawn from considerations of convenience and supposed reasonableness, tested by the imagined consequences of a contrary interpre- tation, and leading the courts to the conclusion, whether properly or improperly, and with much divergence as to the results arrived at concerning particular provisions, that the direction in question was or was not intended to be complied with strictly and at all events. 229 As in the case of a statute,'"' 30 where a constitutional provision clearly leaves something to the discretion of the Legislature, — as where it requires that a bill, before becoming a law, shall be fully and distinctly read 2 - M 'Bish., Wr. L., § 02. tion. and (he grant of n power is a Sliarpless v. Philadelphia, 21 inundate, the rule as to (lie con- Pn. St. 117, 161. struction of statutes not applying ; m Com'th v. Hartman, 17 Pa. so thai a constitutional provision St. lis, ll<); Weister v. Hade, 52 for holding elections between [d. 474: Cooley, C. L, 10, 11. a.m. and 7 p.m. renders notes 1 Hunt v. State, 22 Tex. App., received after 7 p.m. illegal. 896. And sre Varney v. Justice, Comp. ante, s, 438. (Ky.) G S. West. Rep. 457. where Si > See Cooley. C. L. 93, 94. i< said that prohibitory language in M * Comp. Cooley, C. L., 8S-98. a constitution is a positive nega- 2au Ante, § 314. §536] CONSTITUTIONS. 755 on three different days, — it manifestly addresses itself to the judgment of that body, — e. g. x as to what reading shall be suflicientlv full and distinct, 231 — and iu that sense, must obviously be deemed directory . aM Similarly, where it directs the awarding of contracts to the lowest bidder and upon adequate security. 233 But the courts have gone much farther. A detailed examination of what provisions have been held directory and what mandatory, and of the reasoning by which such decisions have been fortified, is not permissible here. A few instances of both classes, however, may serve to point out the effect of the rule applied to constitutions as compared with statutes. It is said, that, as a constitution is to be interpreted so as to carry out the great principles of government, not to defeat them, its commands as to the time or manner of performing an act are to be regarded as merely directory, wherever it is not said that the act shall be done at the time or iu the manner prescribed, and no other. 234 Consequently, the time prescribed by a provision in the schedule of a constitution for the Legislature to provide by law for the holding of an election was held directory. 23 The same effect has been given to provisions prescribing the style of statutes, — u Be it enacted," etc. ; 236 requiring an oath from legislators to support the constitution ; 231 obliging judges to give written opinions on every question arising on the record. 238 Mandatory, on the other hand, have been held provisions requiring the signing of bills and joint resolutions by the presiding officers of the respective houses of the Legislature, and by the secretary of the senate and the clerk of the house; 230 and the insertion of an emergency clause, 2:51 Coolev, C. L., 96. 222 See Miller v. State, 3 Ohio St. 475. •233 People v. Fay, 3 Lans. (K Y.) 398 (ante, § 52*4); or forbids special legislation " where a gene- ral law can be made applicable": Buekalew, Const, of Pa., p. 82, and cases there cited. 2 - 4 Com'lli v. Clark, 7 Watts & S. (Pa.) 127, 133. ■"•> Ibid. But see State v. John- son. 20 Ark. 281, as lo a provision requiring: officers to qualify within .fifteen days after notice of appoint- ment. 236 Swann v. Buck, 40 Miss. 208 ; McPhcrson v. Leonard, 29 Mil. 377; Cape Girardeau v. Riley, 52 Mo. 424. Cut see contra, Slate v. Rogers, 10 Nev. :25Q ; Staie v. Patterson, (X. C.) 4 S. East. Rep. 350. -• :1 Hill v. Borland, 40 Miss. CIS; so as lo sustain legislation. xsa "VVdlets v. liidgway, 9 Ind. 367. •-" 9 State v. Glenn, 18 Nev. 34 ; and see Cooley, C. L., 184, and cases there cited. 756 CONSTITUTIONS. [§ 537 in case the statute was intended to take effect before publica- tion ; 248 requirements of proportional taxation ; 241 a prohi- bition against the division of counties of a certain size with- out a popular vote ; 2 " a provision giving the right of cumu- lative voting at corporate elections.''" Again, among the more important provisions contained in many constitutions which have been construed by some courts as mandatory, and by others as directory, are provisions requiring the read- ing of bills three times, on three different days, etc., 2 " and confining each statute to a single subject, to be expressed in its title. 2 "] § 537. Waiver of Constitutional Provisions. Estoppel. — [" Where a constitutional provision is designed for the protec- tionsolely of the property rights of the citizen, it is competent for him to waive the protection, and to consent to such action as would be invalid if taken against his will.'' 218 Thus, a pro- vision forbidding the taking of private property without com- pensation may be waived. 2 " And where one voluntarily avails himself of the benefit of a statute, — e. (/., where he chooses to pursue a remedy provided by statute, in preference to a com- mon law remedy that was open to him, 248 or receives a benefit or compensation appointed by a statute, 249 he is taken to have waived the objection he otherwise might have made to its constitutionality. 200 Nor, in general, can this question be 240 Mark v. State, 15 lad. 93, to be directory. The contrary and see ante, § 521. view is said to be held in all other 241 Oliver v. Wash'n Mills, 11 states : Cooley, C. L., 180. Allen (Mass.) 2G8 ; and see Life 246 Cooley. C. L., 210. Ass'n v. Assessors, 49 Mo. 512. "^ lie Albany Str.. 11 Wend. 242 State v. Merriman, G Wis. 14. (N. Y.) 149; Brown v. Worcester, 243 Pierce v. Com'th, 104 Pa. St, 13 Gray (.Mass.) 31 ; and see 150. Edmundson v. It. R. Co., Ill Pa. 244 Directory: Miller v. State, 3 St. 316. Ohio St. 475; Pirn v. Nicholson, 248 Ralston v. Oursler, 12 Ohio 6 Id. 17G. Mandatory: Snperv's St. 105. v. Ilccnan, 2 Minn. 330 ; Stechert 249 See lie Woolsev, 95 N. Y. v. East Saginaw, 22 Mich. 104; 135; Philadelphia v. Com'th, 52 Weill v. Kenfield, 54 Cal. Ill; Pa. St. 451, 455. People v. Starne, 35 111. 121; Me- 250 So one who has taken stock Culloch v. State, 11 Ind. 434; in a corporation, though not one Cannon v. Mathes, 8 Hcisk. (Tenn.) of the corporators, but with 504. knowledge of a defect that would 245 Pirn v. Nicholson, supra; render t lie incorporation uncousti- State v. Covington, 29 Ohio St. tntioual, waives the right to take 102; Washington v. Page, 4 Cal. advantage thereof: McClineh v. 388; Re Boston, etc., Mining Co., Sturgis, 72 Me. 288. 51 Id. G24 — hold such provisions §§ 538, 539] constitutions. 757 raised by any one not having an interest in the matter, or not being, in point of fact, affected by the act.*" Tims, tho question of the constitutionality of an act relating to the opening of a street, cannot be raised by one not assessed for the improvement under the act. 262 § 538. Enactments and Contracts in Violation of Constitutional Provisions.— [A statute, 253 or municipal ordinance 204 violating any provision, or passed in disregard of any mandate or prohibition, of the constitution, has no legal force. 2 " But an enactment may be unconstitutional in part only, and valid as to the rest ; the question depending upon the nature of the defect, — whether it is one that pervades the whole and attaches to every portion of it, or one that affects only some clause or provision capable of being detached from the rest without destroying the completeness of the legislation or causing a departure from the main intent of its enactment. 85 * A contract violating, or tending to promote the violation of, a constitutional provision, is equally illegal and void with a contract having a similar effect as to a statute. 267 Thus, a contract forbidden to a municipality by the constitution was, in a case already referred to, 268 held to confer no rights upon it; and the Fourteenth Amendment of the federal constitution having declared all debts or obligations incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave, illegal and void, a contract made since the war for the sale and delivery of bonds of confederate states, was held to be void, and not a basis of an action for the recovery of damages for the breach thereof. 259 §539. Commencement. Self-executing Provisions. — [In aCCOl'd- dance with the rule that fractions of a day are not to be 251 Cooley, C L., 197, and cases v. Campbell, (Minn.) 35 N. West, there eired to which m;iy be added Rep. 3G(5. And as to the presnmp- Franklin Co. v. State, (Flu.) Feb. tiou against unconstitutionality, 15, 1SS8. see ante, § 527, and §§ 178. ct acq., 252 Be Woolsey, supra. As to and cases there cited, to which may the waiver of the constitutional be added Stump v. Horn buck, right of trial by jury, see Cooley, (Mo.) G S. West. Rep. 350. C. L.. 217. 251 See ante, §§ 449, ct seq. 253 Cooley, C. L. 156, etc. " 8 Eai leys' App., ante, § 521. 254 Id. 240-241. !53 Branch v. Haas, 10 Fed. Rep. 255 See Id. 224, and note. 53. 260 Id. 211, etc. Comp. Coates /-" CONSTITUTIONS. [§ 539 regarded, a constitution or constitutional amendment is ordinarily to be deemed in force on the whole of the day of its adoption by the vote of the people. 369 But, in a ease where the vote of a township authorizing the issue of certain bonds was past on the same day as, but prior to the dosing of the polls for, an election that resulted in the adoption of a new constitution prohibiting such issue, it was held that the court would consider the fractions of a day, and as the constitution could not take effect until the close of the voting, the issue was held valid." 1 And it would seem that this decision should furnish the proper rule for determining when a constitution should be deemed in force with reference to subjects as to which it changes previously existing rights and duties. § 510 [A, delicate question sometimes arises in the inter- pretation of constitutional provisions, which, whilst this treatise has no proper place for its extended consideration, may yet be here briefly referred to, — whether or not they are self-executing. It is laid down: ''A constitu- tional provision may be said to be self-executing if it sup- plies a sufficient rule by means of which the right given may be enjoyed or protected, or the duty imposed may be enforced ; and it is not self-executing where it merely indi- cates principles, without laying down rides by means of which those principles may be given the force of law.'"* 03 Thus, a constitutional provision, that, in all elections for directors or managers of a corporation, each member may cast for one candidate all t lie votes he is entitled to cast, is self executing. 3 " A provision that "all taxes shall be uniform " and "levied under general laws," is not self ex- ecuting, and therefore does not repeal any special and local tax laws. 36 ' Indeed, whether or not a constitutional provision is to be given the effect of repealing, by itself, and without further legislation, existing statutes, is one as to which no absolute rule can, it seems, be formulated. It has been said, 5G0 Schall v. Bowman, G'3 111. 2C3 Pierce v. Conftl), 104 Pa. 821. St. 150. 11 Louisville v. Sav. B'k, 104. - u Lebigh Iron Co. v. Lower L*. S. 469. Macnngic, 81 Pa. St. 482. -" ; - Cooley, C. L.. 100. § 539] CONSTITUTIONS. 759 that, where a particular proceeding, authorized by a former statute, is prohibited by a constitution, the statute is to be deemed abrogated, and that, if an act would be unconstitu- tional if passed after the adoption of the constitution, because of inconsistency with it, it is annulled by the constitution if in existence at the time of the hitter's adoption. 285 But the question, in every case, would seem to be one of intention, to be considered in the light of the evil to be remedied or guarded against by the provision. 868 265 Hills v. Chicago, GO 111. 86. 90 Pa. St. 397, 408-413; Cooloy, 26(5 Lewis v. Hollahan, 103 Pa. C. L., 98-102; Bish., Wr. L., St. 425, 430. See, for discus- §§ 11a, note, 92b ; and comp. ante, sions of lliis subject, the case just § 520, and § 218, note 37. cited; Allegheny Co. v. Gibson, ADDENDA See § 77, p. 104, note 45.— Under a statute enabling married women to maintain, without joinder of their husbands, actions for the "recov- ery and protection " of their property, it was held, in Castner v. Slifcer, 43 N. J. Eq. 8; 9 Centr. Rep. 45, that a married woman who had acquired an interest as tenant in common in certain real estate, might alone maintain a proceeding for partition. § 79, p. 108, note 71.— Under a statute declaring that no "grant in fee or of a freehold estate," not duly acknowledged or attested in a prescribed manner, should, until so acknowledged, etc., take effect as against " a purchaser or incumbrancer," it was held, in JVellis v. Munson, (N. Y.) 11 Centr. Rep. 449, that the creation of a right to bring water iu pipes over the land of one for the benefit of another was within the words "grant in fee," etc.; and (following Chamber- lain v. Spargur, 86 N. Y. 003) that "purchaser or incumbrancer" included all subsequent grantees with or without notice. § 114, p. 155, note (5.)— Compare as to the American doctrine upon this subject : Cooky, C. L., 779-780 (* 620) and 1 Dill, Mun. Corp. (3rd cd.) S 196, and cases referred to. It can scarcely be said that the understanding upon this point is entirely settled in this country. The most acceptable view is probably that expressed in 1 Dill, ubi supra: "Unless the votes for an ineligible person arc expressly declared to be void the effect of such a person receiving a majority of the votes cast is, according to the weight of American authority, and the reason of the matter (in view of our mode of election, with- out previous binding nominations, by secret ballot, leaving each elector to vote for whomsoever he pleases), that a new election must be held, and not to give the office to the qualified person having the next highest number of votes." § 150, p. 209. note (c.)— The Pennsylvania liquor law of 13 May. 1887. "An act to restrain and regulate the sale," etc.. places the granting of licenses in the hands of the court of Quarter Sessions, [761] 762 ADDENDA. and provides that the same "shall hear petitions from residents of the ward, borough or township, in addition to that of Uie applicant, in favor and remonstrances against the application for such license, and in all cases shall refuse the same whenever in the opinion of the said court, having due regard to the number and character of the petitioners for and against such application, such license is not necessary for the accommodation of the public and entertainment of strangers or travelers, or that the applicant or applicants is or are not fit persons to whom such license should be granted." The refu- sal of the court of Q. S., in the absence of any remonstrance and without assigning any reason, to grant the application 1'or renewal of license of a person admittedly of unexceptionable character, whose petition was properly presented and fortified by an additional recommendation signed by fifly-four business men of his neighbor- hood, was made the basis of an application to the Supreme Court for a mandamus to compel the granting of the same. In denying the writ prayed for, that court, per Paxson, J., said, after referring to the title as showing the act to be one in restraint of the liquor traffic : " It is an error to suppose that the sole duty of the court is confined to the inquiry whether the applicant is a citizen of the United States and a mat: of good moral character. Back of all this lies the question whether the petitioner's house is " necessary for the accommodation of the public and entertainment of strangers and travelers," and the plain duty of the court of Quarter Sessions under the act of Assembh is to so exercise its discretion as to "restrain" rather than increase the sale of liquors. Thus, if award has 100 public houses where only fifty are required by the public wants, it is plain that fifty houses must be denied license, although every one of the applicants is a worthy man and keeps a respectable house. The denial of license under such circumstances may seem arbitrary. The trouble is there are more persons who want to sell liquor than the Legislature considered it for the public good to license for that purpose. I will not consume time with an extended discussion of the right of the judges of the court of Quarter Sessions to exercise their discretion in the granting of licenses. It has been exercised by that court almost time out of mind, and the power has again and again been affirmed by this court. Thta discretion, however, is a legal discretion, to be exercised wisely and not arbitrarily. A judge who refuses all applications unless for cause shown errs as widely as the judge who grants all applications. "We have no doubt the court may in some instances act of its own knowledge. The mere appearance of an applicant, for license, when he comes to the bar of the court, may be sufficient to satisfy the judge that he is not a fil person to keep a public house. While the act of deciding in such cases is perhaps quasi-judicial, the difference betwren granting or withholding a license and the decision of a question between par- ties to a private litigation is manifest. Neither the petitioner nor any other person in this state has any property in the right to sell liquor. Were we to grant the alternative mandamus now prayed ADDENDA. 763 for it would result only in a return thereto by the judges of the court below that they have considered Ihe application of the peti- tioner, and in the exercise of the judicial discretion conferred on them by law, have rejected it. Under all our cases such a return would he conclusive and it would lead to no profitable result to allow the writ. It is therefore denied." Raudenbusch's Petition, 21 W. A r - G. (Pa.) 432. Comp. § 431. See § 169, p. 233, note (b.)-In Pennsylvania it was held that the refu- sal by a foreigner, who had arrived and become domicUed there, to receive and provide for his wife who followed him thither, was a virtual turning her out of doors, and gave the courts of tbat state jurisdiction, under its laws, to decree her alimony. " Our statute," says Gibson, C. J., "is a municipal regulation for the protection of the community as well as the wife . . . It is proper, tberefore, that [the husband,] and not the community, bear the burthen other support :" McDermott's App., 8 Walt* & S. (Pa.) 251, 256. p. 235, note 114. — In the absence of expressions to the contrary, a\. or corporatin i, 87. persons, 257. whatever, corporate oi sole, 251. persons, 170 n. place, 408. property, 15. public or joint stock, or public security whatsoever, 335. p/ace, 378. quay, wharf or landing place, 340. right of common, 35. or remedy, 216. 8uc7i practices, 308. sii'W or sit//s, 255. vessel on the high seas, 174. will, 62. woman who may hereafter be married in this commonwealth, 321. Apology, construction of act requiring insertion of, for libel, in newspaper, 139. Apparent, see Conflict. APPEAL, construction of act giving, on judgment for defendant on motion to quash, 110 n, 237 n, 417 n. acts giving, extending or preserving right of, 108. relative to, held prospective, 271, 272. retrospective, 288. inapplicable to pending cause, 290. decision on, after repeal of statute, 478. who is parly liable to pay costs on, 77. from one quarter session to another, 23. given by act in manner incapable of putting in operation, 24. right of, involves right of hearing, 428. when reasonable time allowed for, 420. given to next session, 351. affidavit of, to be filed immediately, 247. conditions of, 435. implied reference between acts prescribed, 199, 207. notice of, 441, 442, 443. when excused by death of appellee, 441. when not, &c, 443. and security, want of, waived, 445. impossibility to perfect, 441, 442, 443. when right of, supplied in statute from constitution, 181. right of, destroyed by declaring lower jurisdiction final, 152 n. discretion of Orphans' Court as to security on, 225. construction of second act relative to, 220. from judgment of justice of the peace, 247. given when the sum adjudged . . . exceeds, 245. INDEX. i 73 [The reference is to sections.] APPEAL (continued). denial of, in landlord and tenant ('uses, 403. effect of declaration of intent, not to, 445. See Executors and Administrators, Judgments, Limitations, Notice, Recognizance, Review, Writ of Error. Appear with his child, 267. APPEARANCE, wrongful failure to put in, not permissible to defeat remedy, 267. See Affidavit of Defence. act prescribing that certain things shall be, 398. when waiver of defect in summons, 445. Appendix, part of journals, 33 n. Application of term depends on moment of adjudication, 90. Appointed, 369. Officers, 512. Appointment is not election, 508 n. APPRENTICE, liability of, for absenting himself from service, 134. penal act as to, 235. indentures for binding of, 269. construction of act allowing justice of the peace to dis- charge, 422. See Servant. Apprenticeship, deed of, 10. APPROPRIATION out of fund otherwise appropriated, 45. construction of act making too small an, 265. act may suspend other act, 215 and note, and revenue acts construed with previous acts in pari materia, 46. Arbitrary procedure, see Summary Jurisdiction. ARBITRATION, act providing for, 108, 118, 351. defect in recognizance for appearance in, 445. in case of dispute as to amount, 155. Arbitrators, award of, partly good and partly bad, 460. Army, 75. Arrangement not to control interpretation, 70. Arrest, illegal, 297, 435. See Capias. Arson, 103. Art, terms of, see Commercial, Technical. Article, 409. Articles, see Headings. As aforesaid, 514. described, 434 n. far as possible, 260. Ashes and dirt, liability for failure to remove, 469. As if passed after this act. 193. said alteration and amendment had not been made, 531. she had continued unmarried, 422. the act had not passed, 376. this constitution had not been adopted, 531. ASSAULT AND BATTERY, right of action for, held to be property, 75 n. civil and criminal liability for, 469. by several, 253. effect of death of victim of, upon exemption from second prosecution for same offence, 259. on police officer in citizen's clothes, 133. Assemble and meet together, 62. Assertion of right, act done in the, 131. Assessed, 126. ASSESSMENT, construction of act requiring assessors to sit to revise, 108 n. mode of, not saved by saving of right or remedy, 216. acts legalizing, 292, 293, 521 (Addenda). erroneous, 297. 7 7 4 INDEX. [The reference is to sections] ASSESSMENT (continued). roll, return and deposit of, 435, 436. notice of, 436. See Exemption, Municipal Improvements, Municipalities, Stockholders, Taxes, Vote. Asrign, 462. Assignee, 80. Assignees, act allowing, to sue, held retrospective, 287. Assignments, 75. ASSIGNMENTS for benefit of creditors, construction of act forbidding prefer- ences in, 124, 138. See Compositions, Preferences. of labor claims, 350. mail contracts, 449. government contracts, 450. See Annulment. See Collateral Inheritance Tax. equitable, see Bill OF Sale. Assistance, writ of, with fieri facias for costs, is process, 74. Associated words and clauses in constitution, 532. ASSOCIATION of words, effect on construction, 396, 416, 532. restricting effect of, 396. extending effect of, 404. As substantial justice shall require, 147. Assure, 73. As the court thinks right, 307. Asylum, see Lunatic. At any time after return day and ten days' service of the writ, 46. law, 77. or in equity, 159. least, 391. two days, 432 n. such time or times as they may deem expedient, 142. the date of passage, 292, 498 n. end thereof 348. their just and proper discretion, 428. the office, 301. time of the application, 247. trial, 247 (Addenda), 388. ATTACHMENTS, strict construction of acts authorizing, 262 n, 344, 351. restricted to liquidated claims, 98. act authorizing, does not create new liability, 344 n. money in hands of public official not liable to, 251. municipal corporation not liable to, 165ti, 251. against foreign corporations, act giving, held retrospect- ive, 287. to compel payment of master's fee, 14. of witnesses, refusal of court to grant, 125. to testify, 419 n. of wages for boarding debt, construction of act permit- ting, 126. no waiver of act forbidding, 447. for contempt, not imprisonment for debt, 74. See Con- tempt. against married women, 123. act relating to right of creditors to intervene in, see Cred- itors. foreign, in Pennsylvania, limited to claims ex contractu, 114. not within affidavit of defence laws, 249. Attaint, see Jurors. Attendance in court, or before any ojjicitrf pursuant to law, 64. INDEX. 775 [The reference is to sections.] ATTESTATION, requisites of, where required to state that instrument explained, 20. of wills, 62. provision relating to, held directory, 437. estoppel against claiming advantage from defect in, 448. ATTORNEY, affidavit by, when admissible, 110. effect of advice of, to apprentice that indenture void, 131. act making bills of, taxable, &c, applicable to pending cause, 286. not taxable as tradesman, 407. remedies against unqualified persons acting as, 467. strict construction of act prohibiting, from purchasing, 341. See Married Women, Notice of Appeal, Solicitor. Attorney-fee, ouster of justice peace jurisdiction, by inclusion of, in note, 152 n. act limiting amount of, held retrospective, 287. Attorney-General, see Departmental Usage. Attorney's commission, 226 n. See Justice of the Peace. Attorneys, 38. Auctioneer, contract signed by, 348. selling partly out of his proper district, 460. Auctions, 269. Auditor-General, see Change of name of Corporation. Auditors or Controllers, 532. Author, 115. Author, consent of, by agent, 105. right of action of, for printing works without consent, 469. Author of any work, 176. printer and publisher, 304. Authorized and empowered, 306. to adjust and audit, 306. Award, see Arbitrators. Bachelor, see Householder. Baggage, included in goods or merchandise 127. See Luggage. Bail, see Bonds, Capias, Executors and Administrators. Baker, liability for sale of impure bread, 135. Ballot, constitutional requirement that elections shall be by, 520. boxes, provision as to arrangement, &c, of, 438. BANK, discounting note, is assignee, 80. what is place where, is located, 94 n. effect of prohibition against loan to director by, 137 n. in which government is stockholder, 164. special act relative to, not repealed by general act, 229. See Banks, Cashier, National Banks. Banker, whether, a person acting in a. fiduciary capacity, 90. Bankers and brokers, act requiring returns by, 416. Banking institution, illegal contract for, 452. Banking or discounting privileges, 532. Bankrupt, earnings by labor of, 248. real estate of, see Real Estate. Bankruptcy, who are creditors in case of, 90. law, 219, 276, 296, 303, 340, 417. BANKS, act forbidding, to pay interest on deposits, 279. reducing rate of interest allowed to, 279. authorizing erection of certain number of, 353. See Bank Cashier, National Banks. Bargain and sale, power of, included in power to grant, 79. Barratry, 186. Barriers, see Railroads. Barter, see Municipalities ; Sell. 776 1NDKX. [The reference is b> sectio BASTARD, settlement of, 111. legislature cannol make, anything but bastard, 171. act legitimatizing, by subsequent marriage of parents, 171. I'i i \ 1 1 vi 1- a rin r. Bastardize, see Married Women. Bastardy proceedings, 143. evidence in, 1 13. Bay windows, see Mi nicip ilities. /.' ■/, 365. Beer, see Liquor. 391. Bei ■ •'■ rman o 336. in 37. Be in possession nf game after the last day, 296. • lacti d, 536. BELIEF, mere, as a defence, 131 n. erroneous, in a fact, 132. when reasonableness of, immaterial, 297. Bench, selling beer to be drunk outside of shop on, 144. Benefices, construction of 12 Car. 2. c. 17. concerning, 116, Beneficial construction, 103-112. See Liberal Construction. Benefits, ;iots conferring, prospective, 278. Bequests to charities, strict construction of act regulating, 342. Betting, see Wagers. Beyond the seas, 20, 78, 296. Bicycles, 54, 335. Bid, at auction declared void, 269. act not construed to cut oil' accepted, 275. Bigamy, 133, 169. BILL (see Amendment, Enactment, Statute), requirement of three read- ings, 50J . 536. introduction of, ")21 n. provisions as to subject, title, &c,, 524, 536, and note. style of, 536. and resolutions of legislature, signing of, 536. Billiard hall, liability of keeper of, for permitting minor in, 132 n. Bill of lading, exception in, from liability for breakage, &c, 260 n. rights, 516. Bill of sate, 139. Bill of exception, see Attachment, Continuance, Discretion, New Trial, Writ of Error. BILLS OF SACK, affidavit when required, 10. act relating to attestation of, 20. requiring registration of, 137, 139, 274. what not evasion of, 144. agreements for, when to be registered, 139. transferring ships by way of mortgage, 460. Blank notes, 418 n. votes, 441 n. Blasphemy, 236, 494. Boarding debts, see Attachment. Board of health, women to he appointed in, in Massachusetts, 385 n. Boat, what, is a ship, 103. Bohea, 83. Bona fide, see Innocent, Usury. Bona fides in assignment, &c, of insurance policy, 14. Bonam parletn, words construed in, 385. Bond, 381, 3S.;. or obligation, 383. BOND of tax-collector, with one surety, where act requires two, 218. INDEX. 777 [The reference i» to sections.] BOND {continued). note not bad because act requires, 218. act prescribing, to be taken by surrogate, 437. BONDS, construction of act authorizing, in aid of railroads, &c, 9S, £U, OU^. ' not in the penalty payable and conditioned as prescribed by law, 110. act relative to suits on official, held retrospective, 287. statute of limitation in suits upon official, 167. bail, 164. power of municipality to give, 418 n. married woman to give, see Married Women. act requiring certified signature, &c, to municipal, 437. of directors, provision as to form of, directory, 438. construction of act giving counties right to issue, 214, 502. foreign held, 169 n. See Confederate Bonds, Margins, Municipality, Official Bonds ... Book entries, case involving, not necessarily one requiring the examination of a long account, loo. Boom companies, 249. Booth, held not included in tenement, 406. BOROUGH, liability of, for payment of damages assessed for opening street, 126.' construction of act empowering courts to change charter of, 212. notice of application for charter of, see Notice, Religious Newspaper. See Fire Limits, Ordinance. BORROW, right to, involves right to give obligation for debt, 422 n. power of municipality to, 418 n. married woman to, see Married Womeot. Borrower, when estopped from defence of usury, 448. Bottoms, contract to ship in foreign, 452. _ _ Boundaries, provisions of act as to fixing of, by commissioners, 4o5. bee City, Municipality. BOUNTY, construction of acts relating to, 109, 275, 436. loans to pay, 79. legalizing action of township as to paying, 122. Branch railroad, 79. Breach of duty or of contract, 401 . See Duty. Breach of promise of marriage, when not included in action on contract, 98. Bread, sale by servant of adulterated, 135. Bread usually sold as French or fancy bread, 85. Break from prison, 129. Breaking, 337. Break or enter, 303. Bribery, 338. Bricks, act regulating dimensions of, 455. Bridge, 73, 79, 349. structures, 79. BRIDGE, what involved in grant of power to build, 418. charter requiring corporation to, roads, means existing roads, 85. See Drawbridge, Navigation, Notice, Repair, Toll-Bridge, Tolls. British ship, 116. Broker, 47. See Bankers and Brokers, Pawnbroker, Real Estate Broker. Brokers, unqualified, 456 and note. Brought or exhibited, 416 n. Buggy may be wagon, 103. Building, 140, 396, 405 n., 406, 408. Building, act permitting demolition of, 428. 778 i.\i)i:\. [The reference is to sections ] BUILDING ASSOCIATIONS, when not savings institutions, 44, 396. persons may become members of, merely to loan, 141. implied repeal between acts relating to, 201. fines in, 352. See Fines. transfer of stock in, 43S. not within constitutional provision as to cor- porations with banking or discounting privileges, 532. Building line, act relative to, 36. Buildings, 396. Bulk windows, see Municipalities. Bull, not included in ox, cow, heifer or other cattle, 412. Burdens, strict construction of acts imposing, 345, 356. conferring exemptions from common, 356. Burglary, acts relating to, 54, 337, and note, 405 u. Burying vault not a building, erection or inclosure, 405 n. Business, 521 n. trade or manufacture, 406. Butcher raising cattle slaughtered on his farm not a farmer, 98. Butter, act regulating sale of, 455. Buyer, act authorizing seizure of light and xmjust scales, &c., means as to, 119. Buy, sell or receive from, 299. By, 391. By-laws (see Corporation, Ordinance, Power), power to make needful, 418. partly good and partly bad, 460. By . . . insertions . . . in successive weeks, 389. sample, or soliciting or procuring orders, 174 n. the court or judge, 105. virtue of, 297. the authority of any other law, 173. Cabman trespassing on railroad company's property, 134. Calls, see Corporations, Stockholders. Campaign fund, contract to contribute to, 460. Can, 299. Canal boat, when a vessel, 103. Can be removed, 249. CANDIDATE, exclusion of, from polling place, 36. effect of voting for ineligible, 1 14 and Addenda. acting as returning officer ineligible, 114. contract of, to contribute to campaign fund, 460. suit by, against election officer, 469. See Election. Capias ad respondendum not issuable against married woman liable for torts, 123. satisfaciendum not issuable against married woman liable, &c. Vocht v. Kuklence (Pa.), 11 Cenlr. Rep, 767. .effect of destruction of bail's right to surrender principal taken under, 461. Capital stock, 142, 356 n. * Captions, 69, 70, 512. See Headings. Capture, 79, 337 n. See Prize. Carriage, 54, 375, 378. See Vehicle. Carrier, construction of act relating to liability of, 260, 301. See Bill of Lading, Common Carrier. Carries on his business, 401. Carrying concealed weapons, see Concealed Weapons. Cars, see Train op Cars. Cases provided for, 226 n. Cashier, act relating to, of any bank, 169 {Addenda.) Cast away or destroy, 402. Casting vote, 13. INDEX. 779 [Tbe reference ie to sections.] Casus omissus, 18, 22. 336. See Omission. Cattle, (see Bull, Killing, Other Cattle, Turn Loose), act relating to transportation of, 407. Causa causans, 473. sine qua non, 473. CAUSE OF ACTION, not created by own wrong, 267 n. when saved, 485. unaffected by repeal, 481, 483. See Right of Action, Limitations. enactment, 27, 28. Cause to be tctken, 337. Cemetery, prohibition against using, within one hundred yards of dwelling, 249 n. Census, changes in population as shown by, not judicially noticed, 261 n. Certainty of meaning, effect of, 4. statutes devoid of, 24. Certificate, see Marriage, Registry. CERTIORARI, effect of prohibition of removal of conviction by, 11. increase of jurisdiction not restoration of, 112. to Quarter Sessions, when not taken away from Supreme Court, 151, 152, 522 and note, prohibition of, inapplicable where jurisdiction overstep- ped, 152. prohibition of, inapplicable where jurisdiction wrongly as- sumed, 385 n. court improperly consti- tuted, 152. in cases of fraud, 152. to suits under ordinances, 152. by state court to officer proceeding under act of congress, 152 7i. void proceedings treated as voidable for purpose of review on, 152 n. when excluded by reference, 153. to new proceedings, 154. acts taking, away, inapplicable to government, 164. effect of making judgment of inferior court final on, 420. when impliedly taken away in contested election cases, 420 n. See Review. Cessante ratione cessat lex, 62. Challenge, act giving right of peremptory, held retrospective, 288. See Codefendants, Dwelling, Jurors. Chambers, see Householder. Chancery, see Equity, Evidence. CHANGE of circumstances, effect on construction, 85 n. date of election does not change liability for expenses, 112. publication of newspaper, 389. degree of punishment, 239. extent of jurisdiction does not change finality of judgment, 112. grade, damages for, 434. language (see Omissions), 378-384. when insignificant, 381. change of intent, 51, 206, 382. in constitutions, 531. law, presumption against needless, by statute, 113-128. constitution, 520. locality and incidents of punishments, 237. name of corporation, notice of, to auditor-general, 17. See Corporation. policy not presumed from new constitution, 520. quality and incidents of offence, 238. venue, act relating to, held prospective, 289 n. 780 INDEX. [The reference is to sections.] CHANGE (continued). of venue, effect on, of saving of right to proceed, 487. right of Supreme ('nun to order, 522. Changes in an act adopted by another, do not aflect latter, 85. Chapter, see Headings, Revision. Charge, 10, 405. Charge, when included in opinion, 1 1 ■ - (Jimmies, construction of act requiring devise, &c, to, one calendar month before death, SO. See Bequest, MORTMAIN. Charter-party, guarantee for due performance of, not within stamp laws, 345. I'll MITERS, construction of, most strongly against grantees, 55 and note, promoters regarded as framers of, 55 n. of consolidated companies nol construed together, 55. general act read into special, 56. to be construed so as to accord with subsequent legislation, 354. reservation of power to alter, involves power of additional taxa- tion, 117 n. See Boroughs, Corporations, Municipal Corporations, Ordi- nance, Repeal. Chattel or valuable security, 33 Checks, 418 n. postdated, 418 n. Children, 77, 80, 321, 337. CHILDREN under seven years not guilty of felony, 130. born out of lawful wedlock, cannot be lawfully begotten, 171. act relating to abandonment of, 381. See Abduction, Abandonment, Maintenance, Poor District, Schools. Chimneys, construciion of acts relating to, 218. Glioses in action, when properly, 75 n. Churchett, meeting-houses and oilier regular places of stated worship, 356. Circuit Courts, construction of act relative to, 122. See Removal of Causes. Supreme Court. Circumstances, see External Circumstances. •Circumvention, see Evasion. Citation, see Personal Service. Cities, 37. Citizens, 159. CITY, act aiming at regulation and regular supply of a great, 108. effect of extension of boundaries of, 122, 420. See Councils, Municipalities, Ordinances. City controller, 532 n. Civil case, 507 n. Civil engineer not a laborer, 99 and note. Civil officei-s, 512. Claim of right, see Assertion op Right. Clandestine marriage, see Putative Father. removal of goods, see Fraudulent, REMOVAL. CLASSIFICATION OF CITIES, 521 n. corporations for taxation, 519 n. street railways, 521 n. effect of doubtful, in revised acts, 346. Class legislation, strict construction of, 350. Clause (see Word), effect to be given to every. 23. Clauses, transposition of, in construction, 13, 318, 507 n. See TRANSPOSITION. repugnant, in same act, 183-186. Cleaning women, act relative to, 112 n. Clear days, 391. yearly value, 54. Clerical errors, correction of, 264, 319. See Omissions. Clerical or other errors, 407. INDEX. 781 [The reference is to sections.] Clerk of court, impossibility arising from act of, 442. Coal company, 139, 300. Coal mines, 396. Coals, act regulating sale of, 455. CODE, whole, treated as one body of law, 40. construction of, as changing common law, 127. repeal of special municipal act by, notwithstanding saving clause, 230. See Kevised Statutes, Revision. Codefendants, all, are one party, for challenging jurors, 77. Codicil, see Republication. Cognate acts, construction of, 365, 366. See Analogous Acts. Coke's rules, 27, and note, 29. COLLATERAL inheritance tax laws, attempts at evasion of, 140. trust deed to evade, 460 n. what not evasion of, 144. subject to, 174. See Adopted Child. construction of, as to foreigners, 174. prospective, 276. act exempting husband from, 507 n. inquiry into corporate existence, 114. validity of tax rate, 246. issues, see Act Regulating Criminal Proceedings. Collecting officers, see Judgments. Collision, 258. See Injuries. Collocation of words changed to accomplish meaning, 295, 318. See ARRANGE- MENT, Transposition. Colonel, 80. Colonies, 170. See Country. Comity of nations, see International Law. COMMENCEMENT of constitution, 539. repeal, 489. See Postponement. statutes, 496-500. postponement of, 499. provision requiringdesignation oftimeof, 437. acts speak as from time of, 489, and note. COMMERCIAL LAW, statutes of states not rule of decision in federal courts upon questions of, 122. construction of act changing, 128. terms, 83. usages, see Merchants. Commissions (see Attorney, Municipality) to purchaser of municipal bonds, 139. to seller of municipal bonds, 418. Commitment, construction of act authorizing, on failure to obey orders to pay, 428. not under seal, 435. Committees, proceedings and reports of, 32, 68. delegation of powers to, 352 n., 3*53. Commodity, 75 n. Common, tenant in, see Married Women. COMMON burdens, see Burdens. carriers, exemption from liability unless valuation declared and insured, 12. See Carriers, Railroads. informer, repeal of act taking away right of, to sue, 475. See Qui tam. suit by, 422. Common law, 3 n. COMMON LAW, legislature presumed to know, 127 n. meaning of words, 3, 75, 127, 405 n. 782 INDKX. [The reference is to sections.] COMMON LAW (continued). meaning of words presumed to be understood by legis- lature, 3. rules in construction of acts of congress, 3. statutes to be construed by, 127. construction of acts in affirmation of, 127. doctrine of strict construction of acts in derogation of, 127, 128. presumption against alteration of, 127, 128, 341. rights, construction of act interfering with, 127, 341, 343. statutory regulation for exercise of, not strictly construed, 350. remedy given bv statute for enforcing, cumulative, 470. construction of statute intended as a substitute for, 127, 236 n. implied repeal of, 204. controlled by statute, 361. superseded by act revising whole subject, 236 n. acts construed cumulative to, 204 »., 470. remedies, when not ousted, 153 n., 466. redress, when impliedly given, 464. incidents to new remedies, 154. remedy, when ousted, 433 n. immemorial usage may control, 361. revived by repeal, suspension, expiration of statute, 475. influence of, in construction of constitution, 520 n. See Private Act. Common Pleas (see Accounts), jurisdiction of, in partition, 153. Common schools, see Schools. Common scold, 494, 495 n. Commonwealth, see Government, State. Compensation, see Priority. Competency, see Witnesses. Competent to dispose, Ac, 73. Complaint, 74. Compositions with creditors, effect on, of act forbidding preferences, 124. Compromise, not a recovery or preservation, 12. COMPUTATION of distances, 395. time, 390, 394. when Sunday included and excluded, 393. under constitution, 534. Concealed weapons, act relative to carrying of, 16, 384. Concealment, see Fraudulent Conckalment, Limitations. Concurrent jurisdiction, see Equity, Jurisdiction, Retrospective. Condemnation of land, waiver of right to apply to court for, 444. CONDITION (see Impossibilities) precedent, when requirement is, 431, 432. act establishing, is imperative, 431. court cannot impose additional, to condition prescribed by statute, 351. prescribed by constitution cannot be added to by legislature, 533. unexpressed, supplied by reference to object of enactment, 102. Confederate bonds, contract as to, 538. Confirmation, see Conveyance, Title. Confiscation, strict construction of act working, 343. CONFLICT of laws, 169. between parts of statute to be avoided in construction, 35, 40. constitution to be avoided in construction, 515. INDEX. 783 [The reference is to sections.] CONFLICT (continued). between general and subsidiary provisions, 111. acts, merely apparent, 211, 214. special and general act, merely apparent, 226. degree of, between acts necessary for implied repeal, 210. See Implied Repeal, Inconsistency, Repugnancy. CONFLICTING acts, as to liabilities imposed, 207. of same session, main intent to be effectuated, 210 n. powers, acts granting, 207. rights, acts conferring, 207. Congregation, offence of disturbing, 253. Congress, acts construed by common law, 3. powers of, under constitution, 535. See Legislature. Conjecture, no room for, in construction, 72. Connecticut titles in Pennsylvania, 450. Connection, 79. See Railroads. Consent, see Marriage. Consequences impliedly sanctioned by act, 417. See Incidents. effect of, on construction, 4, 6, 23. See Anomalies. Consideration, illegal, 451. See Contract. Consistency, see Inconsistency. Consolidation of corporations, effect of, on construction of charters, 55. Constable, 247 and note. CONSTITUTION (see Federal Constitution) and statute construed together, 57, 178, 181. construction of statute in conformity with, imperative, 178. not to distort lan- guage, 180. provisions of subsequent, read into prior statute, 181. in what sense a law, 506, 522 n. the people regarded as framers and makers of, 507, 509, 510 and note, 511. amendment, construction of, by reference to former pro- vision, 517. See New Constitution. associated words in, 532. bill of rights in, 516. change of language in, 531. commencement of, 539. common law, influence of, in construction of, 520 n. computation of time under, 534. construction of, and of statutes, analogy and difference between, 506, 540. fundamental principles of, 506, 507, 526. literal, 507, 508. effect of external circumstances, 509, 510. reference to history and mischief, 509, 518. context, 514, 516. as a whole, 515. to harmonize different parts, 515. reference to superseding and succeeding provisions in, 517. federal constitution, treaties, laws, &c, 523. liberal, 526. contracts and enactments in violation of, 538. debates in convention that framed, 510. definitions and qualifications in, not added to or varied, 533. -directory provisions in, 513 n., 536. 784 INDEX. [The reference is to sections.] CONSTITUTION (Continued). enumeration in, effect us to things not enumerated, 513, 533. estoppel against claiming benefit of provision in, 537. expansion and restriction by reference to subject matter and object, 518, 51P. expressio unius, &c, in construction of, 533. extra-territorial operation of, 523 and note, general and particular provisions in. 515 w. generality of language of, 506, 514, 518. government bound by, 522. * hardship and inconvenience, effect in construction of, 5U7, 524. implications and intendments in, 535. implied powers under, 535. irreconcilable repugnance between parts of, 515 n., 51 6. language used in, force of, 507. to be read in grammatical sense, 507. language, plain, permits no interpretation, 507. modification and transposition of, 507, notes 7, 19. multiplicity of words in, 531. new, comparison of, witb old, 517. is but amendment of old, 520, 531. not repeal of existing laws, 520. preamble of, effect of, 511. presumption against intention of statute to violate, 178-181. needless cbange of law by, 520. evasion of, 521. ouster of jurisdiction by, 522. excess of state powers, 523. violation of federal constitution and laws, 523. injustice, absurdity, inconvenience, 509 524. retroaction, 525. provisions of, transcribed from otber states, 530. adoption of construction does not adopt ap- plication, 530. adjudicated, of former, 530. effect of, on construction of transcribed stat- » utes, 371. not construed as useless repetition of exist- ing rule, 520. in pari materia, acts construed together with, 57, 178-181. as to assessment and payment of tax, 143 n. exemplary damages, 218 n. special legislation, 507 n, 521, and note, reading bills tbree times, 508, 536. personal liability of stockholder, 508. disqualification of representatives and senators for appointment, 508 n. compensation for property injured or destroye.l, 518, 519, 520. right of voting, 519. cumulative voting, 540. corporations, 518, 519, 520, 524, 532. elections by ballot, 520. intersections of railroads, 520. that accused may demand nature and cause of accusation, 520. INDEX. 785 [The reference is to sections.] CONSTITUTION (continued). provisions that accused shall have public trial, 524. be confronted with witnesses, 520. in derogation of common law, 520 n. requiring award of contract to lowest bidder, 524, 537. as to increase of municipal debt, 524, 532. contents of bills, 524, 536, and note, repeal of statute, 191, and note, 524 n. title, 527. pay of legislators, 527, 531. requiring oath of allegiance from legislators, 536. limiting power of legislature, 421. as to common schools, 533. uniformity of taxation, 540. provisos and exceptions, construction of, 513 n. } 526. retroaction, presumption against, 525. as to remedies, 525. same words in, 514. saving of existing offices in, 513 n. See Provisos. schedule to, functions of 513. effect of, in construction, 513. omissions not supplied from, 513. construed together with body of, 516 n. self-executing provisions of, 540. stare decisis, in construction of, 529, 530 n. strict construction of, 526 (520 n). surplusage in, rejection of, 507 n. technical and popular meaning of terms in, 507. time prescribed in, when directory, 513 and note, titles or captions of articles in, 512. unexpressed intent, 509. usage, contemporaneous and legislative, construction of, 527-528. waiver of provisions of, 537. CONSTITUTIONAL CONVENTION, functions of, 511. debates in, see Debates. defect remedied by subsequent legislation, 191. CONSTITUTIONALITY of statute, how far an element of definition, 1 n. every doubt resolved in favor of, 180 n., 524, 529 n. question of, who only can raise, 537. See Unconstitutional,. CONSTRUCTION (see Acts in Pari Materia, Application, Benefi- cial, Equitable, Liberal, Literal, Strict Construction). when not permissible, 4, 27, 507. is to ascertain what language of act, not what legislature, means, 7. statute presumed to be passed with reference to rules of, 8. of act embodying several distinct acts, 42. several acts which are to be construed as one, 42. absurdity, injustice, contradiction, unreason, avoided in, 258 and note, 264, 267. adoption of, by re-enactment, 368, 371. transcribing foreign act, 371. See Con- stitution. transcribing, does not adopt fluctuation of decisions, 371. amendment made to harmonize by, 40. arrangement and collocation not controlling of, 70. 50 786 index. [The reference is to sections.] CONSTRUCTION (continued). bonam partem, in, 385. change of, lias effect of amendment, 1 a. codes and revisions, of, 40, 368. consequences, effect of, 6, 507, 524. constitutions, compared with statutes, 506-540. contemporaneous, 357, 361, 527-528. context, referred to in, 35, 42, 514-515. contracts, statutes containing elements of, 354 n. convenience, &c, not controlling in, 4. curative and declaratory laws, 291, 293. date of enactment, meaning at, 85. definition of, 1, note 2. division of subject of, 1. double penalties avoided by, 253-257. equitable, in sense of liberal, 320-321. strict sense, 322-325. equity, rules of, same in law as in, 325 n. evasion avoided in, 138. facilitated by, 252. expressions frequently used in statutes, 388-395. former law, as near use and reason of, as possible, 113. general phrases, act relating to interpretation of, 329 n. grammatical, not always observed, 81-82. implied repeal, avoided in, 210-244. inconsistency avoided in, 182-209. injustice avoided in, 258-263. in pari materia, acts, referred to in, 43-47, 367. insensible enactments, 24. intent of maker to be effectuated by, 339. See Intention. interpretation, distinction between, and, 1, note 2. legislative declaration of, 365-377. See Interpreta- tion Clause. legislative, of constitution, 527-528. Lord Coke's rules of, 27 and note, 29, 103. new jurisdiction not extended nor confined by, 157. object of, 1, 2, 329, 339. paramount duty of judicial interpreter in, 329. penal laws, rules of, 337. periodically, act requiring something to be done, 394. personal liberty favored in, 339. plain language needs no, 4, 27, 507. policy not controlling of, 5. practical, of constitution, 527-528. statutes, 357-364. primary rule of, 2. purpose of statute to be carried out by, 29. redundant, no part of statute to be made, by, 23. same word, 41. subject and object, to harmonize with, 73. unreason, inconvenience, injustice, absurdity, avoided in, 245-266. usage, effect of in, 357-364, 527-528. ut magis valeat quam pereat, 265. words of statute control, 295 n. i (instructive knowledge, 105. notice, 117. < Jonsulting engineer, not a laborer or operative, 99. Contagious diseases (see Diseases) act, right of action for violation of, 471, 474. Contemporanea expositio est optima et furtissuna in lege, 357. INDEX. 787 I The reference is to sections.] CONTEMPORANEOUS acts, 43 n; circumstances, history and public opinion, 29. exposition, 357-364. of constitution, 527-528. drawn from work of digesters, 357 n. of clear statutes, 358. recent statutes, 359. age of usage to amount to, 359. limits of effect of, 361. Contempts, 419 and note. See Attachment. CONTESTED ELECTIONS (see Elections), construction of acts relating to, 419 n., 420 n., 527 n. statutory method of determining, exclusive, 433n. binds govern- ment, 433 n. requisites of petition in proceedings in, 434 n, 441 n. when court may declare vacancy in proceedings in, 419 n. proceedings in, not a civil case, suit, complaint or plea, 507 n. CONTEXT, comparison of, 27, 35-42, 72. See Repealed Portions. limits of rule requiring, 41. in construction of constitution, 514-516. correction of errors by, 39, 319. expansion of meaning by, 37. explanation of meaning by, 38. general words shown by, to be used in particular sense, 122 n. implied repeal prevented by, 183. inconsistency avoided by, 40. omission supplied by, 39. qualification of absolute words by, 43 n. restriction qf meaning by, 37, 115 n., 122 n., 216. Contingent remainders, 3. Continuance in office, 508 n. CONTINUANCE of summons, 10. refusal or granting of, not subject of exception, 125. of case, not a right, 486. CONTINUATION, when enactment to be construed as, 203 and note, 205. in spite of express re- peal, 222 and notes, repeal construed as, 367 n. of provision by re enactment, 205. See Re-enactment. of temporary act, effect of, on infringements, 489. Contract obligation, right or lien, 401 n. to sell, 139. Contractor, 122. CONTRACTS (see Annulment, Bid, Breach of Promise, Gaming Con- tract, Lowest Bidder, Mail Contract). and acts legal when made or done, not rendered illegal by subsequent statute, 488. avoidance of, on ground of illegality, a question of intention, 457-459. question of malum prohibitum or malum per se, in, 459. confederate bonds, 538. constitution, violating, 538. corporation officer's corrupt interest in, 458. discharge of obligation of, by statute rendering illegal, 268, 461-462. 788 inukx. [The reference is to seetionB.J CONTRACTS (continued). discharge of corporator from, with corporation, 461 n. disqualifying from making, strict construction of statute, 341. election expenses, to contribute to, 160. existing laws, presumed to have been made with reference to 274 n. form and execution of, strict construction of acts regulating, 348. prescribed by statute, 455. government, 450. illegal consideration, founded on, 451. acts, promoting, involved, growing out of, 452-453. purposes, for, 454. feature, when one makes whole, void, 460. performance of, statute rendering, illegal, 461-462. by reason of penalty, not legal by remission thereof, 488 n. illegality, party not privy to, 458. partial, 460. impairing of, presumption against construction permitting, 267- 270, 458. what not an unconstitutional, 461 n. by state constitution, 507 n. legislation, effect of, on, 461-462. new agreements superseding illegal, 459. office, to give deputation of, 452. origin of, taint in, 458, 459. particular party or result, effect on, of act affecting or declar- ing, 458. penalty, void by reason of, 455 n. personal qualification, absence of, in making, 456. power to make, involved in incorporation, 418. does not involve right to give obligation, 422. prison board, making of, by, 348. prohibited, under penalty, 450. when not void, 444. public officer interested in, 450. remoteness of taint of, 458, 459. repeal of statute, effect of on, in violation thereof, 488. revenue law, in fraud of, 450, 457. sale of goods, acts relating to, of, 345, 455. sealing of, when required, 439. statutes refer only to, made in state, 169. containing elements of, 354 n., 505. contravention of, in, 449-462. succession, for sales of future, 449. upholding of, contrary to statute, 457-459. void and illegal, distinction between, 449. waiver of statutory provision as to, 444. writing, act requiring certain, to be in, 98. Contradiction avoided in construction, 258 n., 295. Convenience, argument drawn from, 4, 245. See Public Safety and Con- venience. Convention, see Constitutional Convention. Conversion, act relating to fraudulent, 334. CONVEYANCE, construction of act validating, 115. valid as between parties, 118. lease not a, 145. not a mortgage, 145. construction of act making decree for deed operate as, 419 n. i.M)i:\. 78C [Tbe reference is to sections.] 'CONVEYANCE (continued). power of, not in person vested with land for public pur« poses, 4 '23. agreement to make, see Married Womkn. Convicted of felony, 284. CONVICTION, effect of prohibition of removal of, by certiorari, 11. former, when not evidence of knowledge of theft of goods, 20. act forbidding, on uncorroborated evidence of accomplice, 2S2. See LIMITATIONS. CONVICTS, imprisonment of, in place other than designated, 437. no private right of action for employment of, contrary to law, 474. See Property. Copartners, or joint or several obligors, or promissors, or contractors, 103. Copied statutes, see Transcribed Statutes. Copy, 18. COPY of instrument sued on, what meant by, 18. recognizance, when sufficient, 18. writ, when incompetent, 18. when substitute for original, 18, 105 n. requirement of original, not complied with by, 105 n. photograph of, 337. COPY-RIGHT LAWS, 115, 248, 335, 337, 434. See Any Part, Author, Reporter. photography, 112. foreigners, 176. Corn, act regulating sale of, 455. selling in sheaf, 494. Corporate, 25 1. buildings, 103. Corporations invested with the privilege of taking private property, &c, olS. possessing right or privilege to mine, purchase and sell coal, 139, 300. CORPORATIONS, affidavit by attorney of, 110. attachments, act giving, against foreign, 287. by-laws and ordinances of, 352 and note. capital stock of, what included in, 356. chartering of, act authorizing the, 353. citizens include, 159. classification of, for taxation, 519 n. constitutional provisions as to, 518, 519, 520, 524, 532. applicable to existing, 518 n. f 525. contracts of, acts relating to forms, &c, of, 434. when requirement of seal not abrogated, 118. creating, strict construction of acts, 354, 355. creation of, by implication, 417. directors of, meetings of, 352. bonds of, 438. election of, 438. division of one corporation into two, 112. fines and forfeitures in, 466. franchises claimed, construction of act requiring court to examine into, 114. grants to, not construed contrary to reason, &c, 251. implied reservations in, 251. implications and intendments in, 418. of power to hold and dispose of stock, 418 n. incorporation of, act providing that fact of, admitted, 282. inhabitant, when and when not, 91, 92. insolvency of, act relating to, prospective, 276. liability, act imposing joint and several, on trustees of, 261 7 ( JU INDEX. [The reference is to sections.] CORPORATIONS [continued). liability, act subjecting stockholders and directors to in- dividual, 350 n. implied repeal between acts relating to, of members of, '207. members, when discharged from, 461 n. name, constitutional provision enabling, to change, 518 n. See Change of Name. officers of, illegally interested in contracts of, 458. when act making, liable to payment of money penal, 331. organization, construction of act relating to, 208. persons, when, included under, 87, 89, 519. what only included under, 89, 167. powers, construction of acts granting, to, 354. not expressly given to, withheld, 398 and note, promoters of, contracts of, 450. prospectus, acts relating to, 137, 469. public, practical construction of statute relating to, 357 n. registry of mortgages, failure to keep, 438. removal of officers of, strict construction of act authoriz- ing, 351. repeal and re-enactment of incorporation act, effect of, 490. residence of, what is, 94. resident, when, not included by, 93. security, investment in prohibited, 458. special act for benefit of, not repealed by general, 229. charters of, not repealed by general laws, 229. stock book of, evidence of membership, 438. subscription, acts requiring payment of certain proportion of, 268. taxation of, 226. trustee in, cannot make others liable by own wrong, 267. ultra vires, acts of, 354. validating acts of, statute, 292. See Change op Name, Charter, Classification, Coal Company, Consolidation, Cumulative Voting, For- eign Corporation, Gas Company, Incorporation, Judicial Notice, Municipal Corporations, Pri- vate Acts, Proper County, Public Body. Railroad Company, Recognizance, Remedies, Shares, Stock, Stockholder. CORRECTIONS to accomplish purpose, 295. of omissions and erroneous insertions, 317. clerical errors, 319. See Elliptical Sentences, E)rroneous, Errors, Omissions. Costs, 226 n., 347 (Addenda). of prosecution, 63. COSTS, effect of act abolishing imprisonment on decree for payment of, 14. on appeal, 77. in slander, 221. certificate of judge for, 247 (Addenda). construction of act imposing on county where defendant is unable to pay, 63, 110. giving court right to decide as to, in lunacy pro- ceedings, 108. making, discretionary with court, 114, 149. withholding, where recovery not exceeding, &c, 296. allowing, 347. FNDEX. ?91 [The reference is to sections] COSTS (continued). construction of act increasing, 277. See Ex post facto. directing payment of, by, not to, whom, 420. relating to, in surety of peace cases, 63. effect of making, to follow event, Ac., 199. repeal of statute on liability for, 479. when government liable for, 166. general rule of court as to, when bad, 149. not to be imposed on successful defendant, 114. acts relating to, whether prospective or retrospective, 277, 286. mere creatures of statute, 347. rule requiring non-resident to secure, when impliedly abolished, 417. See Final, Partition. Co-tenant, effect on, of act relating to cutting of timber, 126. Cotton, taking of, 131. construction of act punishing fraudulent increase of weight of, 410. Councils, acts making, judges of election, &c, of members, 420, 527 n. Counsel, see Attorney. Counsel fees, see Partition. Counterfeiting, 337, 386. Counterfeiting and having in his possession, 305. Counties and townships, 518. County, 365 n. County commissioners, agreements by, not laws, 507. courts, .156. division of, 336, 536. and change of name, effect on special laws, 112. new, effect of creation of, 112n. officers, who are, 532, and note. seat, construction of acts relating to change and removal of, 530. taxation, poor district and, not identical for purposes of, 14. See Bonds, Debt, Municipalities. Country, 75. Coupling of words of analogous meauing, 400. Court, 29. in which the action ivas brought, 219. COURTS, authority given to, wlien authority to judge at nisi prius, 29. construction, duty of, in, 4, 7, 18, 72, 329. of unreasonable, &c, statute by, 266. to be according to own judicial view, 360. how far departmental construction binds, 360, 361. decisions of, part of statute law, 1, note 1, 127 n. different, authorized to try an offence or issue, 218. duties imposed on, imperative, 435. federal and state, 364. function of, to interpret, not make or improve law, 4, 7, 72. ^ not to provide for defects, &c , of improper legislation, 18. in interpretation of unreasonable, Ac, statute, 266. to construe according to own judicial views, 360. impossibility arising from act of, or of clerk, 441, 442. powers of, to interfere with statute, 328 and note regulate procedure, limits of general, 351. none, to impose conditions additional to those im- posed by statute, 351. make rules and punish contempts, 419. procedure, act regulating in, imperative, 435. waiver of limitation as to time in, 445 and note, rules, strict construction of act authorizing, to make, 361. special jurisdiction, strict construction of act conferring, on, 160, 351. 792 INDEX. I'lu- rcfi.Tcnce is to section*. '. COURTS [continued). special powers, conferred on, by constitution, 526. stare decisis, how far binding on, 363. states, courts of different, follow each other, 364. technical const ruction in statute relating to, and to legal proceed- ings, 74. waiver as to procedure and practice in, 445. wisdom or justice of legislature, not to judge of, 72. See Certiorari, Costs, Discretion, Inferior Courts, Judicial Notice, Jurisdiction, Quo Waekanto, Reporter, Rules of Court. Courtesy, construction of ads relating to, 275 and note. effect of legislation upon inchoate right of, 281. Court-house, when not included in other works of internal improvement, 98. Court-martial, 388, 507 n. See Same Offence. Covenant to stand seized, when married woman not bound by, 123. Coverture, plea of, 149. Graft, 405. Crape veils, 83. Credible witness, 20 n. Creditors, 90. residing within this state, 94. Creditors, act relating to right of, to intervene, inapplicable to pending cause, 282. Credits, held property, 75 n. Crew, 90. Crime, 75. CRIME (see Accused, Incapacity, Misdemeanor, Offence), evil intent in, 129, 134. act done in assertion of right is not, 131. knowledge when essential to, 132, 134. committed outside of jurisdiction, 174. statute of limitation as to, changes in, 279. Crimes punishable in the state prison, 330 n. CRIMINAL law (see Courts, First Offence, Offences, Penal Laws) no waiver in, 446. statutes, insensible, 24. modification of, 295. trial, see Attachment, Continuance, Exception, Writ of Error. Crops, growing, when not property, 406. Cross-examination, who is party liable to, 77. Crossings, see Railroads, Road Crossings. Crown, see Government, State. Otii jtirisdictio data est, ea quoqne concessa esse videnlur, sine quibus jurisdictio explicari non potuit, 419. CUMULATIVE acts and remedies, 218-221. See Common Law Courts, Wills. penalties, 236, 241 n. procedure, 236. remedies, 218, 464 n., 466, 467, 469, 470. voting, 368 n., 536, 540. CURATIVE ACTS, construction of, 291, 293. See Acknowledgments. effect of, on pending writ of error, 284 n. as to school districts, 108. Currency, forbidden, 452. Current expenses of the year, 318. Curtilage, 79. CUSTOMS (see Special Customs), 223 and note, 362. controlled by statute, 361. INDEX. 793 [The reference is to sections.] CUSTOMS (continued). may control common law, 361. legislators cannot be shown to have known, 362. Dam, 181. Damage, 44, 120. to harbor, pier or dock, 121. DAMAGES, act allowing actual or vimlictive, held penal, 347 n. for change of grade, 434. repeal of act directing assessment of, 4S0. giving, after right perfected, 481. See Land Damages, Punitive Damages. Damnum absque injuria, 423. Date of issue, 295 n. Date, of statute, misreference to, 302. Scj Misreference. Day, 534. Day, fractions of, 389, 498, 539. See Fractions, Same Day. week, month, &c, 389. Dead animal, when mention of animal includes, 249 and note. Dealer, 98 u. Dean, see Exemption op Residence. DEATH of one party, effect of, on performance of statutory requirement by- other, 10, 441, 443. copartner, &c, not a discharge to others, 103. plaintiff, under affidavit of defence of law, 443. sentence, effect of repeal of statute on, 478. DEBATES upon passage of bill, 29, 31. in committee, 32, 68. constitutional convention, 510. Debt, 65, 74, 76, 507 n. See Borrow, Fictitious Debt. Mikicipalities. contracted, 367. due, 76. Debt, effect of grant of power to county commissioners to create, &c, 199. Debtors, see Absconding Debtors, Sheriff. Debts owing by foreigners, where taxable, 169 n., 174 n. Decisions of courts on statute, part of statute law, 1 n., 127 n. effect of change in, same as amendment, 1 n. DECLARATIONS of legislators, 30. legislative, of construction, 365, 377, 527-528. of intention, when overcome by subsequent act, 365. principles no indication that rule was different before, 374. in assumpsit, amendment of, 149. DECLARATORY clause, see Interpretation Clause. laws, construction of, J291, 293. statutes, 172. Decrees (see Orders) nisi, act extending time for making, absolute retro- spective, 286. Deed, 293. DEED, strict construction of act declaring, void, 341. in contravention of statute, 460. construction of conflicting acts as to locality of registration of, 189. See Attestation, Sheriff, Validating, Witnesses. Deeds executed and acknowledged in another stale in conformity with the laws of such state, 110. Defeat, of object of act, 6, 24, 265, 266, 335, 443. See Intention. Defects in enactment, court cannot rectify, 18. Defendant. 164 n. Defendant, appeal from judgment for, as exceeding, &c, 245. See Co-defendant. 794 INDEX. [The reference is to sections.] /< ft ndani or tenant, 164. Defendants, 251 n. Definition of statute, see Statute Law. DEFINITIONS in code, how treated, 40. of words by repealed acts, 48. statutory, 70, 108, 115, 365, and note. of words, &c., see the Particular Word, Phrase, &c., to be Construed. Degree of crime, effect of preservation of, 240. See Penalty, Quality. Delegated powers, exercise of, 352-353. delegation of, 352, and note. Delegation of powers, strict construction of acts making, 352, 353. See Mu- nicipalities. Demolition of buildings, act permitting, 103 n., 428. house, when not exclusive remedy for nuisance, 467. Demurrer, 290, 417 n. See Special Demurrer. Denial of providence and scriptures, 494. Departmental usage, 360, 361, 527. Departure from meaning not justified where act insensible, 24. See Change. Depending, 76. Deserters, 65. Deserting, 129. Desertion, 169 (Addenda), 380. Desertion, 337, 407. See Child, Married Women. act authorizing sale of property of husband guilty of, 152. Design, see Intention. Destroy, 79. Destruction, see Demolition, Fences. Determination and judgment, 420 n. Determine finally, 381 n. Detinue, 44. Devise, power to accept, involved in power to make, 427. Difference, see Change. Directly or indirectly, 338. Directors to act as a board, 429. See Bank Corporations, Railroad. of tbe poor, property held by, not property of county for taxation, 14. DIRECTORY and mandatory provisions, 431, 410. See Imperative. in constitutions, 536. act which is, as to principal, is, as to surety, 431 n. nature of power of courts to declare an act, 431. acts relating to performance of public duties when, 436. matters of procedure by public officers are, 437. direction to non-official persons may be, 438 n. duty, remedy for omission of, 440. DISABILITIES of sex only removed by act relating to voting, declaring that words of masculine gender include females, 115. cannot be tacked, 350 n. and limitations, acts creating, prospective, 279. construction of acts imposing, 341 and note. See Incapacity, Minors, Married Women, Wills. Discharge of minors, construction of act relating to, 322 n. See Convict. Disclosed, disclosure, 2)9. Discontinuance, held analogous to failure by reversal, &c, 417 n. Discount, 532 n. DISCRETION, when permissive words confer, 310, 311, 315. no writ of error to matter of, 125. as to opening judgments, 125. issuing writ of quo warranto, 125. change of venue, 314. rules as to, held not altered by statute, 125. INDEX. 795 [The reference is to sections.] DISCRETION (continued). limits of, conferred on officers, 148. conferred by authority to judges to make such order as to them should seem meet, 148. judicial, what is meant by, 147, 430. settled practice, when to control, 149. manner of exercise of, where intended to be exercised in every particular case, 149, 150. exercise of, in granting liquor licenses, 150 (Addenda). how to be exercised, 352, 428-429, 430. to be exercised honestly, 147. in a reasonable manner, 148. See Judicial Power, License, Liquors, Taxation. Discrimination on account of color, &c, in public places, 47. See Pvblic Place of Amusement. See Railroad, Tolls. Diseases, act relating to, held prospective, 271. See Contagious Diseases. Disinterested witness, 20 n. Dismissal of prosecution, see Prosecution. Disorderly persons, 213. Dispute as to the amount, 155. Disqualification of representatives and senators, 508 n. to sit as judge, see Judge. Distances, computation of, 395. Distillery, illegal construction of, 136. Distinct statutes, construction of act embodying, 42. DISTRESS, strict construction of act giving right of, 351. See Improve- ment, Removal of Goods. warrant, strict construction of acts authorizing, 344. act authorizing on proof of demand, &c, 428. oath required fur, 106. Distribution, see Percentage. Distributive application of words, see Reddendum Singula Singulis. District, 38. District attorney, right of, as to quo warranto, 418 n. courts, 377. Dividends, see Street Railway Company. Division of counties, see County. one corporation into two, 112. Divisions of statute, see Arrangement, Headings. Divorce law, with reference to notice, non-residence, &c, 169 (Addenda.) libel for, by minor wife, 17. Documents, see Production op Documents. Dogs, act relating to, 246. included in other animals, 299. Domestic distilled spirits, 83 n. Domestic servants, when not laborers, 405. Done, 104. D >uble value, act allowing, 332. See Punitive Damages. Doubt, see Ambiguity, Reasonable Doubt. Dower, 3. Dower, construction of act relating to, 275 and note. effect of legislation upon inchoate right of, 281 n. Draft, 79. Draft, construction of act making presentment of, purporting to be endorsed, sufficient authority to banker to pay, 137. Drain, what involved in power to dig up street to make, 424. Draw-bridge, duty of owner as to, 424. Drawing and quartering, 494. Driver, 338. 796 INDEX. [The reference is to sections.] Driving and riding, construction of act relating to furious, 338. Drove, 24. Drug, act punishing administration of noxious, 334. See Administer, Cause to be Taken. Drunkenness (see INTOXICATION) on nun premises, 258. Ducking stool, 49 1. 495 n. Due, 76. process of law, 428 n., 507. Duelling, offence of, under constitution, 523 a., 531 n. 1> ing . . . successive weeks, 389. the continuance , 296. Duties, see Duty, Imperative and Directory, Obligations. Duties now by law to be performed bi/ deputy attorneys-general, 418 n. Duty, 401. DUTY, when imposition of, involves protection, 423. in one may imply, in another, 420. remedy for omission of directory, 440. or prohibition for benefit of particular person, right of action, 469. remedy for non-performance of new, 470. violation of, to particular class, no right of action to others, 471. special injury necessary to sustain action for breach of public, 473. remoteness of injury for breach of public, 473. remedies for breach of public, see Implied Remedies, Right op Action. Dwelling, 94, 350. house, 249 and note. shop, warehouse or counting-house, 405. Dwells or carries on his business, 401. Dyeing, see Seeds. Each, 254. and every year, 209. Earlier legislation, eflect of, in construction, 43 and note. cognate acts, 365. Earnings (see Married Women) do not belong to creditors, 248 and note. Easements, 10, 12, 79 (Addenda), 251. Eavesdroppers, 494. Editor, see Newspaper. EFFECT to be given to every word, &c, 23, 413. of rule of strict construction, 330, 339. See Commencement, Consequences. Eight-hour law, 268, 459 n. hours, omission of stipulation as to, in contracts, 208. Either in the penitentiary or the state prison, 443. Ejectment against corporations taking laud, 154 n. See Improvement, Mort- gage. Ejusdem generis, rule as to understanding of words as, 186, 405-411. ELECTION, see Ballot-boxes, Change op Date, Contested Election, Corporations, Cumulative Voting, Municipalities, Polls, Primary Election, Re-election, Registry List, Voting. appointment is not, 508 n. expenses, contract to contribute to, 460. Election law, 335 n., 340 n., 508. ELECTION law, const ruction of, 333. officers, duty of, to be present and provide voting papers, 425. liability of, to suit for breach of duty, 469. Elections, 100. ELECTIONS not embraced in proceedings, 74. acts authorizing, mean only on lawful days, 114. INDKX. 797 [The reference is to sections.] ELECTIONS {continued). candidate acting as returning officer of, ineligible, 114. act relating to contested, of members of legislature, 155, 181. state bound by laws relating to, 167, 433 n. construction of act relating to contested, 381 n., 419 n., 420 n., 433 n. provisions as to manner of, directory, 438. of pom- guardians, held directory, 437. . qualification of voters, imperative, 432. construction of penal acts relating to, 334. constitutional provision, that, shall be by ballot, 520. on same day, 539. of known ineligible person, see Candidate. without registration, see Registry. Electors, 434 n. See Townships. Elementary rule of construction, 2. Elevator, floating, held a vessel, 103. Eligibility, 114. Elimination of words, 301-302. See Surplusage. Elliptical sentences, treatment of, 318. Embankment, see Highway. Embezzled government stores, liability for having, in possession, 132. Embezzlement, 334, 470. Emergency, 421. clause, 536. EMINENT DOMAIN, right of, how exercised, 154«., 423. limitations upon, 161-162. constitutional provision as to compensation for exercise of, 518, 520. strict construction allowing seizure of property under, 343. See Remedies. Emoluments, 508. See Officers. Enabling act, see Married Women, Validating. Enacting clause, mutilation of, 494 n. Enactments contrary to constitution, 180, 538. See Acts, Bills, Constitutional, Construction, Liberal Construc- tion, Statutes, Strict Construction. End, 348. Endeavor to procure the return, 338. Enemv, trading with, 136. Enfeoff, 79 7i. Enyaged in navigation, 95 n. Engineer, unlicensed, 456. English acts in pari materia, 53 n. construction of statutes copied from, 371. Engraving of painting, photograph of, 337. Enlistment acts, 29. See Discharge. Enumeration, effect of, 397, 398, 513. Entitled, 114 n., 334 and note, 385 n. Entering or being, 382. EQUITABLE construction, in sense of liberal, 110 n., 320-321. strict sense, 322-325. of ancient statute, 322-323. inapplicable to penal statute and arbitrary regu- lation of public policy, 323, 329. of modern statutes, 324, 325. instance of, 305. of acts relating to procedure and practice, 327, 417 n. 798 ixdex. [The reference is to sections.] EQUITABLE (continued). construction, principle of, discredited, 325. established, of one statute, applied to another, 326. doctrines, statute presumed framed with reference to, 32-3. extension of penal acts inadmissible, 329. restriction of modern statute, 321-325. EQUITY, not to control construction, 4. See Injustice. when act construed in consonance with, 251. acta contrary to natural, 328. of statute, see Equitable Construction. proceedings in, included by actions, 77, 168. rule of construction same in courts of, as at law, 325 n. courts, jurisdiction of, when not taken away, 151. Equity of redemption, 403. Equivocation, see Ambiguity. Erecting, 140. Erection, 140n., 405 n. ERRONEOUS assumption by legislature may have force of law, 376-377. insertions, correction of, 317. See Omissions. opinion, legislative intimation of, 122, 372-376. expression of, in language competent to make, law, 376. order, expired, not reversed, 441 n. recitals, 375. See Misrecitals. reference in statute to length of street, 122. Error, see Writ of Error. Errors (see Clerical Errors, Omissions) in figures not corrected, 16. context may correct. 39. Escape, 127 n. See Prisoner. Escape, suit against sheriff' for, 159. Essence, of enactment, things not of the, 436. See DIRECTORY. Estate, interest or lien, 299. of the wife, 1 23. ESTOPPEL in pais, applied to municipality, 165 n. from claiming benefit of statute, 448. constitutional provisions, 537. Etymological propriety of language not always followed, 73. EVASION, construction to prevent, 138-145. permitting, inadmissible, 329. facilitating, when required, 252. keeping outside of act is not, 144. presumption against, of constitutional provision, 521. See SPECIAL Legislation. Every bond and obligation, 381. case, 115n. company or association whatever, 44. conveyance, 1 15. inhabitant, 97. matter in dispute, 118. person, 115, 256, 258. found drunk on licensed premises, 258. offending, 254. tenant in tail, 227. town in the state, 228. warrant of attorney, 116. writing, 315. EVIDENCE of extrinsic matter in interpretation of statute, 28. affidavit of defence may be given in. 417. answer in cbancery may be given in, 417. power to hear, implied, 419 n. INDEX. 799 [The reference is to sections.] EVIDENCE (continued). construction of act making maps satisfactory, of certain mat- ters, 116. declaring specific effect of certain deeds, 124. changing rules of, 128. making comptroller's certificate, of amount due, 181. act relating to, held not to affect pending cause, 282. to affect pending cause, 284, 287. whether change of rules of, applies to pending cause, 284 n. effect of constitutional provision requiring accused to be con- fronted with witnesses, on, 520. See Adverse Possession, Conviction, Self-Criminating, Wit- nesses. Examination of long account, 155. Ex antecedent ib us el consequentibus fit optima interpretatio, 35. Excavation, see Highway. Exceeds, 245. Except as hereinafter mentioned, 184 n. EXCEPTION (see Bill op Lading), must be negatived in pleading, 184n. of contract relating to sale of goods includes guarantee, 345. not to be deemed a repeal, 216, particular provision deemed, to general, 111, 216. express, shows words to be used in wide sense, 408. of two out of skxty counties in act, and the like, 507 n. Exceptional cases not to be controlling, 263 n. Exceptions to any decision, 125. EXCEPTIONS, none to be made by construction, 17. See Insane, Minors. of persons under incapacity from statute creating crimes, 130. required to make act constitutional, 179. by construction in favor of infants, 249. saving clauses and provisos, 184, 186. See Savings, &c. construction of, 186, 343, 345. in criminal cases, 125. constitution, 526. strict construction of acts creating, from recognized liabili- ties, 350. from statute of limitations, 343. strengthen, and enumeration weakens, &c, 398, 533. Excess of state power, presumption against, in state constitution, 523. Exchange, see Municipalities; Sell. Exclusive, 349. jurisdiction, 152 n. See Jurisdiction, Retrospection. EXCLUSIVE rule, implied repeal by acts designated to furnish, 200, 231. statutory remedies and jurisdictions, 154, 466, 470, 433 n. remedy against state is, 154. Excuse, statute making an act a crime impliedly admits, 129. Executed, 44. Execution, act forbidding denial of, except after affidavit, &c, 403 n. See Contract. Executions, act relating to, prospective, 276, 289., held applicable to pending causes, 286. See Attachment, Stay, Strict Construction. Executive, effect of signature by, of bill repealed, 190. See Vacancies. Executive usage, 360. See Departmental Usage. EXECUTORS AND ADMINISTRATORS (see Administrator), omission in statute, working hardship as to, 19. when exempt from giving bail on appeal, 44. when not trustees, 122. See Jurisdiction. not within affidavit of defence laws, 249. 800 INDEX. [The reference is to sections.] EXECUTORS AND ADMINISTRATORS (continued). exception of, from statute of limitations, 250. of persons dying abroad, included in after they return, 296. Executory, see Inchoate Right. Exemption, construction of act relating to, from payment of tithes, 65. from taxation, not exemption from municipal assessments, 101. strict construction of act creating, 356. when act for partial, liberally construed, 356. construction of a particular, 45. common burdens, strict construction of act conferring, 356. of places of religious worship, 95 and note, 356. ship-owners, 98. public property, 103 and note, swine, 249. tools, 261. debtor's property, 120, 350. to widow and family, 52, 100, 218. act giving, to execution debtor, decides nothing as to title, 120. not applied retrospectively, 37. claim for, when to be made, 52. by particular, not removed by general, act, 221 and note, express, of one is not inclusive of another, 374. subsequently acquired property falls under original, 417. by implication, 376. of residence when implied, 420. waiver of statutory, 4 14. regulations of act conferring, imperative, 434. See Attachment, Common Carriers, Married Women, Occu- pier, Wages. Existing law, See Presumption. Existing railroad corporations, 112. Existing rule, effect of express enactment of, 374, 386. constitutional provision not construed as useless repetition of, 520. Exoneration, see EXEMPTION. Expansion (see Extension) of particular terra by context, 37. Ex parte proceedings, notice required in, 262. Expelled pilot not a pilot, 11. Expenses, act directing payment by a certain party, but not to whom, 420. Expiration of time for enforcing a right, when loss of right, 468. repealing statute, effect of, 475. Explanatory, act not to be violently construed as merely, 222. See Declaratory Act, Interpretation Clause. Ex post facto laws, 507. law, what is, 277. when act increasing costs is, 277. Express enactment of existing rule, 374, 386. Ernressio unius, &c, 216 »., 374, 397-399, 398 n., 533. EXPRESSIONS of opinion by legislators, 30. frequently used in statutes, some, 388-395. general, following several words, 414. in middle of clause, 415. See Change of Language, Particular Expression, Samb Phraseology. Erpressum facit cessare taciturn, 424. Extend, extended, 241. Extended meaning given to words of remedial act, 107, 112. EXTENSION to matters not within language, limit of, 110. of remedial acts to new things, 112. INDEX. 801 [The reference is to sections.] EXTENSION (continued). _ to matters within intention, instance of, 417 n. See Action, Association. of constitutional language by reference to subject matter and object, 518-519. External circumstances in construction, 27-34, 509-510. facts, evidence of, 28. EXTRA-TERRITORIAL FORCE, of statutes, question of, 169-170. effect of presumption against, 335. of constitution, 523 and note. Extra territorium jus dicenti impune non paretur, 169. Extrinsic, see External. Factories, who is mvner of, 96. Factors, when held not acting in a fiduciary capacity, 90. act, construction of, 118. Facultative, see Permissive. Failure of justice, effect of, on construction, 6, 155. False pretence, 338. signals, when making, is obstruction of railroad, 337. Falsification of claim, what discrepancy is not, 119. Family, 100, 103. of husband and wife, 378. any married woman, 378. Farmers, 98. Farming lands, see Rural Lands. Father, 337. See Maintenance, Putative Father. FEDERAL and state courts, 364. See Congress. courts, act declaring laws of states the rule of decision in, 122. relating to suits for fines, &c, in, 416. decisions of, controlling in interpretation of federal con- stitution, 523 n. constitution, corporations persons under, 519. difference between construction of, and of state con- stitution, 535. See Amendments. Fee simple, 120. See Grant in Fee, &c. Fees, 54 n. Fees, agreement to pay attorney, 122. offence of taking illegal, 119. Sc-e Costs, Officers, Partition. Felons and other malefactors and offenders against the law, 65. FELONY, act done in assertion of right is not, 131. incapacity by reason of, to be witness, 240. effect of declaring offence a, 417. See Children, Fines and Forfeitures, Quality of Offence. Female, see Masculine, Minors. Feme covert, see Married Women. sole trader, see Married Women. Fence dangerous machinery, construction of acts requiring owner to, 218. Fences, construction of act requiring railroad company to make, 103, 220 n. punishing destruction of, 264. Fertilizers, sale of, in violation of act, 455. Fictitious debt, creation of, to evade statute of mortmain, 140. Fiduciary capacity, 90. Figures, see Ekror. Filing of complaint and notice, 29. Fined, 74, loin., 420 n. _ Final, effect of making judgment of court, upon execution for costs, 420. Finally, 381 n. 51 802 INDEX. [The reference is to sections.] Fine and imprisonment, 304. FINE AND IMPRISONMENT, statute imposing, leaves no discretion to court, 15. when not both to be imposed, 44. act punishable by, 464. FINES and forfeitures, limitation of time for recovering, inapplicable to murder, &c, 126. power to impose of, not less than, 397 n. right of compelling payment by, not exclusive of suit, 466. See Building Association. FIRE (see Railroads) right to destroy buildings to prevent spread of, 103 and note, construction of act giving compensation for exercise of, 103 and note, implication from grant of power to prevent and extinguish, 418. escape, action for injury from failure to ereet, 469. limits, ordinance establishing, in borough, 352. power of establishing, 434. See Erecting, Building. Firm name, use of & Co. in, 453. See Partnership, Pawnbroker. First offence, construction of acts prescribing penalty for, 214. Fish, grant of, in pond, 423. See Salmon. Fishing in tidal river, 131. non-tidal river, 134. Fitness of subject matter, general words restricted to, 86. Florida commissioners, act organizing, 118. Food, see Adulteration. For cause, 428. Forcible entry, 381. and detainer, suit for, 159. Foreclosure, see Insane, Mortgagor. Foreign, 514 n. FOREIGN attachment, see Attachment. corporations not persons, 89. residence of, 94. country, refusal of wife to follow husband to, 169 (Ad lenda I. funds not included in any public . . . securities, 335. held bonds, 169 n. state, see Warrant of Attorney. statute, adoption of construction by transcribing, 371. of, before amendment, 371 n. Foreign nations. 533 n. FOREIGNERS, 169. See Collateral Inheritance Tax. limits of jurisdiction over, 169, 174. rights, privileges, duties and status of, 174, 176, 177. real estate of, 174. remedies of, governed by lex fori, 177. right of, to take share of intestate person's property unaffected by act directing distribution to same person, &c . a- though it were real estate, 176 n Forever, 173. For frit ure, 3, 388. See Fines. FORFEITURE, act causing, of life estate, 122. strict construction of acts working, 343. infliction of, in one, is exclusive of, in other aspect, .'W7 «., 455 n. of lease, act allowing order for, 428. right of, not exclusive of other remedies, 466. See Corp > RATION. Forgery of bank notes, construction of act punishing, 247. INDEX. 803 [The reference is to sections.] Formalities (see Forms), when to be observed, 10. See Marriage. in judicial procedure, 435. Former law, see Earlier Legislation. FORMS (see Contracts, Strict Construction), given in schedule, 71. courts look at substance, not at, 138. of enactment prescribed by constitution, 536. For the use of the workhouse, 73. Forthwith, 388. For years, 320. Found in possession, 132 n. Founded on a contract made, 367. Fractions of a day, 189 n., 389, 498, 539. week, 389. Frame buildings, 140, and note. Fraud to invalidate marriage, 3. Fraud, right to recover lands on ground of, 117. 8ee Bona Fides, Limitations, Revenue. FRAUDS, right of state to prosecute claim on account of, in connection with a railroad not surrendered by act confirming sale of road and title of purchaser, 119. statutes of, 269, 328, 348. acts to suppress, 333. Fraudulent and void as against the assignees, 378. transfer of property, 365. Fraudulent removal, see Removal. use, not within grant of power, 146. Freehold clear of all encumbrances, 102. estate, 79 (Addenda). Freight, 350 [Addenda). French text, 28 n. From, 28 n, 101, 249, 391. and after the passage, 238 n. the date, 391. day of the date, 391. Fully and distinctly, 536. Functions of the court in interpretation of statutes, see CoTJRT. legislature, see Presumption. Furnaces, see Smoke. FUTURE date, construction of act limited, take effect at a, 272, 284, 499. discounts, mortgage to national bank to secure, 450. legislatures, see Legislature, Presumption. tense, preseut operation in spite of, 82. Futures, 138. Gambler not entitled to reimbursement out of proceeds of recognizance, 473. Gambling, see Wager. Game laws, 296, 301, 337. GAMING (see Wager) contracts, 269, 449. suit for money lost at, is suit of civil nature, 159. act allowing loser or any other person to recover money lost at, 385 n. recovery of money lost at, 387. expiration of time for suing for money lost at, 468. table kept by agent, 135. in his house or premises, 252. laws, 333, 337, 338, 406, 411, 452 place occupied for, 411. Garnishee process, act allowing justice of the peace to issue, retrospective, 287. act extending time for filing answer by, retrospective, 288. Gas companies, 353. H04 iNDi:\. [The reierenoe is to sections.] <; : i- company, fouling of water by, 133, 241. i ; iti s, see Railroads. Gender, see Masculine. General — public, 502 n. GENERAL ACTS read into special charters, 56. in terms applicable to subject of special, 232. incorporation of provisions of, in act on particular sub- ject, 233. and particular enactment on same subject in same act, 399. intent, 111,216. provisions in constitution, 515 n. and special acts, 223, 233. no implied repeal between, in spite of repealing clause, 2:23. conflict between, merely apparent, 226. when former repeals latter by implication, 230, 232. words, restricting effect of association of, 396. clause following several, to which it is equally applicable, 532. expression following several words, &c, 414, 532. clauses, 414. at end of section, 414. in middle of clause, 415. intent not excluded by particular expression, 111, 216. language restricted to conform witli constitution, 179. See Terms. by reference to subject matter and object, 86, 101. to specific purpose shown by context, 37, 216. so as not to interfere with special laws, 228 and note, exception to, in favor of infant, 249. legislation on particular subject yields to special legislation thereon, 399 n. manager not a laborer, 99. provisions not defeated by narrower subsidiary ones, 111. effect of specific and particular, upon, 210. construction of act relating to interpretation of, 329 n. restrictive provisions at end of series of sections, 414. rules, see Costs, License. terms, limitation of, by context, 37. See Language, Words. to particular parties, 137. so as not to violate international law, 174. produce injustice, 258. include government, 161. words, restriction to subject matter, 86, 101, 518, 519. See Lan- guage, Terms. by specific purpose of act, 113, 137. context and intention, 115n. preamble, see Preamble. include rare cases, 263 n. controlled by asscciated specifications, 400. to receive full and natural meaning, 405. General election, 514. Gencralia specialibus non deroganl, 223-233. Generic words added to specific, 405-411. Genus includes new species, 112. Gift, 79 n , 103, 145 and note. delivery or transfer, 400. Gift enterprise, 454. prohibition of sale does not prohibit, 145. INDEX. 805 [The reference is to sections.] Girl under sixteen, abduction of, 131, 133. Give. 80. Given, 338. Go, 75 n. Gold or silver, when not included by metals, 412. Gone to sea, 12. Good faith, see Bona Fides. Goods, 54, 90, 118. chattels, lands, tenements or hereditaments, 414. and merchandise, 400. or merchandise, 127. wares and merchandise, 400. GOVERNMENT (see State), when included by person, 89 n. not included in general terms of statute, 161. , taxing acts, 163. act taking away certiorari, 164. statute of limitations, 164. when included in statute of limitations, 164. statutes, 166, 167. though not named, 167, 168. bound by statute relative to elections, 167, 433 n. when engaged in business, 167. as nominal plaintiff, 164. by constitution, 523. whether affected by prescription, 164, notes 70, 78. usage, 361. grantee of, whether bound by statute of limitations, 164. statutes allowing suit against, 168. taxing provisions, construed most strongly against, 345. contracts, 449, 450. Governmental usage, 360, see Departmental Usage. Governor (see Executive, Vacancies) effect of message or proclamation of, in construction of statute, 68 ft. Grade, see Street. GRADING, act relating to, 436. power of, how exercised, 434. recovery of damages for changes in, 434. tax, see Exemption. Grain, 103. GRAMMATICAL order of sentences, how far to be adopted, 2. construction doubtful, 4. propriety of language not always followed, 73, 81, 82. construction, when departed from, 113. rejected to accomplish purpose, 295. strict, sacrificed to intent, 414. rule as to reference to last antecedent, 414,532. sense, language of constitution to be read in, 507. Grandchildren included in children, 80, 321. Grandmother, see Married Women. Grant, 79 and note, and Addenda. Grant, bargain and sell, SO. in fee or of a freehold estate, 79 (Addenda). GRANT of land held adversely, act annulling, does not invalidate whole instrument, 118. covered by water, act extending city limits over navigable waters for civil and criminal jurisdiction, is not, 122. by matter of record, 75 Gratuitous services, strict construction of act requiring, 345. Graveyard, running street through, 225. See Cemetery. Greater part of them in interest, 13. 806 INDEX. [The reference is to sections.] ' . ttnd rents, 80. Ground rents, 342. Grounds, see Reasons. Guarantee, see Charter-Party, Exemption. ( ruardian, see Tru.st. ml litem, see MARRIED Women. Guilty mind, distinction between mens rea and, 136. Gunpowder, liability for carrying, contrary to act, 132. Habeas corpus, incident to new proceedings, 154. Hackney carriage, 378. Half-year, 389. Hardship, no reason for supplying omission in statute, 19. consideration of, in construction, 251, 263, 2(56, 507. See Equity, Inconvenience, Injustice. Harmonizing all parts of act, 40, H2, 210. constitution, 515. Headings of chapters, articles, sections, effect in construction, 69, 70, 512. Hearing and notice required, 428. See Removal. Heir preferred by literal construction to father, 11. Heirs, 77. Heirs and assigns, when synonymous witli legal representatives, 79. Held, 383. Hereafter, 196, 272 n., 381, 483, 489. made, 272. Hereditaments, 251. Herein provided, 294. Hereinbefore provided, 196 n. Heretqfo"e, 196 n., 272, 381 n., 489. HlUHWAY, what included in laying out of, 79. act giving damages for injuries from excavation or embankment on, 126. intent in obstructing immaterial, 133. not to be appropriated under right of eminent domain, 162. See Road, Street, Trespass, Turnpike. Himself, 106. His, 388 n. real estate, 249. HISTORY an element in construction, 29, 72, 295 n. See Public Embar- rassment. parliamentary, of statute, 30. See PARLIAMENTARY HISTORY, in construction of constitution, 509, 510, 518. Hoarding, 424. Hog-, running at large, 129. Hold, and dispose of, 418 n. Hole, see .Mine. 11 imestead, preemption, &c., rights, 116. act exempting, to debtor decides nothing as to title, 120. See EXEMPTION. Horse racing (see Wager), suit for recovery of money lost at, 159. entrance money for, 452. Horses, 381, (304 j. oxen, pigs and sheep, from whatever country they may come, 414 n. Hospitals, 76. Hotel, persons employed about, when not laborers, 405. Hounds, offence of keeping, to destroy game, 254. Hours, see FRACTIONS OF DAY, POLLS. // ruse, •"> I, 249 and note. Householder, 92. House, power to pull down walls of, 424. INDKX. '^07 [The reference is to sections. 1 Hauses of ill-lame, 388 re. Hume, warefonua, counting-house, shop or other building, 406. HUSBAND, not owner of wife's separate property, though occupying it, 96. as sucli, in custody of lunatic wife, not person having care, &c, 121. liability of, for wife's torts, when not changed by statute, 123._ debts of wife dam sola, act relieving, prospective, 275. after wife's death, 321. joinder of, in wife's deed, 434. See Courtesy, Desertion, Married Women, Mort- gage, Widow. and wife, provision that, shall not be required to testify against each other, 37"2. conveyances to, 520. murder, 434. Identification, external matters to be looked at for, 28. Identity of language, see Adoption, Intention, Cognate Acts, Language, Phraseology. Idiot, see Husband, Incapacity, Lunatic, Wife. Idle persons, 213. If an insolvent petition, 300. they should think fit, 315. IGNORANCE of law in civil matters, 1 re., 134 re. or misapprehension of law, 134. as a defence, 132, 134. when no defence, 383. excuse for selling adulterated food, 36. cutting timber on another's land in, 129. of pending suit, 129. See Knowledge. effect of legislature's, of force of former law, 207 and note. ILLEGAL and void, distinction between, 449. statute not construed to render legal what previous statute made, 126. acts legal when done not rendered, by subsequent statute, 488. consideration, 451. acts, contracts connected with, &c, 452-453. See Contracts. purpose, s;de for, 454. tax, see Taxes. voting, 334. Illegality of origin of contract, remoteness of, 458, 459. partial, 460. See Unconstitutional. Illegitimate offspring, when children, 77. daughter, 337. See Bastard, Legitimation, Married Women. Immediate antecedent, see Last Antecedent. Immediately, 247, 388. after verdict, 247. Impairing of contracts, see Contracts. IMPERATIVE, permissive words construed as, 306-317, 430. words construed as permissive, 316. when acts relating to judicial proceedings are, and when not, 435. acts relating to performance of public duties held not, 436. matters of procedure by public officers, held not, 437. and directory provisions, 431-440, 536. distinction between, 431. tests, 432-437. 808 INDKX. [The reference is to sections. j IMPERATIVE (continued). and directory provisions, effect of negative and affirmative words, 432. duty — privilege, 433. convenience and justice, 433. public inconvenience and private injury, 438-439. acts conferring powers, privileges, &c, 134. IMPLICATION, what is involved in statute by, is part of it, 417. incidents and consequences sanctioned by, 417. corporations, creation of, by, 417, duty arising by, from imposition of another, 425. duty on another, 426. grant of right to another, 427. jurisdiction, ouster of, by, 153. creation of, by, 155, 156. See Jurisdiction. lien, creation of, by, 417. offences by, see Offences. remedy by, 463, 474. repeal by, see Implied Repeal. right arising by, in one from grant of right to another, 427. taxation by, see Taxation, Taxes. IMPLICATIONS and intendments, 417-430, 535. not extended beyond what is necessary, 422. various, 420. what are not proper, 422 (354n.) IMPLIED amendment, see Amendment. assurance of protection in grant, &c, of power, duty, &c, 423. conditions in grant of judicial power, 428-429. enactment of rule from legislative assumption of its existence, 376- 377. exercise and expression of legislative judgment, 421. grant of powers, 418. negative in affirming statute, 199-209. obligations, 424. powers of corporations, 418. under constitution, 535. prohibition of uses of certificates of registry, 450. remedies, 463-474. where act prohibits or commands something public, 464. creates obligation and gives remedy in same section, 465-466. duty and gives remedy in different sec- tions, 467-468. remedies, where third persons interested in duty or prohibition, 469. for non-performance of new duty, &c , 470. where penalty recoverable by party aggrieved, 470. by action, limited to those within gist, 471-472. See Right of Action. repeal (see Later Acts, &c.), between parts of same act, 182-186. between acts passed at different sessions, 187. same session, 188. See Same Ses- sion. same day, 189. See Same Day. of statutes and parts of statutes omitted, see Omissions. constitutional requirements as to form of repeal inapplica- ble to, 191, 524 n. presumption against, 210-244. INDEX. 809 I The reference is to sections.] IMPLIED (continued). repeal, exceptions to avoid, 216. modifications to avoid, '215-217, 240 and note, restriction of language to avoid, 211-214, 397. suspension to avoid, 215 and note, degree of inconsistency required in order to, 210. question of, no absolute rule for determining, 188. is question of intent, 203. negatived by express repeal in later act, 47. particular repeal in same act, 203, 397. want of reference to earlier act, 239 n. effect of misapprehension or ignorance of legislature of former law, 207 and note, inconvenience and incongruity between acts, 208. expressed intent to repeal, 206. by act requiring less or more than former, 199. between acts establishing conflicting rights or liabilities, 207. granting power on different conditions, 207. by act intended to furnish exclusive rule, 200, 231. covering whole subject matter, 200-204, 230, 241-242. revisions and codifications, 201-203. inferred from later legislation, 209. by negative statutes, 198. See Negative Act. affirmative statutes, 199-209. whether amendment works, 195-196. by re-enactment, 194. See Re-enactment. unconstitutional act or clause, 192 and note. of common law, 201. laws deriving force from former connection with other state or nation, 204. limits of, 205. when general act is, of special, 230-232. of special municipal act by code, in spite of saving clause, 230. detached special acts by general substitute, 230. special act, effect of indication that legislature had m mind, 230. by general act intended to furnish exclusive rule, 231. in terms applying to its sub- ject matter, 232. of prior general, by later particular act, 216 and Addenda. between penal acts, 235-244. See Penal Act. by change in quality and incidents of offence, 238. degree of punishment, 239. penalty, 239-240. statute covering whole subject mat- ject matter, 241-242. none, where objects not identical, 235. proceedings cumulative, 236. from mere change in locality, &c, 237. distribution of penal- ty, 237. 810 INDEX. [The reference is to sections.] IMPLIED (continued). repeal, between penal acts, none, where no room to infer legisla- tive pardon, 238. change is towards leniency, 239. degree of crime preserved, 240. later act continues former, 242. question of, where later act gives qui tarn aciion, 241 and note, effect of doctrine of, based on idea of legislative pardon, 238, 478. revenue laws, 243. special laws, 234. none by later act of earlier, when, 183, 193. schedule, 197. subsequent removal of some evils provided against, 2U9. between acts where conflict merely apparent, 211-214. general act and act providing for single contin- gency, 212. relating to special object or clans, 223. and particular provision, 216. acts giving cumulative remedies, 218. affirmative acts without express or implied nega- tive, 218-222. by explanatory act, 222. in spite of express repeal, when, 222 and note, by general act of special act, 223-233. of provisions of general act incorporated in particular, by repeal of general, 233. where act prescribes effect, it is to have, 203, 397. reservation in giant to corporations, 251. Impossibilities, 441-443. Impounding of animals, construction of act relating to, 258. Impression, see Erroneous. Impressment of property, strict construction of act for, 343. act authorizing, 407. Imprisonment, 388. IMPK1SONMENT, effect of act abolishing, on decree for payment of costs, 14. attachment for contempt, 74. abolition of, for debt, 507 n. second, for .same offence, llti. making punishment less severe preferred, 330. not authorized by right to order distress, 350. power to inflict, of not less than, etc., 397 n. of appellant, 435. in place other than designated by statute, 437. act directing, either in penitentiary or state prison, 443. and fine, when court must impose both, 15. Improvement of street, 388 n. Improvements, 388 n. See Interivd Improvements. engines, &c, 400. Improvements, act giving tenant or husband benefit of, prospective, 275. public, legislature judge of necessity, &c, of, 421. See Assessments, Municipalities. In addition to, 372 n., 404. any other manner, 112, 335. way, 407. INDEX. 811 [The reference is to sections.] Inapplicability of procedure, 24. remedy to particular subject excludes it, 37. Incapacities, 240. Incapacity, persons under, excepted from statute creating crimes, 130. See Disability, Intoxication, Married Women, Minors, Wills. Inchoate rights, effect of legislation upon, 281 and notes, 290. INCIDENTS of prosecution and trial applicable to new offences, 112. common law proceedings extended to new proceedings, 154. statutory remedy follow extension of it to new matter, 417. and consequences included in specific purpose of statute, 4i7. See Implication. quality of offence, effect of change in, 238. Incivile est, nisi tota lege perspecta, una aliqua particuta ejus proposita, judicare vel respondere, 35. Inclosure, 388 re., 405. Include, 305 n. Income, 77 n. Incompetency to testify, construction of act removing, 124, 126. of testator, effect of act removing, on will made before, 120. Incongruity between acts, 203. INCONSISTENCY avoided by comparison of context, 40, 515. degree of, required for implied repeal, 210. See Implied Repeal. presumption against intended, 258. See Conflict. INCONVENIENCE in serving notice required by statute, 13. between acts, 2U8. effect on construction of presumption against, 251-257. See Imperative and Directory. effect on construction of presumption against, in con- stitution, 507, 524. literal meaning leading to, rejected, 295. kind and degree of, influencing construction, 251, 252. caution in applying argument from, 251. rarely happening, 263 n. See Convenience, Injustice, Mischief, Public Safety. Incorporated city or town, 321 n. Incorporated act, see Reference Act, Statute Embodying Distinct Acts. Incorporating act, effect on, of repeal of act incorporated, 492-493. INCORPORATION of town as city, effect on form of suit for penalty, 112. construction of general words of, 251. of general in special act, 233. provision of general act in act on particular subject, 233. See Corporation, Private Acts, Reference Act. Incorporeal hereditaments iucuided in hereditaments, 251. See Easement. Incorrect, see Erroneous. INCUMBRANCE, conveyance not an, 145. lease not an, 145. road when not an, 80. Incumbrances, 80. Indemnity, construction of acts providing, to citizens for injury by fran- chise, 108. Indenture, see Apprentice, Attorney. Index anirni sermo, 8. Indians, 95, 169, 250, 341 n., 514 n., 533 n. Indictment, 379 ; information, 18. INDICTMENT, when, lies for violation of statute, 463, 464. for failure to repair roads, 467. murder, 520. 812 INDEX. [The reference is to sections] INDICTMENTS, acts affecting, held retrospective, 288. prospective, 289. effect of repeal of statute authorizing, on, 478, 483. ami prosecutions brought or exhibited, 416 n. INDIVIDUAL hardship, 263, 266. legislators, views of, 30. liability, see Corporations, Partners, Stockholders. Indorsement, see Draft. ENDORSER with notice not protected by usury acts, 117. not competent to invalidate instrument to which, a party, 126. act depriving, of defence of usury prospective, 277. liability of, on note given for gaming consideration, to indorsee, 449 n. Ineligibility, act declaring, held prospective, 271. of candidate receiving majority of votes, see Candidate. Infants, see Disability, Incapacity, Minors, Wife. Inequality, see Taxation, Tolls. In fault, 47. Inferential, see Implied. Inferior does not include superior, 412-413. limit of rule, 413. Inferior courts, 530. INFERIOR courts, jurisdiction of, 152. not construed into a jurisdiction, 155. jurisdiction, see Justice of the Peace. Information, 18, 379 n. Infraudem legis facit, qui, salvia verbis legis, sententiam eju6 circumvenit, 138. Inhabitancy, wliat amounts to, 93. Inhabitant, 91, 92, 93, 97, 519. of the slate or usual resident therein, 93. or occupier, 162 n. Inhabited dwelling house, 103. house, 54. or occupied, 92. Inherit, 77. Inheritance, words of, when dispensed with, 14. In his care or within his power, 132. house or premises, 252. possession or his control, 267. INJUNCTION, 114, 4i9. See Obstruction. remedy by, when not taken away, 151 and note, application for, not within requirement of one month's notice, 258. Injuries to persons by collision, included under damage, 44. short of loss of life, not within provision relating to loss of life, 336. See Imperative and Directory. INJUSTICE, literal construction effecting an, 11. presumption against, 258-263, 524. to be avoided in construction, 258 n. literal meaning leading to, rejected, 295. Innkeepers, 434. See Publican. Inland navigation, 98. In law or in equity, 159. lieu of, 196. operation, 115, 385. pursuance of, 297. Innocent holder of note for gaming consideration, 449. INOPERATIVE, omissions rendering an act, 22. enactments, 21. See Inskn'SIBLE. when courts must construe act as, 266 and note. INDEX. 813 [Tbe reference is to sections.] SrJftse^HusBAND, Lunatic, Wife), mortgagor, no exception in favoi Insensible' (see Inoperative), act not to be , treated |«> 2 ^ Insignificant variations of language, 381, 383, 531. bee Change. Insolvency, 90 n. INSOLVENT, allowance to widow ot, lb. in Scotland, 494. laws, construction of, 300. Inspection of rates, act giving right of, to every inhabitant, 9/. Jnstantly, 388. lnslrume.nl of yarning, 406. Kr^, M INSURANCE companies, 108. See Premium Notes. liNouxv K acl requiring, to have certain amount secured on real estate, 102. policy of unlicensed foreign, 455 n., 458 n. laws, see Departmental Usage. policies assigned to, or taken (or benelit of wile, &c, 14. waiver of act entitling assignee to sue in own name, 444. on cargo of ship sailing contrary to law, 453. See Killing, Wager Policies. Intended, 337. Intendments, see Implications. Intent, see Intention, Meaning, Same Session INTENTION, supposed real, not to control plain language, 4-6 , £{ rols clauge of doi ,btful grammatical construction 295. what legislature intended to do, not what it has done, 72. not to be arrived at by speculation, 7. and language identical, 8, 509. ascertainment of, main purpose of construction, /yo. qualifying repealing clause, 43 n. to be sought in statute itself, 72. „„ Q „- to be carried out, if ascertainable, 43n., /2, 295, 329n 339, 507. no construction admissible when defeats obvious 329. apparent, to prevail over literal construction of language, 264. when discovered, prevails over all rules of construction, 060. constitution to be construed according to, 507. restriction of general language by. Hori. modification of language to meet, 295-319. analogous matters held to be within, 110, 327 n., ,41/. what is within, of makers, is within the law, 414 n. unexpresssed, 417, &c, 509. to establish a rule implied from erroneous assumption of its existence, 376-377. change of language, when not change ot, rfM-ofc- evil, when essential to offence, 119. See Incapacity. when element of crime, 129, 134. in obstructing highway immaterial, 133. good, when no excuse, 136. Construction of statute which would create guilt regardless of, 130n., 261. Intentionally neglect, 350 n. Interest or policy of the law, 128. .. , „f „„ M i„, INTEREST (see Usury), meaning of provisions requiring consent of greater part in, 13. adverse, not from same source. 15. disqualifies a man to be judge, 114, 520. act allowing addition of, 331. See PERCENTAGE. 814 INDEX. [The reference is t<> Beotions.] Interfering with rights of properly, 75. Intermeddle, 152. Intermediate act not repealed by re-enactment of earlier, 194. Internal improvt nu nt, 108. [INTERNATIONAL LAW, 169, 175,373. not presumed to be violated by statutes, 174. clear violation of, duty of courts as to, 175. Interpleader act, construction <>t', 126. Interpolations (see Additions), not allowed, 16, 295 n., 507. to accomplish intent of statute. 295, 296, 298-300. [NTERPRETA 1 [ON, definition of, 1, note 2. See Construction. Lord Coke's rules of, 27 and note, 29. clauses in statutes, .">li"> and note. Interpreter, when magistrate cannot take acknowledgment through, 12. Intestates (see FOREIGNERS, JUDGMENT, ORPHANS' COURT), act relatin«! to distribution of estates of, held retrospective, 288. In the execution of his duty, 133. office, 297. parish, 21. premises, 411. Intoxication (see DRUNKENNESS), when a defence, 130. See DISTILLERY, License, Liquors. Invalidating act, strict construction of, 341. Invoicing matters of account, 155 n. In which the action was brought, 219. Irreconcilable, see Implied Repeal. Is, 382. Issue, 73. Issued not read levied, 24. Ita lex scripta est, 507. It shall and may In: lawful, 308. be lawful, 306, 308, 311. Jack, prohibition against standing, without license, 139. Jail held an inhabited dwelling house, 103. Joinder of husband in wife's deed, 434 n. JOINT and several offences and penalties, 253-2">7. debtor, construction of act giving attachment against one and sum- mons against other, 1 14. provision that, shall not lose benefit of statute of limitations, 276. defendants, act giving, right to sever inapplicable to pending cause, 289 n. power, how exercised, 352. Joint heirs, 77. Journals of legislature, 33. See Judicial Notice, Opinions of Legisla- tors. appendix a part of, 33 n. JUDGE holding court affected by Sunday law, 90 n. no one can be, in his own case, 114, 520. when required to give his opinion, see Opinion. See Discretion, Election, Judicial, License, Minutes. Judges, succession of, under Pennsylvania constitution, 513 n., 514. Judgment, 77, 125, 344, 385. See Judgments. JUDGMENT not a proceeding commenced, 74. creditor not purchaser, 75. against intestate, Orphans' Court in Pennsylvania cannot de- termine who entitled to benefit of, 118. what is not, upon quo warranto, 125. when exceeds given amount, 245. INDEX. 815 [The reference is to sections.] JUDGMENT (continued). implied exercise and expression of legislative, 421. See Affidavit of Defence, Attorney, Court, Decrf.es, Final, Limitations, Orders, Rules of Court, Transfer, War- rant of Attorney. Judgment recovered, 77. upon any writ of quo warranto, 125. JUDGMENTS, opened, when may be transferred, 14. nndocketed, 19. revived by amicable proceedings, 125. acts allowing courts to open, 108. giving appeal from refusal of courts to open confessed, 125, 400 n. directing, against collectors for principal and interest, &c, 249. making, liens on decedent's lands, 249. forbidding execution of, prospective, 275. relating to, pro-pective, 276. authorizing on nil dicit extended to cognovit, 327. court to mark, satisfied, 344. transfer of, 249. execution on, 249. preference of, in distribution of intestate's estate, 412. JUDICIAL decisions part of statute law, In., 367. effect of unreported, under stare decisis, 368. See De- cisions, functions (see Court), presumption against intent to invade, 172. legislation, 8, 13. notice of historical surroundings of passage of act, 29. legislative journals, 33 n. resolutions, 501 n. discussion of, 501-504. statute requiring courts to take, retroactive, 501 n. powers, implied condition in grant of, 428, 429. exercised in accordance with rules of judicial procedure, 428. are judicial duties, 430. See Discretion. proceedings, waiver of limitation as to time in, 445 and note, sale, see Liens, Sale. usage, effect of, in construction, 358-359. JURISDICTION of state extends over ships and waters, 169, 174. acts relating to, held prospeciive, 151 and note, 271. retrospective, 286, 288. presumption as to ousting or creating, 151-160, 522. against summary, 158. construction of act not to give, by implication over Indians, 250. creation of, by implication, 155, 156, 377. enlargement of, by implication, 199. powers implied in grant of, 419. effect of usage as to, 358. doubts as to, solved in favor of, 157. not in act intended to confer, disregarded, 157. _ when not given by legislative assumption of existence, 373. given by such assumption, 377. new, avoidance of construction which would create, 155. not extended by construction, 157. or special, strict construction of act creating, 351 how to be exercised, 430. special, acts conferring, 160. 816 INDEX. [The reference is to sections.] JURISDICTION {continued). special, constitutional provision conferring, 526. given as between certain parties is confined to them, 118. ouster of, by implication, 153, 420 n. presumption against, by constitution, 522. conferred by statute in certain cases not taken away by general act, 22 1. construction of acts intended merely to apportion, 122. presumption against narrowing established, 122 n. to enforce execution of conveyance not taken away by act declaring decree for deed to operate as conveyance, 4l9n. certiorari for excess of, 152 and note. want of, not cured by act validating sales, 385. judgment, order, sales, &c., mean those made with, 385. acts void for want of, when not validated, 115. words going to, never directory, 432. cannot, be given otherwise than act directs, 443. conditioned on impossibility, 443. no waiver of want of, 447. See Attachment, Wages. estoppel against objection to, 447 n. construction of act making, depend on amount involved, 245. act affirming, of United States Supreme Court negatives as to matters not enumerated, 397. conferring, in all cases of trust arising under deeds, wills, &c, 122. effect of absence of, in first arrest, 116. See Exclusive Statutory Remedy, Failure op Justice, Florida Commission, Injunction, Justices op the Peace, Limited Jurisdiction, Orphans' Court, State. Jurisdictional powers, how exercised, 352, 430. See Discretion. JURORS, who is party entitled to challenge, 77. provisions relating to summoning of, directory, 435 n. writ of attaint against, for false verdict, 494. JURY, see Murder. Jus d'isponendi, see Jus Tenendi, Married Women. Just and convenient, 1 14. equitable, 406. Jus tenendi does not involve jus d'isponendi, 422, 423. See Public Officers. Justice, 117. JUSTICE (see Equity, Imperative and Directory, Injustice), acts re- lating to administration of, 108. failure of, effect of, on construction, 6, 155, 266. partial, 334. JUSTICE OF THE PEACE, 44, 114. and inferior courts, jurisdiction of, 152. appeal from judgment of, 247. civil jurisdiction of, 152. act foi bidding suit before, except in township of defendant's residence, 122. effect of death of, 10. increase of jurisdiction on finality of judgment, 112, 152 n. declaration of intent not to appeal from, 445. long and short summons by, 213. no jurisdiction in cases of libel and slander,. 405 n. notice to, before suit against, 297. INDEX. 817 [The reference is lo sections.] JUSTICE OF THE PEACE {amtinued , omission of seal of, to deed of apprentice, 10. power to punish contempt, 419 and note. refusal <>!', to administer affidavit, 136. when not protected in acts, 297. ouster of jurisdiction on affidavit that title of real estate is in question, 2 See Acknowledgment, Certiorari, Final, Garnishee Process, Inferior Courts, Limited Jurisdiction, Police Court, Power, Summons. Kept under proper control or destroyed, lilt). Killing of insured cattle, when justified, 103 n. Knowing it lo be intended, 337. Knowingly and wilfully, 119 n., 136. suffer, 378. KNOWLEDGE, when essential element of crime, 132-134. of piracy immaterial, 199. illegal purpose lor which goods bought, 454. See Constructive Knowledge, Ignorance. Known as government reservation, 15. Labor claims, what not assignment of, 350. Laborer, 99, 405. Laborers employed by subcontractor, 122. Lakes, navigation of the great, 98. Land, 35, 320, 38S and note, 396. in grant of right of entry upon, to railroad company, 3. Land damages, implied repeal between acts relating to, 201. warrants, construction of acts relating to, 212. Landlord, when not liable as owner, 96. and tenant proceedings, 250, 344, 382, 403. Landlord's warrant not process, 74. .See Distress Warrant. strict construction of act allowing, 344. Lands, 320, 414. and tenements, 320. rectories, advowsons, tithes, 211. Lands, act subjecting, to sale on execution, retrospective, 287. See Real kc'p ATP 1 LANGUAGE OF ACT, departure from* 8. basis of interpretation, 7. courts confined to, 295 n. and intent, the same, 8, 509. modification of, to meet intent, 295-319. ambiguity of, 25, 26. construed with aid of certain presumptions, 72. See Presumption. as applied to subject matter, to be followed, 72. meaning of, at date of enactment, 85. change of, see Change, < ounate Acts, Constitu- tion, Same Words. LARCENY, intoxication as defence, 130. reduction of grade of, 238. what is second commission of offence of, 284. See Felony. Last antecedent, reference of general expression to, 414, (see 81, 532). proviso restricted to, 1S6 (see 318). LATER acts and provisions repeal earlier inconsistent, 182, 183. when not repeal of earlier, 183, 193, 222. legislation, intent to repeal inferred from, 209. 52 818 INDEX. [The reference is to sections.] LATER (continued). act, construction of charter must accord with, 354. cognate act, 366. constitutional provisions in construction of constitution, 517. Law, 65, 507. of the land, 428 n., 507. or in equity, 159. —act, 493 7i. Law, reference to, means laws of that government only, 169 n. Existing Rule, Ignorance, Legislature, Statute Law. Lawful sense, words construed in, 385. ful, 306, 307. Lawfully begotten, 171. Lawyer, see Attorney. Laying out, 79. LEASE (see Real Estate), not a conveyance or incumbrance, 145. construction of act to relieve against forfeiture of, 280. for years and right of way not a bargain, sale, mortgage, &c, 407. selling liquor without license, 453. partial illegality of, 460. Leased estates, 14. Leave cattle without a keeper, 378. Left or placed on the premises, 249. Legacy, what not evasion of act imposing duty on, 144. See Collateral Inheritance Tax. Legal proceedings, see COURTS. Legal representatives, 79 and note. Leges extra territorium Jion obligant, 169. posteriores priores contrarias abrogant, 182. Legislation, legislature presumed to know previous, 53. LEGISLATIVE commmittees, reports, &c, of, 32. construction, see Construction, Interpretation Clause. of constitution, 527-528. declaration of construction, 365-377. functions and powers, see Presumptions. intimation of erroneous opinion, 372-376. journals, 33 and note. judgment, implied exercise and expression of, 421. pardon, effect of repeal based on idea of, 238, 478, 483. will to be ascertained from language, 7, 8. LEGISLATORS, constitutional provision as to pay of, 531. motives of, not inquired into, 31, 507 re. opinions of, 30. cannot be shown to have known existence of custom, 362. requirement of oath of allegiance, &c, from, 536. disqualification of, for appointment, 508 re. LEGISLATURE, effect of indicating that special act in mind of, at passage of general, 230. misapprehension or ignorance of, of former law, 207 and note, functions and powers of, see Presumptions. meaning of term as used by one, not conclusive on later, 54. members of, see Legislators. one cannot bind future, 173 and note, and Addenda. opinion of earlier not binding on future, 53. powers of, under state constitution, 535. practical construction of constitution by, 527. presumed not to intend unreasonableness, 245. injustice, 258-263. absurdity, 264-267. INDKX. 819 [The reference is to sections.] LEGISLATUKE (continued). presumed not to intend impairing of contraci or ;nl vantage from wrong, 267-270. to know the common law, 127 n. Be rise of words, 3. general principles of law, 367. previous course of legislation, 53. construction of previous laws, ." ; * i T . to mean what it has plainly said, I. public improvement, is judge of uecessity, A:c., of, 4H1. Legitimation of illegitimate child, effect of, ISO, 171. void marriages, construction of acts for, 108. Less than, 296. LETTER, nothing is within, which is not within spirit of law, 25. whatever is within intention of makers of law, is within, 414 n. extension beyond, 110. ■when reason to prevail over, li -"> S . See Literal. liability of master of steamboat for failure to deliver, 132. /,» vari facias, writ of, is process, 74. Levy, provisions relating to, imperative, 435. Lex contractus, 169, 174, 177. fori, 177. nil ' facit frustra, 441 n. jubet frustra, 441. non cogit ad impossibilia out inutilia, 441. vii nu seu inutilia, 441 n. intendit aliquid impossibile, 441 n. LIABILITY of Stockholder for assessments upon paid stock, 14. criminal, when more extensive than civil, 135 n. acts conflicting as to, 207. strict construction of act subjecting property of one to, for lia- bility of another, 34i!. creating exceptions from recognized, 350. See Bill of Lading, Common Carrier, Corporations, Exemp- tion, Libel, Occupier, Stockholder. Liable to be sued tor, 422. draft, 79. LIBEL, construction of act relating to, 304. civil and criminal liability for, 469. See Apology, Justice of the Peace, Newspaper, Slander. LIBERAL CONSTRUCTION (see Beneficial Construction), 103-112. meaning and effect of, 103, lt ( 7. when synonymous with equitable construc- tion, see Equitable (onstiu'ctiox. of remedial and publicly beneficial act, 79 n. See Fences. remedial ads, 107-109. required where narrow construction would make act unconstitutional, 178. forbidden where it would make act unconsti- tutional, 179. preferred to literal, where literal leads to absurdity, 264. of certain exceptions, see Exceptions. revenue laws, 346. mechanics' lien laws, 350 n. constiiuiion, 526. difference between strict and, 329. rule of, not abrogated by act requiring literal construction, 329 n. S-Jil [NDEX. [The reference is to sections.] Liberty, construction to favor, 330, 339. Libraries, constitutional provision for, 508. LICENSE, construction of provision that no, '-hall continue in force after January 31 si, 298. law not affected by criminal code passed at same session, 45. question of granting, a legislative, not a judicial question, 149. discretion as to granting, how exercised, 149, 150. when grounds of refusal must he stated, 14s, 125. provisions as to, held directory, 439. sales without, 456. dealings without, 157. not staling names uf all partners, 157. See Discretion, Lease, Liquok, Marriage, Municipalities, Wine- Grower. Lien, see Judgment. of debt, see Trust. LIENS, general act as to divesting of, by judicial sale, no repeal of special, 225. ' construction of act giving to workmen, &c, 127, 350 and note. act requiring recording of vendor's, prospective, 275. giving, for purchase money, held retrospective, 237. when impliedly created, 417. revival of, by ratification of suspended laws, 477 n. Life estate, see Forfeiture. Light and unjust, 1 19. Lighting streets, 418. Limitation of general terms by context, &c, see General. LIMITATIONS, plain meaning of language not to be subjected to, 17. conviction after bar of statute of, 9. whether defence of statute of, is vested right, 279. literal construction of statute of, 9. of appeal, 9. discovery of cause of action after bar of statute, 9. efiect of concealment of cause of action on, 9. implied or equitable exceptions from statute, 9 n., 324. act relating to judgment become dormant not an act of, 70. no exception from statute to be made by construction, 17. statute of, not suspended by war, 494. equitable restriction of, 324. extension of, 326. when binding on state, 164 and note. See Gov- ernment. whether of forum or of contract, 177 n. relating to indenture of paupers, 321 n. as to real rights extending to analogous cases, 327 n. applicable to one court adopted by other to avoid unreasonableness, 248. effect of, on right of dower, 275 n. retrospective operation of, 284, 287. prospective operation of, 279. 6trict construction of, 343. not astutely construed to take away defence, 416 n. exceptions in, liberal construction, 343. construction of, by usage, 358. whether application of, depends on form or sub- stance of act, 343. acknowledgment to take debt out of, 383. acts creating new, or changing existing, prospective, 279. extending period of, retrospective, 287. construction of two, 216. an exceptional, 250. INDKX. S21 [The reference is to sections.] LIMITATIONS {continued). of time in judicial proceedings, waiver of, 145 and note. See Acknowledgment, New Promise, Statute of Limi- tations. LIMITED jurisdiction, act conferring, construed liberally as to procedure, L08 n.. partnerships, included by any person or corporation, 87. strict construction of acts relating to, .ViO, 384. Limits, see City. LIQUOR, prohibition of all sale of, includes sale as medicine, 17, (see note), election on question of permitting sale of, not included in election. 100//. prohibition against selling during hours of religious service, 208. liability for selling, to minor, 132 n. sale of, by agent, 135. what is selling, without license, 139, 213. sale of, where licensing prohibited, is not sale without license, 213. offence of selling without license or on Sunday, 255. license for selling, to be drunk off premises only, 144. act empowering justices to alter hours for sale of, in any district, 150. prohibiting sale of, by sample, &c, 174 n. forbidding one convicted of felony to sell, 2s 1. punishing sale of, 304. giving damages to wife for sale of, to husband, 371 n. sale of, in one state for use in another, 454 and note. See Sale by Sample. implied repeal between acts relating to, 20-5, 239. none by act covering whole subject, oca, of act un- der which license might be granted to cer- tain time, 212. between certain acts relating to, 213, 214. of local act by general, 227. See Adulteration, Distillery, Drunkenness, Intoxication, Lease, Sunday, Wine LITERAL CONSTRUCTION (see Letter), 1-24. of constitution, 507-50S. followed at expense of intent, 10. though injustice result, 11. not avoided bv doctrine of secondary mean- ing, 244. to exclude rare case, 263 n. inadequacy and limits of, 25. when departed from, 113. rejected where absurd, 264. to accomplish purpose of act, 295n. interpretation of act requiring, 329 n. Loan of credit by municipalities, 521, 538. See Public Money. Loaning, when included in given, 338. Loans, 79. Local, 502 n., 507 n. LOCAL act as to liens, 225. acts, 502, 503. See Private Acts, Special Acts. strict construction of, o50. authorities, construction of acts d degating powers to, 352. meaning of terms used in statute, 84. option election held not an election, 100 n. act, 502 n. public acts, 502. repealing act, when a nullity, 216 n. statute, see Acts. 822 INDEX. [The reference is to sections.] Locomotives, 335. Logical consequences, see Consequences. implications limited to, 422. /. mg account, 155. L >ng and short summons, act relating to, 213. Lord Coke's rules of construction, 27 and note, 29. L t.I's d iy, see Sunday. /. is of life, 33(J. Loss of records by fire, 441 n. Lost instrument, what is not copy of, 18. Lottery or gift enterpri>e, 45 1 remedies under aci against, 467. Lowest bidder, 249, b'lA, 536. responsible bidder, 249. Luggage, w nver of act entitling passenger to carry so much, 444. LUNATICS, omission to provide for service on, not supplied, 19. ill-treatment of, by brother in charge, 121. See Husband. act providing new method for admission to hospital, does not change method of appointing committee, &c, 126. offence of receiving two or more, 133. lands of, see Real Estate. See Incapacity, Pauper, Wills. Made, 2S4. after the passage of this act, 284 n. or suffered to continue. 334. 'Magistrate, see Justice op the Peace. Magis valeat quam pereal, 265. Magna charta, 47. Magnates and noblemen, 400. Mail, what is not obstructing or retarding, 129. contracts, 449. Maimed soldiers, 115. Main intent, see General Intent, Same Session. Maintenance of parents or children, act empowering court to decree, does not relieve poor district, 115ra. See Married Women. Majority of the voters, 388 n. Make an agreement in writing, 248. by-laws, 3-54 n. good all damages, 1 20. losses to depositors, 120n. such order as they may see Jit, 315. Making . . . complaint, 247. Malefactors, 6-5. Malicious prosecution, action for, held property, 75 n. Malum prohibitum and malum per se, ■459. Man, 388 n. MANDAMUS to inferior court, when refused, 150 (Addenda). statute of limitations in, 164. when remedy by, ousted, 433 n. in addition to statutory remedy, 464 n. Mandatory and directory provisions, 431-440. See Imperative. Manors and other royalties, 412. .17 muficlures of silks, 83. M ip (see Evidence) used by legislature, when part of statute, 68. Margin, 138 n. See I rAMlNO, Wager. bond given by way of, 137. Marginal notes, effect of, in construction, 60. Marine corps not army, 75. IM.K.X. 82,3 [The reference is to sections.] .1/ iner, 90 n. M \UKI Mil;, wh&t fraud invalidates, 3. when, disqualifies female from voting, 115. laws relating i<>, have force only in state, 169. exception to this rule, 170. construction of act making subsequent, legitimation of children previously horn, 171. several acts relating to, without license, 221. act forbidding avoidance of, after death, !^0. relating to, 303. requiring certificate of consent to, of minors, 437. prescribing formalities of, 437. act prohibiting, between [ndians and whites, prospective, 279. See Breach of Promise, Divorce, Legitimation. relation, legitimate incidents of, not changed by acts enabling married women, 123. See IIu-i'.axk and Wife. MARRIED WOMEN (see Acknowledgment, Any Woman, Grant, Hus- band, Husband and Wife, Mortgage, Sole and Sep irate, Wifei, 47, 75 and note, 79, 96, 103, 115. acceptance of bill of exchange by, for payment of third party's debt, 139. acknowledgment by, certificate of, 10. necessity of separate, 10 n. by attorney in fact, 1*_'. through interpreter. 12. conveyance without, 139, 358 n. action, power of, does not involve liability to, 20. enable, to act as guardian ad litem, &c., 123. rights and forms of, governed by lex fori, 177. attachment against, 123. bastardize her issue, not competent to, as party, 128. bigamy, when guilty of, 133. borrow, power of, to, 418. capias against, 123. certificate, act requiring filing of, by, in business, 212. contracts of, 128 and note. right to make, does not involve right to give obligation, 422. conveyances by, statutory forms of, imperative, 434. copartnership, acts relating to right of, to enter into, 292. deeds of, act authorizing correction of mistakes in, 284 n. defective, 434. deserted, act empowering, to convey real estate, 281. earnings, statutory causes enabling, to do business and keep, 407. act giving, does not permit neglect of mari- tal duties. 422. enabling acts, liberal construction of, 127. apply to, before passage, 280. femes soles, legislature cannot make out of, 171. traders, 118. improvements, right to contract for, 418. joinder of husband, agreement to convey, without, 139. jus tenendi does not involve jua . Means of enforcement, statute implies, 463. See I u i-i.i ed Rem mm 6s. Measures, act concerning, operative only in state, 169. Buyer, Scales, Weights \m> Measures. ME< HANK S' LIEN against leasehold applies whether lease oral or writ- ten, 14. what notice required to subject property to, 78. who are laborers within statute for, 99 and note. implied repeal between acts relating to, 201. local act, not repealed by general, 228. for claims under contract made before act for, 280. not within judgments, 344. law, liberally construed, 127, 350 n. strictly construed, 350. construction of a, 405. waiver of limitation in favor of owner, 444. effect of repeal of, 480. See Structure. Medicine, liquor to be used as, 17 and note. Meeting, 1 1 o. Meetings of directors and other officers, 429. Members of corporations, see Corporations. Stockholders. legislature, see Legislators, Representatives, Senators. Mens rea, 129-138. See Guilty Mind, Ignorance, Intent, Knowledge. Merchandize, 127. Merchants, peddlers and privileges, 533. Merchants, usages among, .'>i>2 n. Merger of original act in amendment, 196. Message, see Governor. Metals, 412. Mileage, see Computation of Distances. Millet held to be grain, 103. Mine or pit held to be a structure, 73 n. Minerals under street, 372. MINORS not rendered competent by act requiring recognizances, 115. authorizing all persons to make wills, 115. included in any married female, 115. exception in favor of, by construction, 249. act forbidding suit on ratine. ition after majority of contract by, 280. prohibited employment of, in factories, 449. See Billiard Hall, Discharge, Exceptions, Liquor, Mar- riage. Minutes (see Journals), requirement of signature of, by judge, 437. Mirrors, see Plays. Misapplication of public moneys, prevention of, 151 n. See Public Money. Misapprehension of law, 134. by legislature, effect of, 207 and note. .Miscegenation, see Marriage. MISCHIEF, act not construed to work, 48 n. duty of court to construe statute so as to suppress, 103. all cases within are within remedial influence of penal act, 339. See Lord Cokes Rules, Public Mischief. Mischiefs of defective legislation, court cannot cure, 18. reference to, in construction of constitution, 51S. 826 INDKX. [The reference is to sections. 1 Mischievous effect of statute not controlled by construction, 6. enactment, see CONSEQUENCES. Misdemeanor, 75, 79. See Quality of Offence. Misdescription, see Street. Misrecitals, see M PREFERENCES. MISREFERENCES in amendment to section amended, 302. to date of statute, 302, 319 and note, and misrecitals in acts, 302. MISTAKE, not a willful offence, 119. not inserted l>y, 157. legislation founded on, 372-377. Mistress, conveyance bv married man to his. 376 n. MODERN STATUTES, equitable restriction of, 324, 325. usage in construction of, 359. tendency as to rule of stricl construction, 339. MODIFICATION to escape implied repeal, 215-217. difference between repeal-and, 240 n. of prior by later act, 2 10. criminal statutes, 295. language of statute, 295-319. See Reference, Trans- position. constitutions, 507 and note. Money, held property, 75 n. Moneyed corporation, 186. Monopolies, strict construction of acts creating, 349. Month, 389. MORTGAGE, foreclosure of, by advertisement where mortgagor insane, 17. when held alienating, 139. not an assignment, 75, 145. a conveyance, 145. included by deed, 293. act forbidding ejectment under, before foreclosure, 275. affecting wile's inchoate interest in husband's lands, con- strued as not affecting existing, 275 n. by wife for husband's debt, see Marrikd Women. to national batik, see National Bank. for purchase money, see Purchase Money. Mortgagee, held purchaser, 75 and note. only bona fide, protected by recording acts, 117. Mortgages, failure of corporation to keep registry of, 438. Mortgagors and mortgagees, act giving, right to join in petition for damages. 287. may waive statutory provision postponing suit on mortgage for one year, 444. Mortmain, statute of, 111, 140. See Bequests, Charities, Trusts. what dies not fall within statute of, 144. Mother (see Married Women i, evidence of, against putative father, 10. fraudulent removal of, of bastard, 141. MOTIVES of legislators, 31, 507 n. absence of corrupt, 134. act punishing without corrupt, 463. when no excuse, 136. Mouths of the Altamaha, 103. Multifariousness, see Bills, Title. Multiplicity of words, 386, 531. Municipal and other corporations and individuals, 518. corporation^, 508. MUNICIPAL corporations included under any borrower, 14. when not within constitutional provisions as to cor- ooiations, 532. INDEX. S-J7 [The reference La to sections 1 MUNICIPAL (continued). corporations not persons, 89, 1 65 ». included by plaintiff and defendant, 161 n. exempt from attachment process, 105n. authority, effect of change of, 247. sewers, act relating to, 437. See Officers, Ordinances. MUNICIPALITIES, act giving, right to regulate bay-windows, 261. bonds, prohibition against selling, at less than par, 139. See Bonus. borrow, power of, to, 418 n. involves right to give bonds, 422 n. boundaries, effect of extension of, 122, 420. charters, special, not repealed by general laws, 228. and special ads when repealed by general laws, 230 and note. amendment of, 507 n. See Amendment. credit, constitutional provisions against loaning, 521. damages against, act allowing, for loss of life, 277. elections of, act relating to sheriff's duty as to, 209. improvements by, assessments lor, on property holders, 101, 220, 352. notice of assessment for, see NOTICE, indebtedness of, constitutional provision as to increase of, 524, 532. insurance companies, right to claim percentage from, 281 n. liability for appropriation of property, 518. licensing vehicles, 352. limitations, statute of, 165. powers to straighten creek, 226. construction of act delegating, to, 351. implied from grant to, 418. of sale do not involve exchange or barter, 422. when to be exercised only on petition, 434. property of, not subject to eminent domain in corpor- ations, 162. railroads, right to donate funds in aid of, 352. subscribe for stock of, 427. special acts relating to, not repealed by general laws, 228. taxation of trades, etc., 407. vested rights as against slate, none, 284. wharf, duty of repairing, 4-4. See Assessments, Attachments, Boroughs, Classifica- tion, councils, Estoppel, Ordinances. Murder, 3, 75. Murder, provision that degree of, to be found by jury. 37, 219. no implied repeal between certain acts relating to, 23S. See Fines and Forfeitures, Husband-murder. Mutilation of enacting clause, 494. Mutiny, 129. Name, see Corporation, Omission, Partnership. NATIONAL BANK, act prohibiting loans in exceS9 of one-teuth of capital stock, 137, 459. not within any bank in a state law, 169 (Addenda). powers of, as to taking mor gages, 397, 450. eflect of excess of, 397, 450. 828 i n 1 1 e x . [The reference is to sections.] NATURAL equity, see EQUITY. gas companies, 350 {Addenda), 353. laws, see Pin .-i Mi-nox. Nature and cause, 520. characU r, -98. Navigable river, see Obstruction. Nat igating, 382. the ivaters of the stale. 262 n. NAVIGATION (see Sailing Rules) of the great lakes, 98. grant to build bridge dues not permit obstruction of, 251. by-laws relating to, 352. company, held a transportation company, 404. Navy not army, 75. Necessary, 524 n. Nearer or more commodious, 305. Nearest antecedent, see Last Antecedent. Nearest justice, 114. Negative statutes, implied repeal by, 198. See Implied Repeal. affirmative inter se, 217. Negligence, no implied protection for, 423. Negotiable instrument, sue Draft, Indorser. Neighborhood or family, 103. NEW (see Modern) duty or cause of action, exclusive remedy for, 154. jurisdiction not extended or confined by construction, 157. how exercised, 430. See Jurisdiction . liabilities, acts imposing, prospective, 277. offences of same class, time, &c, of trial, 112. remedies for exclusion, 470. proceedings, incidents of common law procedure extended to, 154 promise, 284. remedies not extended or confined by construction, 157. right, remedy given for enforcing, exclusive, 470. rule, introduction of, shows intent to repeal old, 201. things, extension of remedial statute to, 112. exclusion of, by rule of strict construction, 335. trial, 249. refusal of, in criminal case, not subject of exception, 125. act relating to, inapplicable to pending causes, 289. construction of act regulating, 299. NEWSPAPER, 345. See Apology, Religious Paper. proprietor and editor of, liable for libel in, 135. publication of intended application for charter in, 139. change in date of publication, 389. New street, 365 n. Next, 33, 247, 299, 489 n. See Last. appointed, 10. before some suit or action, 10. . . . most convenient, 247. of kin, 3, 77, 80 n. session, 351. Next of kin include only legitimate persons, 3. may be included b,v legal representatives, 79. Nitre, sweet spirits of, when not spirits, 83 n. No, 15, 216. court shall intermeddle, 152. such militiaman, 62. Nominal plaintiff, see GOVERNMENT. Non est inti i prc/.t/io, seil divinatio, qnaz recedit a litcra, 325. NON-RESIDENTS, construction of act giving jurisdiction between citizens and, 157. , INDEX. 829 L rhe reference ie to sections.] NON-RESIDENTS (conth,,, service on, 169 . Iddem security for costs, see COSTS. Non-performance, see Duty, IMPLIED Remedy, Rkmedy. Non-user, whether, can have effect of repeal, 194 495. Nor, 381. Noscuntur a sociis, 400-403, 532. Not, 157, 265, 302. exceeding, 296. in the penally payable and conditioned : bed by law, 110. less than, 291, 397 n. one, nor mure than three hundred dollars, 299. par, 139. Notary public, statute validating acts of, 292. Note not bad because bond required, 218. Notes, 418 n. Nothing in said act shall be construed, &c, 216. Notice, 74, 105/1., 330. left, etc., 35, 249. NOTICE, service of, means personal service, 74. means personal notice, 105 n. when personal intended, 74, 330. requited, 429. oral notice meant by, 78. required, 35. sufficient, 35 n. inconvenience in serving, when no excuse, 13. act requiring, by innkeeper imperative, 434. what is not, left or placed on the premises, 249. when not a right, 220. requirement of, in summary proceedings presumed, 262. acts curing defects in, 292. allowing constructive, 262. statutory service of, 131 n. See Non-RESIDENT. of action for anything done includes omission, 104. appeal, effect of omission to give, 11, 435. given by attorney, when sufficient, 105. effect of death of appellee on requirement of, 441, 443. may be waived, 445. assessments, 436. defect, when to be given, 424. expiration of time for redemption when excused, 441 n. intended application for borough charter, 139. needed repairs, when required, 424. objection to voter, 434 n. special meetings, 352, 429. See Change of Name, Computation op Time, Construction, Injunc- tion, Judicial Notice, Justice of the Peace, Publication, Religious Paper, Removal, Voter. Notice and complaint, 29. hearing, when required, 50 n., 428. Notify, 35 n., 78. Notwithstanding any act or thing whatsoever, 116. local custom, 230. Nova const itutio futuris formam imponere debet, non prceleHtis, 271. Noxious drug, see Drug. Now, 489 n. or hereafter, 276. NUISANCE (see Gas Companies, Smoke), common law remedy not re- pealed by penal statutes, 236. 830 INDEX. [The reference is to sections.] NUISANCE (continued). cumulative remedies for, 467. single punishment for, 244. construction of act authorizing abatement of, 385. master liable for commission of, by servant, 13if. action for, abated by statute legalizing, 283 u. prevention of, is not suppression of, •'>•">!. and void to "II intents and purposes, 209. NULLIFICATION OF STATUTE (see Defeat), to be avoided, 265. result of construction, 385. for want of form of procedure, 443. Nullum tempus ozcurrit rei publicce, 167. Number, see PLURAL, SINGULAR. Oath, 338. See Suitors' Test Oath. OATH (see Affidavits) required to be administered by the court or judge, 105. mayor, 437. of principal, wben insufficient if made by agent, 106. power to administer, implied, 419 n. of allegiance, constitutional provision as to, 536. OBJECT of act (see Defeat, Lord Coke's Rules. Scope) to be effectuated, 29. not to be gathered from expression of legislators, 30. language construed to harmonize with, 73. may supply unexpressed condition, 102. restriction of acts to tlieir special, to avoid implied repeal, 211-214. construction of constitutional provision with reference to, 518-519. Obligation, 75 and note, 381, 383. of record, 381. or other security, 302. Obligations, implied, 424, 430. See Duty, Married Women. Obscene publication, offence of sale of, 136. Obscure and incoherent later clause not a repeal of clear and explicit earlier, 183. Obstruct, 337. and retard the mail, 129. Obstruction, nuisance or annoyance, 406. OBSTRUCTION of highway, private right of action for, 473. injunction to restrain, 151 n. of any quay, wharf or landing place, 340. navigable river, private right of action for, 473. process, 74. turnpike, remedy for, 153 n. civil and criminal, liability for, 469. See Highway, Navigation. Occasion of enactment, 27, 28. Occupied, 95, 383. Occupier, 95, 103, 163 n., 411. Occupier, out-going, 10, 62. Occupy, 95. Of, 302. Offences (see Joint and Several), not created by implication, 329. remedy prescribed for new, exclusive, 470. effect of repeal of aot creating, 478-479, 483. Offenders against the law, 65. Office, see Continuance, Re election. Office-holder, see Removal. Office-hours, act relating to, 365 n., 392 n. Officer, 90 n. I.NDKX. 831 [The reference is to sections.] Officers, 70, 264, 512. OFFICERS not in actual possession, not occupiers, 95. refusal of, to perform duties imposed upon, 136. audit accounts, 136. in citizens' clothes, assault upon, 133. limits of discretion conferred on public, 148. See Powers. act allowing removal of, for cause, 148. See Removal. of state included by agent, lb6n. statute conferring powers on, refer to those of same government, 169 n. construction of act speaking of, by titles, 178. fees of, part of costs, 347 {Addenda). acts conferring special ministerial powers on, 352. provision as to salaries of, 507 n., 508, 521, 527. See Salary. < M'FICIAL bonds, remedy on defective, 110. See Bonds. construction of act relating to, 381. time for filing, 436. usage, 360. Oldest in commission, 514. OKI law (see Lord Coke's Rules), construction of new law as near use and reason of, as possible, 113. OMISSION (see Change of Language) of words changes sense, 199. of requirement of notice, 220. words not supplied, 16, 18-22, 384. rendering act inoperative, 22. from revisions, 202, 203, 384. amendment, 17l> and Addenda. re-enactments, 51. in penal act, 334. treatment of, in act under strict construction, 336. in body of constitution not supplied from schedule, 513. in new constitution, 531 n. may be supplied by context, 39. of material words, when supplied, 297 and note, 380. supplied by interpolation, 298-300. correction of, 317-318. when insignificant, 379, 380. caution as to supplying, 295 n., 317 n. to give notice of appeal may secure delay, 11. of seal, 10. affidavit, 10. directory duty, remedy for, 440. to paint name on business place, 453, 457. Omitted when included in done, 104. Omnibuses ur vehicles in the nature thereof, 352 n. On, 247. read or, 319 n. conviction, 302. his own premises, 97. or before, 436. proof of demand and non-payment, 428. the master's appearance, 2(57. principles of justice and good faith, 147. true faith of a Christian, 376. One (read one hundred), 299 n. day previoxts, 534. One party, see Particular Party. Only, 431. Opening (streets), 22. Operation, 115, 385. S.°,2 LNDEX. [The reference is to sections.] • (PEE ^.TION, every word, &c, to be construed as intended to have some. 23 depending on vote of people, principles of cuntruction 388 n. postponement of, 499. See Commencement. Postponement. Operative, 99. Opinion, 108 n. I (PINIONS, legislative intimation of erroneous, 372-376. See Erroneous. when judges required to give, 426. See LICENSE, Reasons. provision requiring judges to give, on everv question in n cord, of legislators, 30. legislatures, 53. Optima est legum interpres consuetudo, 357. Option, see OPERATION Or and and, 303-305, 381. See Power. ' not and. 24. read on, 319. Or— nor, 381. Ordered, 338. Orders, 385. Orders partly good and partly had, 460. ORDINANCES (see Municipal, Resolutions), void, not validated by act declaring in full force all ordinances in operation, 115. certiorari to suits under, 152. not presumed to be contrary to charter, 180 n. application of presumption against unreason to, 245 n. recpiiring notice to be left, &c., construction of, 249. held prospective, 271. must be reasonable, 352. saving of all, in operation, 385. act requiring recording of, 432. rights under, acquired before amendment of charter, 485. not affected by repeal and re-enactment of act whereunder made, 490. of section of charter under which passed, 490 n. not laws, 507 and note, violating constitution, 538. Ordinary callings, 269. luggage, 378. Ordinary meaning most generally in harmony with intention, 78. preferred, 78, 79. See Commercial Terms, Popular Meaning. Original statute, see Amendment, Merger, Revival. ORPHANS' COURT, proceedings in, held actions, 77. jurisdiction of, 118, 153, 157. efleet of act authorizing, to appoint trustees of absentees' estates, 120. discretion of, as to security on appeal, 225. to direct issue devisavit vel non, 307. Other article or thing, 409. articles, 410. budding, 406. buildings and hereditaments, 408. business, 405. trades, avocations or professions, 407. cattle, 412. cause, 407. conveyance, 407. craft, 405. INDEX. 833 [The reference is to sections.] Other documents, 408. either of litem, 304. erection or enclosure, 405 n. errors, 407. grain, 410. laborers, 405. material, 418. metal-*, 1 1 2. m///, 41 On. moneyed, corporation, 11 '2. obstruction, nuisance or annoyance, 406. officer, 410. person, 405, 406. personal actions, 247 (Addenda). persons, 408. p/ace, 408, 410. places of business or amusement, 407. product, 4 i| tj. properly, 40(5, 407. royalties, 412 specialties, 405. sta/e, 169 (Addenda). tenement, 40ti. Ming <'/<■ action, 407. waters, 112. uw/.-, 4( IS. Otherwise, 407. offend in the premises, 336. provided, 219. Ouster, see Jurisdiction, Removal. Out-door relief, 428. Out o/ t/ie county, or cily, or town, of his residence, 334. Overseer not a laborer, 99. construction of act punishing, for absence, 129 n. Oversight, see Casus Omissus, Erroneous, Omission. Oioncf/, 18'., 508. used add enjoyed, 418. Owner, 96, 181. See Pledgee, Transferee. and aW persons having any estate or interest (in building destroyed), 103 and note. of a vehicle, 178. or parly interested, 96. Owner of stolen mare entitled to reward for apprehending thief, 14. Paid, 345. Painting, see Copyright, Photography. Par, 139. Paramount object, see General Intent. Pardon, see Legislative Pardon. Pardons, statute of limitation as to prosecution is not a statute of, 279. Parents, 77. See Maintenance. Part m.deria (see Acts), statutory and constitutional provisions in, construed together, 181. comparison of acts in, may prevent later from repealing earlier, 183. acts in, construed together, 203. penal as well as remedial, 356. use of same phraseology in later act in, 367. recourse to acts in, involves recourse to construction, 367. construction of one act in, when authority in construction of other, 368. 53 834 INDEX. [The reference is to sections.] Pan materia, superseded constitutional provision in, in construction of consti- tution, 517. See Analogous Acts, Cognate Acts, Rules op Court. Parish, 42. Park, 340. Parliamentary history of enactment, 30-33. law, see Same Session. Parochial relief and other alms, 401. PARTIAL appropriation, see STREAM, illegality of contract, 460. statutory remedy, 466. unconstitutionality, 538. validity of order, 460. PARTICULAR act, later, controls prior general, 216. See Specific. customs, 362. and general enactment on a subject in same act, 399. exception not a repeal, 216. expressions, expansion of, by construction, 37. when not allowed to exclude general intent, 111, 216. some, frequently used in statute, 388-395. forms of words, see Same Phraseology. intent not to defeat general and paramount, 111. or provision, construed as exception to general, 216. parties, restriction of general language to, 137. See Penal Laws. effect on contract of act operating on, 458, 459. provisions in constitution, effect of, on general, 515 n. result, effect on contract, of act declaring a, 458. subject, general legislation on, gives way to special, 399 n. act on, incorporating provision of general act, 233. Particular state, 38. PARTITION, whether included by action, 74, 77 {Addenda). construction of act allowing court to tax costs and fees in, 100. jurisdiction in, 153, 157. See Common Pleas, Orphans' Court. Partners, act exempting, from individual liability, 350. PARTNERSHIP (see Accounts, Firm Name, Limited Partnership, Married Women) in pawnbroker business, 453, 457. sale of liquor by, license not stating all names, 457. Parts of act, comparison of various, 27. See Context. Party, 74 and note, 77, 526. against whom an appeal was decided, 77. chargeable, 52, 383. Party, impossibility arising from acts of, 442. See Incompetency, Married Women, Particular Party, Witness. structure, act authorizing raising of, 120. walls, 171. Passage, 38, 181, 272 and note, 388, 497 n. Parages, see Repugnant Clauses. Passenger on ship is person gone to sea, 12. See LUGGAGE. Past tense, prospective operation in spite of, 82. Patentee, act allowing, to file disclaimer, prospective, 278. Patent law, 295 n., 361. PAUPERS (see Poor, Poor District), acts forbidding guardians to furnish goods to, 73, 212, 214. removal of, duty and liabilities of officers in, 249, 299, 301. act allowing decree for support of, 249. relating to, construed prospective, 274. INDEX. 835 [The reference is to sections.] PAUPERS (continued). st.ite and town, 321 n. construction of act relating to, 428. act relating to settlement and maintenance of lunatic, 423. Paving tax, see Exemption. Pawnbroker, violation of act that name to be painted over shop of, 453. Pay meat, 344. Peddler, unlicensed, 456. Penal jurisdiction, when conferred by implication, 377. when not, &c , 373. Penal laws, 508. PENAL LAWS, what are, 331. acts which are partly, 332-333. and remedial, distinction between, 333. how far revenue laws are, 316. acts allowing actual or vindictive damages, held to be, 347 n. rules of construction of, 337. See Equitable Construc- tion. difference between construction of remedial and of, 329. strict construction of, 329-339. construction of provisos and exceptions in, 332. all cases within mischief of, are within remedial influence of, 339. insensible, 24. designating particular classes subject to penalty, exonerates others, ;!',I7. punishing killing while engaged in unlawful act, not re- pealed by act punishing killing by certain means, 224. relating to crimes generally, not repeal of those relating to crimes by particular class, 225 n. amendment, not repeal of, 195. instance of local, repealed by general, 231. implied repeal between, 235-244. See Implied Repeal. eflect of change in locality and other incidents of punish- ment, 237. distribution of penalty, 237. quality and incidents of offence, 238. preservation of degree of crime, 240. modification instead of repeal, 240. repeal by statute covering whole subject matter, 241. effect of savings in, 4S4. proceedings, see Pending Proceedings. PENALTY, nature of, to enforce payment of tax, 281. See Percentage. effect of infliction of, on contracts, 450. See Contracts. remission of, does not render contract legal, 483 n. when contract not invalidated by, 455 n., 458. recoverable by party aggrieved, is compensation, 470. act imposing new, on defaulting tax-payer, prospective, 277. action for, where several aggrieved, 257. person first suing for, has right to, 257 n. no vested right in, before judgment, 257 n. right to, not reduced to judgment, destroyed by repeal, 281. act giving half of, to informer does not authorize suit in his name, 422. effect of change in degree of, 239. distribution of, 237. presumption against intent to impose double, 239 n. doctrine of secondary meaning to avoid double, 244. construction avoiding double, 253-257, 259. act apparently imposing double, 416. See Imprisonment. 836 INDEX. [The reference is to sections.] Pending action, prosecution or proceedings, 76 and uote. prosecutions and offences theretofore committed, 483. See Prosecutions. PENDING causes, effect of legislation in general upon, 282, 284, 289. relating to procedure in, 288-290. See Corporations, Evidence. proceedings, where jurisdiction depends on statute, effect of repeal on, 479. effect of repeal of statute on ; 478-487, 482-483. of penal nature, effect of repeal of statute on, 478, 479. suit, see Ignorance. Pension laws, 80, 115. PERCENTAGE, acts allowing addition of, 331 and note. added for non-payment of tax, entitled to same preference as tax, 345 n. repeal of act prevents col- lection of, 483. Performance, (see Plays, Theatre) of contract, effect of act rendering, ille- gal, 461-462. Periodical recurrences, 394. Perjury, 334. PERMISSIVE WORDS when merely permissive, 310, 3H. construed as imperative, 306-31-7, 430. effect on construction of, of express reference to dis- cretion, 315. whether imperative, is question of intention, 312. party not interested cannot claim impera- tive effect, 314. Person, 44, 77, 115, 166 »., 167, 385. 387, 396, 405, 406, 519. ^mustered into the servize of the United States, 90 n. or body corporate, 396. persons, 165 n., 253, 254. grieved, 257. Personal and local acts when and when not repealed by general, 227. liability, see Directors, Stockholders. Personal luggage, 378. Personal presence, when required, 429. Personal property, 75 n. PERSONAL property (see Foreigner) included under any property, 15. governed by law of domicile, 174. what is place of sale of, 174 n. See Sale by Sample. qualifications, effect of absence of, on contract, 456. service of citation, when excused, 442. Personating any person entitled to vole, 334. Persons, 70, 87, 88, 89, 90, 251. (applied to one party), 319 n. belonging to a ship, 90. interested, 96 n. Petitions, effect of, in construction of statute, 68. Petroleum, 365 n. Pews, 103, 120. Photography, 112, 335, 337. Phraseology, change of, 378-384. See Change. variation in constitution, 531. See Cognate Acts, Same Phraseology/, Same Words. Phrases frequently used in statutes, some, 388-395. construction of various, see Particular Phrase to be Construed. Physicians, 44, 282. Pigeons, 119. Piloting, act requiring, 258. tNDEX. &37 [The reference is to sections.] Pilots, 10, 11, 37, 350. Pipes, laying, under public road, 519. See Easement, Natural Gas, Streets. Piracy, 73, 97. Piracy, construction of act concerning literary, 199. Place, 410, 411. of abode, 94. Place of business may be abode, 94. Place* of public resort, 400. PLAIN import of language not controlled by earlier acts in pari materia, 53. language to be simply obeyed, 72. 507. meaning not to be departed from, 17 n. Plaintiff, 164 n., 251 n. See Appeal, Defendant. Plant, root, fruit or vegetable production, 406. Platform, riding on, 350. Plays, construction of act prohibiting, without license, 139. Pleading, acts shortening time for, 285, 486. ■ and practice, statute to be construed consistently with system of, 127. Pledgee of stock, when its owner, 96, 181. Pledge (see Registry) of household goods by agent in possession, 118. Plural includes singular, 388. Poker chips, 452. Police (see Officer) court, construction of grant of exclusive jurisdiction to, 152 n. Police regulations and needful by-laws, 418. Policy of the law, 128. POLICY, effect in construction of statute, 5. of previous acts in pari materia not controlling, 53. no waiver as against public, 446. existing, of statutes not changed by new constitution, 520. See Equitable Construction, Insurance. Poll, right of minority to demand, 115. time of keeping, open directory, 438. POOR (see Pauper) act punishing officers charged with care of, for furnish- ing goods to, 73, 212, 241. See Workhouse. district not relieved from care of poor by act authorizing court to de- cree support, 218. See County, Maintenance, Taxes. Popular meaning, 76-80, 507-508. See Commercial Terms. Portwardens, 342. Possession, 44, 139. Possession of grantor in bill of sale when not possession of grantee, 139. Possibility, wife cannot mortgage a mere, as estate, 123. Post-dated checks, 4!«8 n. Posthumous relation, 100. Postmaster, liability of. for failure to deliver letter, 469. POSTPONEMENT of commencement of act, effect on former, 242. operation, 489, 500. See Future Date, Suspen- sion. operation of repealing act, effect on offences against repealed, 483. Pound keeper, 258. Powder, see GUNPOWDER. Power and authority, 306. POWER to bring action against persons claiming adverse title, extent of, 15. See Interest. purchase any property, 15. magistrate, when not power to successor, 18. of officer to take acknowledgment and proofs of conveyance of lands outside of his jurisdiction, 18. 838 [NDEX. [The reference is to sections.] P< >\VER (continued). of attorney, held to be a contract to sell, 139. presumption against construction permitting, abuse of, 146-150. conferred to be exercised according to discretion in each case, 149. implied repeal between acts raising conflict of, 207. grant of, conditioned on different things, 207. to order dog to be kept under control or destroyed, 246. of appointment, what is execution of, 281. discretionary and jurisdictional, how exercised, 352. cannot be delegated, 352 and note. exercise of delegated, 352-353. strict construction of acts delegating, 352-353. to make by-laws for certain purposes does not authorize the doing of the thing without bylaw, 354 n. implied, of corporations, 418. in grant of jurisdiction, 419. protection in grant of, 423. only absolutely essential, 423. conditions in grant of, 428-429. to allow amendments implies duty to do so, 307. judicial or public, is duty, 430. statute giving new and prescribing method of exercise, imperative, 434. granted by statute, to be exercised in manner prescribed, 439. usurpation of, 528. implied constitutional, 535. of legislature, see Presumption. See Fraudulent, Joint Power, Judicial Power, Municipalities, Rights. PRACTICE of law, acts relating to, 103. See Procedure. and pleading, statute to be construed consistently with svstem of, 127. , under a statute, when important, 357. construction of statute by, 3)7-361. constitution by, 527-528. See Contemporaneous Exposition, Costs, Procedure, Rule. PREAMBLE, nature ami effect of, in construction of statute, 62-66. referred to, to identify subject matter of enactment, 63. to explain motive and meaning of enactment, 63, 410. referred to in enacting clause, 63. to ascertain sense of word used in, and in enact- ing clause, 350 (Addenda). recitals in, 375 and note. cannot control, enlarge or restrain clear provisions of act, 64-66. when, may restrain enactment, 66. effect of defective or repugnant, 66. to constitution, 511. matters similar to, see COMMITTEE, GOVERNOR, HEADINGS, Maps, Petition, Report. Precedence, see Judgments, Preferences, Priority. Pri ceding, 219. Pre-emption, homestead, &c , rights, 116. PREFERENCES, act prohibiting, in assignments, 124, 138, 145, 342. strict construction of acts forbidding, 342. giving to certain classes of credi- tors, 350. in distribution of intestate's estate, 412. Preferred, 29, 76. Premium notes in insurance company, act relating to, 344. INDEX. 839 [The reference 19 to sections.] Pi irogative, see Government, State. Prescription, none against government, 164 n. /'i .•nence of two witnesses, 20, 44. Presence of all persons jointly charged with judicial duty required, 429. See Election Officers. Tit at the meeting, 115. support, 101. Present operation of statute using future tense, 82. See Future Tense. President <>f manufacturing company not a lahorer, 99. PRESUMPTION against absurdity, 2(54, 267, 341, 509, 524. abuse of power, 146-149, 150. change of law, needless, 113-128, 530. constitution, violation of, 178-181, 523, 524. contracts, impairing of, 267-270. defeat object of statute, intent to, 265. double punishment, 239 n., 244, 253-257. taxation, 260 n. evasion, intent to permit, 13S-145, 521. excess of legislative functions and powers, 171-173. state powers, &c, 523. existence of an intent, strict construction resulting from, 168. extra-territorial operation, 169, 335. foreigners, intention to legislate as to, abroad, 176. future legislatures, intent to bind, 173. government, intent to affect, 161. implied repeal, 210-244. inconsistency, 182, 258 n. See Implied Repeal. inconvenience, 251-252, 524. injustice, intent to do, 258-263. limits of, 263, 266. absurdity, inconvenience, &c, iu consti- tution, 524. international law, intent to violate, 174, 175. limits of, 175. judicial functions, intent to invade, 172. See Cu- rative, Declaratory. jurisdiction, narrowing of, 122 n. ousting or creating, 151-160. of, by constitution, 522. language to be construed by aid of certain, 72, 113. natural laws, intention to violate, 171. notice, intention to authorize proceedings without, 262. personal and property rights, intent to encroach on, 340. private rights, intention to interfere with, without compensation, 251. retroaction, 271-294, 525. retrospective taxation, 260 and note. operation when inapplicable, 2S0, 281, 283-293, 284, 285. rights granted bv statute, intention to encroach upon, 341. summary jurisdiction, 158. surrender of public rights, 161, 356. unconstitutional design no warrant for construction contrary to language, 180. 245, 250. application to ordinance, 245 n. 840 INDEX. [The reference is to sections.] PRESUMPTION (continued). against unreason, &c, caution in application of, 266. wrong, permitting advantage from own, 2(57, 270. as to curative and declaratory laws, 291, 293. from scope and specific purpose of act, 113-137. subject matter and object of enactment, 73-112. in favor of constitutionality of act, 524. prospective operation, as to effect of repeal on pending proceedings, 483. of legislative pardon, effect of repeal based on, 238, 478, 483. waiver, see Estoppel, Waiver. that change of language indicative of change of intent, 378-379. enactments framed witli reference to equitable as well as legal doc- trines, 325. rules of construc- tion, 8. force and effect to be given to every word and clause, 265. legislature acquainted with previous course of legis- lation, 53. common law, 127 n. existing state of law, 182. general principles of law and construction of par- ticular statutes. 367. does not intend certain resulis leads to modification of language, 295. same words used in same sense, 53, 367, 370, 514. wills and contracts made with reference to existing laws, 274 and note, words used in sense declared by judicial decisions, 367. Prevent and extinguish fires, 418. Preventive jurisdiction, see Injunction, Obstruction. Previous, 391. Previously, 391 n. Primary elections (see Wager) 100 and note, 335 n., 338. and literal sense, wben departed from, 113. Principal, act that judgment against, shall bind surety, retrospective, 287. Principle, see Existing Rule. Printers, act requiring, to affix name to books, 455. PRIORITY of acts, 190. See Same Day! % in distribution, act giving, to certain liens, 414. reduction of salary does not give, 422. Prior law, see Earlier, Old Law. Prison-breaking, what is not, 129, 409. Prisoner can consent to nothing, 446. act relating to aiding, to escape, 409. PRIVATE act, section in, cannot repeat common law or public statute, 216 n. See Local. acts, 503-505. See Recitals, Special Privileges. construction of, 354, 505. when and when not repealed by general, 227. and special clauses not construed together, 55. public, effect of, compared, 505. fishery, 131. injury, see Imperative, Injury. persons, strict construction of acts investing, with privileges, 354- 355. INDKX. 841 [The reference is to sections.] I'IMY VVi: {continued . remedies, implied, 168 17 I rights, consideration of, in construction of statute, 251. See PRE- SUMPTION. rooms, gaming in, with friends, 252. /', ivileges, •">;'>(), 533. PB1VILEGES, acts conferring exceptional, 349. strict construction of acts investing private persons with, 354-355. regulations of acts conferring, imperative, 434. Prize. 79, 337ti. PROCEDURE and practice, equitable construction of acts relating to, 327, 417 n. waiver as to, 445. failure of statute to point out, 22, 443. incapable of application, 24, 443. where no, prescribed and forms of court cannot furnish, 443. prescribed by former acts referred to, 44. acts relating to, bind government, 167. See Government. held retroactive, 285-290. operation of, on pending c;uises, 288-290. effect of, on rights remaining inchoate, 290. .saving of civil, 485-486. prosecutions and rights, 487. what are acts affecting, only, 287. constitutional provisions relating to, 525. forms of judicial, imperative, 435. See Courts, Imperative and Directory, Limited Jurisdic- tion, Pending Causes, Proceedings. Proceed . . . and determine, 420 n. finally, 381 n. Proceeding, 74. Proceedings of committees, 32. terminated by repeal not revived by repeal of repealing act, 475. in equity, see Equity. in Orphans' Court, see Orphans' Court. Proem, 74. (when injunction not within act as to), 258. Process, obstruction of, 74. laws staying civil, 350. Proclamation, see Governor, Commencement. Produce, 365. Product, 406. Production of documents, act authorizing order for, 12. Professional usage, effect of, in construction, 35S-359. Prohibition, see Doty, Liquor, Contract. Promissory notes held not property, 75 n. Promoters, see Charter, Corporation. Proof, 428. See Acknowledgment. Proper county, 38. Properly, 12, 75 and note, 123 n., 388 n., 406, 519, 520. insured, 108. other than land, 406. owned by incorporated company over and above their capital stock, 356 n. which [married women] may thereafter acquire, 123 n. PROPERTY (see Alienation) of convicts, 67. implied right to injure, of others, 423. strict construction of acts regulating man's ii«*e of his own, 342. allowing taking of, 343. 842 INDEX. [The reference is to .sections.] PROSECUTION, when pending, 76 and note. effect of dismissal of, at defendant's costs, 119. revival of, by repeal of statute repealing tliat which created crime, 279. acts relating to incidents of, retrospective, 288. effect of repeal of act creating crime on pending, 478. See Pending Proceedings. where repealing act limned to future operations, 483. savings of, 481, 4S7. See Procedure. See Indictment, Revival, Same Cause. Prospective (see Retroaction) operation in spite of past tense, 82, 272. constitutional provisions presumed to lie, 525. Protection for acts done under, by virtue of, &c, statutes, 297. when implied from power, duty, &c, 423. Provisions, 73. PROVISO (see Savings), repealed, consulted in construing act, 49. unconstitutional, etfeut uf, in interpretation, Son., 50 n. exception and saving clause, 184-186. may have efiert of suspending operation of statute, 185. repugnant to purview, 185. construction of, 186, 332, 526. restrained to immediate antecedent, 186 (see 318). in penal act, 332. constitution, 526. transposition of, 318. against deeming an act (un)lawful which was so before, 376. Proximate cause, see Causa Causans, Remoteness. Public — general, 502 n. officers, 69. place, 378. of amusement, 340. road, 75. PUBLIC and private acts, 501-505. construction of, distinguished, 505. acts, 502. body, construction of grant of powers to, 355. See Municipali- ties, Powers. convenience and improvement, acts in restraint of, 349. corporations not persons, 89. duty, see Duty. embarrassment, evidence of, in construing statute, 6S n. improvements, see Assessments, Legislature. inconvenience, presumption against, m construction, 251. effect of, on question of imperative or directory, 433. mischief, effect of, on question of imperative or directory, 433. money, act punishing person participating in loaning of, 153, 470. acts authorizing transfer of, i>y county commissioners, 218. relating to appropriation of, of one year, to past due claims, 224. remedy against party assisting officer in embezzlement, ex- clusive, 470. See Misapplication. objects, acts promoting, 108. ollice, contract to give deputation of, 452. officers, acts allowing courts to open, &C , accounts of, 108. providing compensation for, 109. special acts as to terms of, repealed by general, 230. act forbidding, to supply goods, 338. See Poor. 6trict construction of act forbidding, to purchase, 34L INDEX. 843 [The reference is to sections.] PUBLIC (continued). officers, usage as to salaries of, 361. to act as body and when duly assembled, 429. See Joint. statutory regulations as to, held directory, 437. interested in contract contrary to law, 4'"»0. See Attachment, Imperative and Directory, Officer, Official Bond, Trespass. opinion at time of enactment of statute, 29. policy, see Policy. property, when subject to taxation, 17, 163 and note. right of eminent domain not extended to, 161-162. various kinds of, exempt from taxation, 163 and note, remedies, implied, 464-467. rights, strict construction of acts surrendering, 356. road, no right of settlement between township •and railroad taking, 100. safety and convenience, grant to corporation subordinate to consid- eration of, 251. trial, see Accused. Publican, prohibition against, permitting bad characters to assemble and meet together, 62. PUBLICATION (see Obscene, Tax Sale) of notice, omission to provide method of, 19. change in date of, of newspaper, 389. of statu i es, 421 n. construction of act requiring, 432. fur at least two days, 432 n See Computation of Time. of notice of assessments, 436. Punctuation, 33, 61. Punishable in the slate prison, 330 ?i. PUNITIVE DAMAGES, construction of act giving, 129. acts allowing, are penal, 331-333. right to, held unaffected by repeal of statute, 481. See Repeal. Purchase and taking of lands otherwise than by agreement, 70. Purchase, strict construction of act forbidding attorney, &C, to make, 341. Purchase-money (see Lies) mortgage affected by usury law as loan, 79. Purchaser, 75 and note, 76, 337. or incumbrancer, 7V) (Addenda). Purchaser, only bona fide, protected by recording acts, 117. allowance of commission to, of municipal bonds, 139. See Buyer, Recording Acts, Title. Pure and unadulterated, 401. PURPOSE of act, 27. See Intention, Motive, Scope, Specific Purpose. enactment construed so as to effect, 29. accomplishment of, may lead to rejection of literal mean- ing, 295 n. Purview, 1 85 n. PUTATIVE father, right of magistrate to summon, under act, 10. evidence of mother against, 10. when p< treat, 77. father, 337. Qualification, 531 n. elections and returns, 527 n. QUALIFICATIONS, personal, depending on payment of taxes, 143. implied repeal between acts prescribing, 199. prescribed by constitution not added to by legislature, 533. See Broker, Contracts, Engineer, License, Omissions, Peddler, Personal Qualifications, Voter. 841 INDEX. [The reference is to .-sections. J Quality (see Deg nil incidents of offence, effect of change in, 238. Quando illiquid prohibetur, prohibetur el omm per quod devenilur ad Mud, 138. Quarter Sessions, appeal from one to another, 2 ■>. See Certiok \ki, Stbe] Quarter year, 3>S9. Quash, act giving appeal from judgment on motion to, held to give appeal from judgment on plea of abatement, 327 n. municipal corporations, 508 Qui facit per alium, facil j S3. (Jut tnm action (see Common- [nformer, Penalty I, question of implied repeal between act giving, and act giving prosecution for same offence, 241 and note. Quo warranto, act giving writ of error to judgment of court upon, 125. to individuals, 471 n. discretion of court as to issuing, 125. to try right of member of city council, 420. See District Attorney, School Directors. Baft, 63. RAILROAD company, act subjecting, to parochial assessments, 21, 299. action against, in one state for injury in another, 176. constitutional provision as to measure of damages against, 219. act allowing damages against, for loss of life, 277. See Widow. exempting, from liability for accidents, 350. failure of, to give bond, effect on timber cutting. 129. extent of right of eminent domain, 161. See Public Property. laying additional track on highway in front of plain- till'' s land, 126. duty to reconstruct public road taken for bed, 142. appropriation of track of another, 162 a. constitutional provision as to right of intersection, 520. prohibition against running through dweliing-house, 249. duty as to crossings, 424. when act requiring checking of speed at crossing not waived, 446 n. special method of condemnation of land not repealed by general law, 229. act giving, right to settle for and obtain right of way, 100. real estate of, when includes lands, buildings, &c, 76. what not property over and above, capital stock, 356 n. includes street railway company, 76. grant of right to build road in borough, refers to then limits, 85. what is dwelling of, 94. not owner of leased palace cars, 96. subsequently incorporated, subject to law for regula- tion of alt existing railroad corporation*, 112. acts relating to duty of, to fence, 105, 220 and note. waiver of provision requiring, to fence, 444. who may sue for omission to fence, 471. liability of, for carrying powder contrary to statute, 132. cabmen trespassing on property of, 134. liability of. for defective weighing machine, 136. excep ion from statute of limitation of notes of any bnik or other moneyed corporation, does not include, 1SI). INDKX. 845 [The reference is to sections.] RAILROAD (continued). company, act placing management of, iu hands of certain num- ber of directors, 137. right to use fire implies protection against liability, 423. what implied in power to purchase land for stone, &c, 418. right to construct road on one side of town does not imply right to make temporary location on other side, 422. rights of, on land taken or ceded for road, 423 and note. power to municipality to subscribe for stock of, is power to, to receive subscription, 427. power to one, to purchase certain lands to construct a road does not involve power in another, to sell the land to former, 427. liability of, for making a line to another ferry, 469. effect on, of repeal of act authorizing laving of rails, 479. right to damages against, for discrimination in freight bv, held unaffected by repeal of statute, 481. taxation of, 21, 226, 299. See Street Railway Co , Train op Cars, Viewers. stock, when not included in any public or joint stock, &c, 335. ticket, a valuable security, 338. RAILROADS, elevated roads may be branches, 79. meaning of connection as applied to, 79. act relating to connection of, 354. authorizing issuing of bonds in aid of, and other works, 98. giving counties right to issue bonds in aid of, 214. municipality right to donate corporation funds in aid of, 352, 427. what is obstruction of, 337. See False Signals. not yet opened, obstruction of, 337. legislature to judge of necessity of, 421. Raising structure, see Party structure. Rarity of case does not exclude it from language of statute, 263 n. Rales, Tin. See Taxes. Ratification, defective deed of married woman, incapable of, 434. of laws suspended revives liens, 477 n. Read three times, 508. Real estate, 76. broker, 98. REAL ESTATE, included by any property, 15. act making long term of years, has no effect on reversions, 122. what, is subject to collateral inheritance tax, 174. place of taxation of, 174. exclusively subject to lex loci, 174. See Justice of the Peace, Limitations, Married Women, Tithes. Reason, legislature presumed to intend what is, 258. See Lord Coke's Rules. REASONABLE doubt of meaning of penal act, 330. time, when allowed, 38S, 420. See Time. when exercise of power not limited to, 20. Reasonable notice, 11. strictness, 329. Reasons when to be given for refusal of license, 425. See Opinion. 846 INDEX. [The reference is u> sections.] Ri ceipt for deposit, 3 I"). Receiving stolen goods, evidence of former conviction, 20. two or more lunatics, offence of, loo. Recent, see Modern, New. RECITALS, 375 See Headings, Misrecitals. in private statutes, 375 and note. intended to have force of ena< tinent, .'576. prefixed to particular section or group of sections, 67. gniz ince, 381, 403 n. Kl;( < )l ;.\ [ZANCE, certified copy of, where act requires certification of, 105 n. Sec ( iil'Y. effect of act requiring, on right of corporation to appeal, 111. act requiring, (iocs not render minors and married women capable of giving, 1 15. distribution of proceeds of, 473. See Penalty. Record, 75, 403 n. Recording acts, 117, 272, '-'77. estoppel from claiming benefit of, 448. See Ordinance, Registration. Records, destruction of, by tire, 441 n. Recover, 340, 417. Recovered, 77. Recovery and protection, 77 (Addenda). irrences, periodical, 394. REDEMPTION, inchoate rights of, how affected by legislation as to proced- ure, 290. from tax sales, construction of acts allowing, 108. certain acts relative to, 216. act kept in force for collection of taxes held in force for, 327. effect of repeal of statute on right of, 480. See Notice. Reddendum singula singulis, 256, 416. Reduction, see Priority. Redundant (see Special Act, Surpi usage), no word to be treated as, 23, (386), 413. Re-election, failure of, 438. makes new office, 508 n. See Continuance. RE-ENACTMENTS, 194. continuation of provisions by, 205. not a repeal, in spite of repealing clause, 222 and note, 490. (qualification, 491.) when a repeal, 491. omissions in, 51. by phrase in addition to, 372. amendment of repealed act is not, 372. effect of, of former section in later of same act, 490 n. adoption of construction by, 368, 371. known judicial interpretation, 368. construction of, when not controlled by departmental usage, 360. express, of existing rule of law, &c. See Existing Rule. Referee, 436. REFERENCE (see Incorporation) to another statute incorporates part re- ferred to, 50, 153. adoption by, adopts no subsequent changes, 85, 233. to laws means laws of that government only, 169 n. incorporation of words of one instrument in another by, as to stamp, 345. INDEX. 8-17 [The reference is to sections] REFERENCE (continued). to last antecedent, 414. See Last Antecedent, Proviso. acts, 101, 108, 126, 493. adopt nothing beyond purpose of new act, 101 and note, only general provisions of act referred to, 101 n. such as will stand with reason and right, KM ,,. general, not particular powers of act referred to, 493. those provisions, &c, which are applicable and appropriate, 493. adaptation of language of earlier act incorporated in later by, 108. terms in, understood in primary, not assimilated, sense, 493. liberal construction of, 101 and note. effect on, of repeal of act referred to, 233, 492-493. modification of act referred to, 492-493. Refusal, see Attachment, Continuance, Discretion, Mandamus, New Trial, Officers, Quo Warranto. REGISTRATION acts, 116. See Bills of Sale. construction of conflicting, as to deeds, 189. contracts in violation of, 450. REGISTRY, pledge of certificate of ship's, 450. list, effect of invalid, 432 n. absence of, of voters, 432, 441 n See Impossibility. of corporation mortgages, &c, 438. shareholders, 438. Regular places of slated worship, 95. sessions, 370 n. Regulate, 216 {Addenda). Regulating criminal proceedings, 122. Re-instatement, see Ratification, Revival. Relative, whether refers to last antecedent. 414. RELIGIOUS meeting, see Congregation. act forbidding sale within certain distance of, 410. paper, publication of notice in, 139. Remainderman, literal construction preferring, to life-tenant, 11. See For- feiture. REMEDIAL and penal statutes, distinction between, 107 n., 333. act, difference between construction of penal and, 329. acts, 107-109. what are, 107, 108. principle of, extended to things not within words, 110. extension of, to new tilings. 112. Remedy, 216. REMEDY, inadequacy of, not to affect construction, 6. provided, inapplicability of, to particular subject excludes it, 37. earlier acts in pari materia consulted to ascertain, 44. acts construed so as to advance, 103, 107. for injuries from exercise of ri^ht of eminent domain, 154 n. statutory, against state, exclusive, 154. construction of acts creating new, 155, 351. new, not extended nor unduly confined by construction, 157. common law incidents to, 154. lex fori governs, 177. act giving cumulative, does not repeal prior, 218. cumulative, 464 n., 466, 467. exclusive, 154, 465, 466. See Exclusive Statutory Remedies. statutory, when, 433 n , 434. summary, held to be, 153. 848 INDEX. [The reference is to sections.] REMEDY (continued). exclusive, for new offence, 470. enforcement of new right, 470. non-performance of new duty, 470. legislature may provide, wherever a right exists, 285 n. public and private, implied, 463-474. See IMPLIED Remedies founded on statutory, effect of repeal on, 481-483. for illegal tax, see Taxi:-. See Duty, Limited Jurisdictions, Lord Coke's Rules, Means oi Enforcement, Procedure, Right of Action, Remoteness. Remoteness of injury from breach of public duty, 17.'). taint of contract, 458, 459. REMOVAL of causes, 122. See Change op Venue. corporate officers, strict construction of act permitting, 351. county seat, 530. seal, see Seal. goods to elude distress, 468. house as nuisance, &c, see Demolition. master, by-law relating to, 352. obstruction, construction of act giving power of, 151 n. paupers, 249. See Officers, Paupers. power of, for cause, 50 n., 65, 148. Renewal of summons, when unlawful, 10. Rent, 73. charge, 80. Rent charge, grantee of, when deemed in possession, 44. REPAIR of road, on whom duty of, lies, 424, 467. wharf, duly of, in city, 424. bridge or towpath, 424. liability of one to keep in, property in possession of another, 424. indictment for failure to keep roads in, 467. See Supervisors. Repairs, 346. REPEAL, 475-496. See Amendment, Implied Repeal. when later act not, of earlier, 183, 193. mutilation of enacting ciause not a, 494 n. difference between modification and, 240 n implied, constitutional provision as to repeal inapplicable to,. 524 /!. intention to, inferred from later legislation, 209. where not permitted in spite of express 222 and note, 367 n. in last section of all acts and parts of acts, 265. construed as continuation, 367 n. when re-enactmeut is, 491. not, 490. express, excludes implied, 203. of so much as provides, 203 71. effect of expressed intent to, 206. implied, negatived by 'later express repeal, 47. of general act not a, of its provisions incorporated in special, 233, 492 n. special act i° not, 173 n. provisions of special act by general, 206. a section in city chaiter does not affect ordinance passed under it, 490 n. act incorporated in another by reference, 492-493. by act, of all former acts within its purview, 205 71. express, of certain sections, repeals all previous acts identical therewith, 20(5. of statute of limitations, effect of, on right to prosecute, 279, 475 n. effect of, on proceedings terminated by act repealed, 475. INDEX. 849 [The reference is to sections.] REPEAL (continued). effect of, on pending proceedings, 478—187. actions of penal nature or statutory jurisdic- tion, 479. penal pn.ceei lings based on tlieory of legis- late pardon, 238, 478, 483. when not construed to forestall or end prosecutions, 483. effect of, on rights ami remedies founded on statute, 480-483. of act imposing tax and penalty, 483. destroys right to penalty not reduced to judgment, 281. See Punitive Damages. does not affect vested rights, 481. effect, on, of savings, 484-487. See Saving. of previous offence and penalty therefor, 173. of act reserving right to proscute, &c, 484 effect of, on contracts in violation of act repealed, 488. of repealing statute, effect on original act repealed, 475-477. See Revival. does not revive proceedings terminated by latier, 475. act superseding common law, 475. amendment so as to read, 475. earlier amendment of act frequently re-enacted, &c, 475 n. al I inconsistent, acts, 205. all local laws, 475 n. act while on passage, 190. by unconstiiutional act, 192 and note. time when, takes effect, 4S9. See Postponement. whether non-user can have effect of, 494-495. REPEALED act, re-enacted, no force except so far as continued, 48 n, portions of acts to be considered in construction, 49. acts expressly referred to, to be consulted, 50. act, amendment of, 372. who only can invoke aid of, 486. REPEALING clause qualified by apparent intention, 43 71. effect of particular, 368. statute, effect of expiration of, 475. suspension of, 475, 476. repeal of, 475-477. and suspending acts passed at same session, 40 n. Reporter of decisions of courts, how far within copyright law, 115 n. Reports and proceedings of committees, 32. Representation excluded by next of kin, 80. concerning character, etc., of another, 48. Representatives (see Legal Representatives), constitutional disqualifica- tions of, 508 n. Republication of will, in what sense codicil is not, 80. Repugnancy, degree of, required for implied repeal, 210. between different parts of constitution, 515 n., 516. See Conflict, Implied Repeal, Inconsistency. REPUGNANT acts passed same day, 500. clauses in act, selection between, by reference to acta in pari materia, 43. clauses, 182, 183-186. proviso, 185. schedule, 197. Required, 372. Residence, 94. RESIDENCE (see Exemption, Voting) of corporations, 94. of state, 94. what is, 519 and note. 64 850 [NDEX-. [The reference is to sections. 1 Resident, 91, 92, 93,91, 519. occupier, 439. Resides, 141. Resolutions of legislature, 501 n., 536. See Judicial Notice. councils, 501 n. Respondent, see Appellee, Deatii, Defendant, Non-Resident. Restitution (or Restoration) of goods, when provision for, inapplicable, llfi. Restriction, see Equitable Restriction, General Language, &c, Pre- amble, Object, Scope, Subject Matter, &c. Restru-u his on exercise of statutory right, court cannot impose additional, 351. See Qualification. Restrictive provision at end of series of sections, 414. Resulis, see Absurdity, Anomalies, Consequences, Mischief. RETROACTION, construction which would give, forbidden by constitution, inadmissible, 178. when only unconstitutional under federal constitution, 283. presumption against, 271-294, 483, 525. denied to acts apparently contrary to words, 272. wbere vested rights affected, 273-276, 2S3. no vested rights destroyed, 284. as to acts affecting rights of municipal corporations, 2S4. giving exclusive (concurrent) in place of concur- rent (exclusive) jurisdiction, 151 and note, imposing new liabilities, 277. conferring benefits, 278. creating disabilities and limitations, 279. one class of persons only, 284. amendments have not, 196 n., 294. curative and declaratory laws, denied to, 292. allowed to, 293. what not within rule against, 280. rule against, inapplicable to inchoate rights, 281. not generally permitte 1 so as to affect pending causes, 282. effect, of presumption against, on effect of repeal on pend- ing proceedings, 282. when to be allowed, 283-293. as to, in acts relating to procedure, 285-290. of act requiring court to take judicial notice of cer- tain acts, 501 n. Retrospective, purpose of act may show it to be exclusively, 122. taxation, 260 n. See Exemption. R (turning officer, see Candidate, Election, Judge. REVENUE acts (see Taxation), implied repeal between, 243. and appropriation acts construed with earlier acts in pari mate- ria, 46. construction justifying evasion amounting to frauds upon, 2-32. laws, const Miction of, 346. See Taxes. contracts in fraud of, 457. Reversal, none, of order long expired, 441 n. Reversioner, see Remainderman. Reversions, see Forfeiture, Real Estate. Review, act relating to, held inapplicable to pending cause, 289. See Appeal, Writ of Error. REVISION, all parts of, to be harmonized, 40. viewed as one system, &c, 40. bow each chapter of, regarded as a statute, 42 n. effect of arrangement, chapter, &c, headings, &c, in construc- tion of, 69-70. omissions in, of provisions of former law, 51, 384. when to be construed by reference to acts superseded, 51, 368 n. INDEX. 851 | The reference is to sections ] REVISION (continued). construction of original statute embodied in, adopted, 368. slight departures in, from phraseology of original acts, 3S1. sections last adopted, or portions transcribed from later statute, repeal earlier provisions, 183. implied repeal by, 201-203. of whole subject matter supersedes common law, 236 n. • prior criminal law, 241. when continuation of acts incorporated, 203. repealing and re-enacting statute-;, 490. repeals common law, 127, 201, 236 n. act putting, in force to he construed together with act order* ing, 205. REVIVAL of common law by repeal, expiration or suspension of act, 475. judgments, see Judgments. liens by ratification of suspended law, 477 n. original law, by repeal of repealing act, 475—477. expiration or suspension of repealing act, 475, 476. statutory modification of doctrine of, 476-477. proceedings terminated by repealing act, none, by repeal of same, 475. right to prosecute, by repeal of statute of limitation, 279, 475 n. statute, effect of, on infringements, 489. Revolt in a ship, 129. Reward, see Owner. Riding and driving, construction of act relating to furious, 338. Right, 401, and note. accruing, accrued, acquired or established, 485. or remedy, 216. RIGHT, acts done in assertion of, 131. mere belief in, 131 n. created by statute, time limited for suing on, imperative, 468. court cannot impose additional restrictions on exercise of statutory, 351. express affirmation of. does not indicate former absence of, 374. in one may imply duty in another, 427. right in another, 427. of action (see Assault and Battery, Convicts, Malicious Prosecution) for breach of statutory duty, &c , 463. lost by expiration of time limited for asserting it, 46S. for breach of duty, &c, for benefit of particular party, 469. when unaffected by fact that act is criminally punish- able, 469. remedy for enforcement of new, exclusive, 470. common law, cumulative, 470. for breach of public duty, 471-474. violation of contagious diseases act, 471. fencing act, see Railroad Companies. none in person outside of class for whose benefit act passed, 471. for obstruction of highway, river, &c, 473. breach of public duty, special and direct injury neces- sary, 473. when no private, 474. effect of repeal of statute on, 480- 483. way, see Lease, Road. Rights accrued, 486. or established, proceedings, &c, 487. of properly, 75. 852 iM>K\. [The reference is to sections.] RIGHTS, bill of, 516. strict construction of acts encroaching on, 340-343. effect of repeal of statute on unpeifeeted, 480, 482. vested, 481. implied authority to infringe on others', 423. regulations of acts conferring, imperative, 434 and note. founded on statute, effect of repeal on, 480-483. and procedure, effect of saving of civil, 485-4S6V what not within saving of existing, 486. and contracts, waiver of statutory provisions as to, 444. no waiver as against others', 446. See Common Law Rights, Conflicting Rights, Implied Repeal, Powers, Public Rights. Elver, 378. See Fishing. Bo ill crossings, 446 n. ROAD /row, 23 n. See From, Highway, Repair, Street, Tolls. laying of pipe line under, 519. when not incumbrance, 80. indictment for failure to repair, 467. See SUPERVISORS, law of the, 96. law, 447 n. effect of repeal of, 417. views, petition to be strictly followed in, 435. Roads, 32 1 n. Robbery, 3, 75. Robbery, what is not, 131. Rule in equity, see Existing Rule. of law, see Existing Rule. RULES, general, made under act giving them force of law, to be consulted, 47. of practice, when bad, 149. See License. power of court to make, 419. strict construction of act authorizing court to make, 351. of court in pari materia, 46. when not judgments, 74. See Orders. Running away, leaving child chargeable to parish, 48. Rural lands, effect of annexation of, to city, 420. Sabbath, see Sunday. Safetv, see Public Safety. Said, 414. Sailing rules, act imposing liability for failure to observe, 137. Salary, 527, 531. See Officers, Priority. Salary, act grading, according to population, 261. implied repeal between acts relating to, 207. Sale or transfer . . . preceding . . . death or insolvency 350. SALE, act directing, of a person's property by surveyor-general, 122. prohibition of, is not prohibition of gift, 145. by sample or soliciting or procuring orders, 174 n. without license, what is not, 213 (see 456). act relating to investment of funds made on judicial, retrospective, 288. statutory rule as to, under later act applied to, under earlier, 327. strict construction of act allowing, for taxes, 343. of public offices, 452. for illegal use in other state, 454. of goods to be smuggled, 454. for illegal purpose, 454. in violation of acts requiring, in certain manner, 455. without license, 4-i6 (see 213). by partnership, license not stating all names, 457. i^dex. 853 [The reference is to sections.] SALE (continued). See Administrator, Bargain and Sale, Bills of Sale, Contract, Conveyance, Frauds, Judicial Sale, Liens, Sheriff's Sale, Tax Salics, Validating Acts. Sales, act relating to irregularities in, 366. Salmon, see Found in Possession. Same, 507 n. authority . . as . . . now has, 233. cauxe, 259. effect as if passed after this act, 193. horses and carriages, 3l)4. manner, 152. offence, 116, 259 n., 284, 388, 507 n. SAME day, acts passed on, one to take effect later, &c, 189. inconsistent acts passed on, when, nullify each other, 189. repugnant acts passed on, 500. elections on, 539. phraseology in later act in pari materia, 367. analogous acts, S69. See Change. session, suspended and repealed acts passed at, 40 n. acts passed at, 43 ra., 45, 188. See Implied Repeal. main intent of conflicting laws of, to be effectuated, 210 n. subject, legislature not presumed to intend co-existence of two conflict- ing systems op, 201. terms in amendment, 370. words, presumed to be used in same sense throughout act, 41, 53, 350 (Addenda). different sense when applied to different subjects and objects, / o, oo7. in statutes, 370, 371 and note, 387. See Change. use of, for same thing gives greatest precision, 387. in constitution, 514. Satisfactory evidence, 116. SAVING of all definitions and descriptions of offences and all incapacities, 240. ordinances in operation, 385. effect of general act for, 173n., 484 n. of any right or remedy, 2 1 6. rights accruing, accrued, acquired or established, 485. accrued, 486. or established, proceedings, &c, 487. lawful rights, 486. cause of action already accrued, 284. civil rights and procedure, 485. existing righis, &c, what not within, 486. right to proceed, 487. prosecutions and rights, does not cover procedure, 487. all rights of suit or prosecution under any prior act, &c, 484. suits, rights, actions, prosecutions, etc, 526. pending prosecutions and offences theretofore committed, 483. prosecutions inapplicable where prosecution closed and sentence pronounced, 484. right to punish, repeal of, 484 n. existing offices in constitution, 513 n. in penal act, 485. construction of, in constitution, 513 n. clause, exception and proviso. 184-186. as to proceedings, not extended to election. 74. repeal of special by general act in spile of, 230. relates to time of passage, not of taking effect, 489 n. clauses, similar construction of two, where phraseology differed, 531. 854 INDEX. [The reference is to sections.] Strings institutions, 44, 396. See Buildin<; Associations. Seal Ills and measures, act for inspection of, etc., 119. liability for defective, 136. ' SCHEDULE, effect of, in construing statute, 71. repugnant, 197. effect and functions <>f, in constitution, 513. construction of, in constitution, 51 'in. provisions not transferred from, into body of constitution, 513. SCHOOL directors, quo warranto, &c, 418 n. districts, act curing irregularity in formation of, 100. treasurer, see ATTACHMENT. Schools, act relating to attendance of children at, 212, 218. constitutional provision as to common, 533. Scope and specific purpose of act, presumption arising from, 113-137. Scotland, see INSOLVENT. Sea, ciines committed at, 169, 174. See Ships. Sea-faring m in included in absent, 12. Seal (see Corporation'), provisions as to, 10, 18, 435. offence of removing, from property sealed by customs officers, 119. Seamen, 90 n. Search, construction of act permitting, 301. Second offence, 2S4. 3S8. Secondary meaning, doctrine of, 214, 386. Secretary of treasury, see Departmental Usage. war, usage in office of 36.1. SECTION headings, see Headings. misreference to, in amendment, 302. general restricting provision at end of, 414. See General. Section six, 196. Security, 338 n. Security, when real estate required as, must be in state, 102. in iv he waived, 444, 445. See next page, 348. Is, 65 S e Sugar-Cane Seed. Seeming, see Conflict. Seized in fee simp'e or fee tail in possession, 77. Self-criminating questions, answers to, evidence in criminal proceedings, 417. -executing provisions of constitution, 540. Sell, 80, 411, '422. . . . from, 299. Senators, disqualification of, 508 n. Send, 337. Sense, see Same Words, &c. ■ A.CKOWLEDGMENT, Married Women, Sole and Separate. SERVANT (see Apprentice), when not inhabitant, 91. not in actual possession, nut an occupier, 95. knowledge of, may be, of master, 105. alreenting himself from service, 129. master's, criminal liability for act of, 135. Service of nolice, 74. Service of summ >ns on absentees, 12. See Non- Residents, Personal Service, Summons, Sunday. Session. 508. See Same Session. Set, 869. irt and occupied, 95. Set-off held not payment, 344. Settlement, 73. SETTLEMENT, question of, determined with reference to moment of adju- dication, 90 n. of bastard, 141. INDEX. 855 [The reference is to sections.] SETTLEMENT (continued). colorable or fraudulent renting of tenement, does not give, 141. prevented by hiring a few days less than year, 144. act relating to acquisition of, 383. what is payment of rent to obtain, 442. none acquired by employment contrary to statute, 449. Several persons engaged in committing same offence, 253-256. penalties on all persons engaged in same offence, 256. Sewer, authority to construct, what not involved in, 423. act relating to, 437. Shall, 378. and may be lawful, 378. . . . and they are hereby authorized and empowered, if they shall so think fit, 306. be at liberty, in their free and unqualified discretion, 315 n. deserted, 82, 271. * empowered, 306. come, 321, happen, be given, 82. go, 75 n. have been, 272. done, 82. resident, 63. power (and authority), 306. resided, 112 if they think fit, 306. include, 365 n. not repeal, All . Shareholders (see Stock) cannot take advantage of wrongful neglect to pay, 268. failure to keep register of, 438. Shares, failure to number, 438. SHERIFF, words of inheritance in deed by, when dispensed with, 14. and deputies, act forbidding, to buy at their own sales, 98, 270. effect of interpleader act on. 126. act allowing judgment debtor to pay to, 128. arrest of mail driver by, 129. im [died repeal between acis relating to, 200. act regulating suits against, 287. relating to bonds and recognizances of, 381. allowance to, for boarding prisoners, 508. held not a state officer, 519. sale, regulations as to, imperative, 435. legal formalities may be waived, 445. See Escape, Municipal Elections, Officer, Public Officer, Trespass. Ship, 103. SHIP, casting away a, is to destroy, 79. built in England for foreigner, not a British ship, 116. effect of loss of, on jurisdiction, 443. See Barratry, Bill of Sale, Engaged in Navigation, Registry, Revolt, Unska worthiness. Ship and freight, 350. Ship owner, not responsible for damage by act of God or enemy, 121. acts relating to liability of, 350, 367. Shipping, law-< of state concerning, refer to waters of state, 169. See SAIL* ing Rules. Ships on high seas governed by laws of state, 169. act for examination of, 382. See Bottoms, Vessels. Shoot, cut, stub or wound, 402. 856 INDEX. [The reference is to sections. J a Shop, 405. Short and lon^ summons, act relating to, 213. Should have had, 276, Signature, see Bills, Bonds, Minutes, Resolutions, Subety, Wills. Signed at the end thereof, 348. by the party chargeable thereby, 106. Signing and subscribing, acts requiring, 34S. Silk veils, 83. Simitar, 507 n. Similar objects, statutes having, construed alike, 52. Simultaneous acts, 500. See Same Day, Session. Single man, ] sitting, 387. tenement, 103. woman, 103. Single, offence in its nature, committed by several, 254. subject, see Bills, Implied Amendment, Kepeal, Title. Singular includes plural, 388 and note. Sitting, 508. See Single Sitting. Sittings, 80. Six (see Section) successive weeks, 389. weeks successively, 389. Slander, see Costs. Slave trade, 170 n. contracts, 525 n. Smallpox hospital, 423. Smoke, act requiring consumption of, by furnaces, 260. So as to read, 196, 294 and note. fixed, 435. much as provides, 203 n. Sojourner, 44. Soldiers, provision for maimed, 115. Sole and separate, 75 and note. Solicitor, charge on property recovered through, 12. act as to agreements between client and, 248. Sovereign, see Government, State. Spanish government, see Florida Commissioners. Special, 502 n., 507 n. See Particular, Specific. SPECIAL, construciion of act relating to officers so as to avoid being, 178. acts, when and when not repealed by general, 223-233. implied repeal between, 234. construction of seemingly superfluous words in, 386. what are, 502, 503, 504, 507, 521 and note, and Addenda. See Local, Municipalities, Private, Repeal. custom, 223 and note, 227. demurrer, 290. jurisdiction (see Jurisdiction), act conferring, 160. conferred by constitution, 526. legislation by municipalities as to bay, &c, windows, 261. on particular subject overrides general, 398 n. See Par- ticular attemped evasions of constitutional provision against, 521 and note, and Addenda. what is, 507 n., 521 n. meetings, notice of, 352, 429. privileges, acts graining, to different parlies not construed together, 55. See Private. and general acts, when construed together, 56. SPECIFIC purpose of act includes what, 417. See Particular. words, restrictive effect of association of general with, 396. I INDEX. 857 [The reference is to sections.] SPECIFIC (continued). _ words, generic added to, 405-411. provisions, effect of, on general, 216. Speeches of legislators, 30. Spirits, 83 n. Stamps, acts relating to, 221, 252. See Charter-party, Exemption, News- paper, Receipt, Reference. Stare decisis, pripciple of, 303, 529, 530 n. State, 78, 169 (Addenda). STATE, when real estate required as security must be in, 102. includes its ships and waters, 169, 174. statutory remedy against, exclusive, 154. not included in general terms of statute, 161. prescription against, 164, notes 70, 78. may plead statute of limitations, 164 n. is not inhabitant or occupier, 162 n. has no residence, 94. See Creditors residing, &c. not included in terms plaintiff, defendant, l64m. when included by person, 8y n., 166 n. not a person under statute of wills, 167. named in some sections not necessarily included in others, 166 n. laws of, where bind ins;, 169. not understood to surrender any public right or prerogative, 356. See Certiorari, Extra territorial, Foreign State, Frauds. STATE constitutions, when laws, 507 and note. difference between federal constitution and, 535. courts, construction of act conferring jurisdiction, 160. when the different, follow each other, 364. and federal courts, 364. State officer, 519. State prison, what are crimes punishable in, 330 n. States, statute of limitations between, 164 n. of United States, relation of, towards one another, 174 n. STATUTE, what is a, In. constitutionality, how far an element of definition, 1 n. what deemed to be, 421 n (42 n.) controlling as to form of, 361. all parts of, to be compared, 35. embodying distinct acts, construction of, 42. territorial extent of operation of, 169. when construed as continuation of former, 203 and note, in force from connection with other state or nation, 204. waiver of benefit of, 444-447. estopped from claiming benefit of, 448. speaks as of time of taking etiect, 489 and note, presumed to he passed with reference to rules of construction, 8. analogies and difference between construction of, and construction of constitution, 506-540. violating constitution, 180, 538. See Acts. Bilks, Context, Enactments, Misdescription, Ordi- nances, Rules, Streets. Statute law, what is, 1 and mte. judicial decisions part of, 367. STATUTE OF LIMITATIONS, acknowledgment to take debt out of, 52. state may plead, 161 n. municipal corporation may plead, 165. in suit upon bail bond, 164. official bond, 167. as to prosecutions, change of, 279. construction of, 296. 858 INDEX. [The reierence is to sections.] STATUTE OF LIMITATIONS (continued). between states, 164 n. as to real estate, see TlTlIES. See Joint Debtor, Limitations, Married Women. Statutory remedy, when exclusive, 133 n., 134. See Remedy. proceedings, see New Proceedings. Stay of execution, con-truction of act giving, to freeholder, 102. laws, strict construction of, 350. Steal, 75. Steamboat, see Engineer, Letter. Still or xtills, 255. See DISTILLERY. Slock, 75 n. See Pledgee, Stockholder. STOCK, acl forbidding holder to transfer until payment of calls due, 137. equitable restriction <>f aci relating to transfer of, 324. transfer of, not entered on books, 324 n., 438. dividends, 418 n., 508. gambling, 138. See Margin, \Vager. STOCKHOLDERS, acts made especially for protection of, 137. personal liability of, 96. acts subjecting, to, strictly construed, 350. constitutional provision as to, 508. methods of enforcing, 466. See Shares. Stock jobbing, 335. Stolen goods, see Receiving, Restoration. Stolen or taken by robbers, 61. Store account, 76 n. Stranger, in competent to object to certain matters, 137. See Third Parties. Stream, 378. Stream, partial appropriations of, 353 n. Street, lane or place, 410. or road, 378. STREET cars, see Omnibusses. crossing, see Road Crossing. Railway Co., authority to declare dividend at such times as they may deem expedient, 142. ordinance limiting fare on, to five cents, 215 n. See Classification. STREETS (see Highway, Roads), act providing method for opening, 22. power to municipality to open, concurrent with conns, 151. construction of act relating to opening of, damages, *ic, 126, 407. effect of repeal of act authorizing opening of, 480. act relating to laying out, 507 n. owner of fee of, not occupier, 95. effect of act vesting, in local authority, 120, 372. See Minerals. misdescription <>f, in statute, 122. jurisdiction over, not supposed to be vested in two conflicting bodies, 200. location of, through graveyard, 225. right to lay pipes in, subject to change of grade, 251. Vacation of, included by improvement, 3S8 n. what implied in power to contract f>r lighting, 418. involved in right to dig up, 421. laving pipe line under, damages for, 519 n. STRICT construction, 329-356. what is. 127, 329, 334. basis of rule of, 329. as result of presumption against intent, 168. forbidden where it would render act unconstitutional, 178. INDEX. 859 [The reference is to sections] STRICT (continvcd). . ,, , .._„ construction required where liberal construction would do so, 179. rule of ejasdcm generis especially applicable to acts re- quiring, 405. principle of, lias lost much of its force, 329. not abrogated by act requiring literal con- si ruction, 329 n. meaning of rule of, 329. difference between liberal and, 329. results and effects of rule of, 330, 339. degree of strictness to be applied in, 334. exclusion of new things by, 33"). treatment of omissions in acts under, 336. qualifications of rule of, 337-339. modem tendency as to, 339. of penal statutes, 329-339. acts encroaching on rights, 340-343. disqualifying citizens from giving evidence, 341. from making contracts, 341. requiring suitor's test oath, 341. forbidding public officers to purchase, 341. avoiding deed, 341. imposing disabilities, 341 and note. regulating trade, 342. restraining alienation of property, 342. prescribing manner of using and holding prop- erty, 342. forbidding preferences, 342. bequests, 312. of limitations, 343. _ subjecting property of one to seizure for liabil- ity of otber, 343. discharging surety, 313. allowing taking of private property, 343. requiring affidavits of defence, &c , 344. giving summary proceedings, 344. dispensing with notice or allowing constructive notice, 262. authorizing attachments, 344. court to mark judgment satisfied, 344. landlord's warrant, &C, 344. requiring gratuitous services from citizen, 345. imposing burdens, 345-346. allowing costs, 347. regulating form and execution of contracts, 348. creating monopolies, 349. in restraint of irade. 349. giving mechanics, &c, liens, 350. creating exceptions from recognized liabilities, 350 permitting limited partnerships, &c, 350. giving inferior jurisdictions, 152. new remedies, 351. creating new or special jurisdictions, 351. authorizing courts to make rules, 351. delegating powers, 352-353; investing private persons with privileges, 354- 355. creating corporations, 354-355. 860 INDEX. [The reference is to sections.] STRICT (continued). construction of acts granting powers to corporations, 354. public bodies, less so, 355. conferring exemptions from common burdens. 356. act exempting from taxation, 356. in derogation of prior or common law, 127 and note, 128. allowing suits against government, 168. local law, 350. class legislation, 350. proviso, exception and saving clause, 186, 526. Interpretation clause, 365 n. constitution, 526. how far applicable to revenue laws, 346. when inapplicable to act prescribing less rate of taxa- tion, 356. grammatical and etymological sense not always followed, 73. Strvcture, 73 and note. Style of enactments, 536. Subcontractor, not a contractor, 122. SUBJECT MATTER (see Revision, Implied Repeal), language construed in harmony with, 73. general words restricted by reference to, 86-101. and object, restriction of language to special, of act to avoid repeal, 210-214. construction of constitutional provisions with reference to, 518-519. Submission of township organization to vote of electors, 23. Subscribed, 96 n., 349 and note. Substance of transaction, courts look at, 138. enactment, things not of the, 436. Substitute, repeal of detached specific provisions by general act, intended to be, 230. See Code, Exclusive Rule, Revision. Subterfuges, see Evasion. Succession of judges under Pennsylvania constitution, 513 n., 514. Successor, when not included in power to predecessor in office, 18. Suck, 302, 507 7i. bond, 381. order . . . as . . . should seem meet, 148. persons, 253. Suffer, 129, 337, 378. any washings to be conveyed or to flow, 133. Sugar-cane seed, 103. Suit, compluint or plea, 507 n. or proceedings at law, 77 n. Suitor's test oath, acts requiring, 341. Suits of a civil nature at common law or in equity, 159. rights, actions, prosecutions, recognizances, judgments or claims, 526. SUMMARY jurisdiction, presumption against creating, 158. proceedings, strictness observable in, 158. notice required in, 262. acts giving, without notice, 2f>2. strict construction of acts giving, 262, 344. relief by judge at chambers, act for, retrospective, 258. SUMMONS, continuance and renewal of, unlawful, 10. on absent persons, 12. Sje Absence, Non-residents. long and short. 213. requisites of, imperative, 435. INDEX. 861 [The reference is to sections.] SUMMONS (continued). waiver of irregularities in, 445. may be dispensed with, 445. what appearance, &c\, is waiver of, 445. of jurors, see Jurors. on Sunday, see Sunday. Sums to be paid by curators of vacant successions, 101. SUNDAY, law forbidding sale of liquors on, when repealed, 14. act authorizing holding of election excludes, 114. only one recovery for several breaches of same, 255. act relating to contracts made on, 287. contracts made on, 269 and note. in other stale, 169. by-law closing navigation on, 352. service of writ on, illegality of, not to be waived, 446. when included in or excluded from computation of time, 393, 534 n. Superfluous, no word to be held, 23, (386), 413. See .Redundant, Surplusage. Superior, rule that inferior not to be held to include, 412-413. courts, act affecting jurisdiction of, 151. See Supreme Court. when not deprived of control and supervision of inferior, 152. See Certiorari. Supersede, 75. Supervisors of road included by officers, 410. See Township Supervisors. Supplement, 527. Supplement construed to harmonize with original act, 40. Support, see Maintenance, Party -wall. Suppress, 334. Suppression of nuisances, act for, 334. Supreme Court, presumption against ouster of jurisdiction of, by statute and constitution, 151, 522. of United Stales, right of justices of, to sit as circuit judges, 527. See Certiorari. SURETY, construction of act entitling, to assignment of securities, 280. discharging, upon notice, &c. 343. statutory requirement of signature of lease by, waiver of, 444. See Bail, Bond, Married Women, Mortgage, Principal. SURPLUSAGE, nothing to be treated as, 23. See Redundant, Super- fluous. words rejected as, 301-302. in constitution, 507 n. Surrender of public rights, 161, 356. Surrogate, power to issue attachment, 419 n. See Bond. Suspending and repealing act passed at same session, 40 n. SUSPENSION, 194. See Context, Proviso. to escape implied repeal, 215 and note, of repealing act, 475, 476. act superseding common law, 475. laws, war is not a, 494. Swear, 388. Swine, 249. Swing-bridge, see Draw-bridge. Take, 337. Taking, 518. or destroying, 402. Tavern, see Innkeeper, Publican. TAXATION of property, of a county is not, of the poor district, 14. to pay burden properly belonging to former year, 65. 862 LNDEX. [The reference is to sections.] TAXATION {continued). of properly includes credits, 75 n. See PROPERTY. terms used in statute imposing, understood iu ordinary sense, 80, 83. upon ground-rents, not taxation of widow's interest in land, &c, 80 ; person, in acts imposing, when not including corporation, 88. upon cod companies, construction of act imposing, 139. upon dividends, construction, &c, 142. discretion in imposing, does not justify unequal, 148. exemption of public property from, 163 and note. power of, limited to persons and property in state, 169. legislature cannot surrender power of, 17.°) (Addenda). limitation upon, when impliedly repealed, 199. local act exempting from, not repealed by general act imposing, 224. special laws concerning, not repealed by general, 228. retroactive, 260 and note, presumption against double, 2fi0 n. act abolishing, prospective, 278. authorizing, according to previous assessment, 280. prescribing less rale in certain cists I il>erally construed, 356. exemption from, strictly construed, 356. what is subject to, as land, 406. of trades, &c , 407. power to impose additional, 417 71. for municipal objects, when farming lands subject to, 420. of personal property, see COLLATERAL Inheritance Tax, Foreign-held Bonds, Personal Property. what improperly for purpose of, 520. proportional, 536. uniformity of, 540. See Collateral Inheritance Tax, Corporations, Exemp- tion, Municipalities, Occupier, Real Estate, Public Property. TAX collector (see Pond), suit on bond of, for balance shown by account, 155 n. deeds void on face, act authorizing conveyance of land does not vali- date, 115. act relating to lands held under, means valid, 385. list, provisions as to deposit of, 4H5, 436 n. signing of, 437. payers, see Penalties. rate, validity of, not inquired into by justices authorized to issue dis- tress warrant, 246. roll, construction of act legalizing, 292. sales, act relating to invalid, 419 n. time of, 436. acts relating to expense of publishing notices of, 214. construction of two acts relating to, 216. declared void, 270. act validating. 293. See Notice, Redemption. Taxed carl, 363. TAXES imposed on county, not imposed on poor district co-extensive with county, 14. liability of outgoing occupier for, 62. when not to be paid by third party, 143. payment of, as qualification to vote, 143. implied repeal between acts relating to, 200. INDEX. 863 [The reference is to sections.] TAXES (continued). no implied repeal between acts providing remedy for illegal, and regulating method for assessment, 214. local act requiring collectors to pay over, 225. nature, &c, of penalty to enforce payment of, 281 n., 331 and note, 483. See Percentage. act kept in force for collection of, held in force for redemption, 327. imposing, not extended by implication, 315. strict construction of, 345. reasonable construction of, 346. See Revenue Laws. making payment of, condition of voting, 355. covenant in lease to pay, 4G0. levied under act may be collected after repeal, but not penalty, act for collection of, 507 n See Adverse Possession, Assessment, Burdens, Judgments, Pen- alties, Percentage, Sale, Strict Construction, Town- ship Kates. Taxing act held prospective, 271. Team, 103, 350. TECHNICAL legal terms, understood in common law sense, 127. meaning, 74-75. See Grammatical. acquired in our jurisprudence, different from Eng- lish, 507 ra. when given to words, 2. rejected, 76. overcome by practice under act, 357. of terms used in constitution, 507. Telegraph companies, 321. liability of, for failure to send messages, 471 n. TEMPORARY act, effect of continuation of, on infringements, 489. public act, 502. location, see Railroad Company. Tenant so planting, 105, 164. Tenant for life with power of appointment is person seized in fee simple, &c, 77. of premises is occupier, though absent, 95. Tender, wben equivalent to actual payment, 442. Tenement, 406. Tenements and hereditaments, 406. Term, 3, 299 n., 508. Term of years, see Real Estate. Terms of record, 371 n. Terms, see Commekcial Expressions, Language, Phraseology, Tech- nical Words. Territorial, see Extra-territorial. Territory, included in stale, 78. of state includes its ships and waters, 169, 174. Testator, see Incompetency, Wills. Test, ballot, 335 n., 33G oath, see SuiToRS. Theatres, see Plays. The first and second sections of this act. 304. said offence, 253. same as, 493. several, 477. Their railroad, 354. THIRD PARTIES (see Stranger), rights of, unaffected by act directing sale of a person's property by surveyor-general, 122. payment of taxes by, not compliance with act, 143. This act, 42. Three-mile zone, 373. Three weeks before, 389. 864 INDEX. [The reference is to sections.] Threshing machine, contract in violation of act requiring covering of parts of, 451. TICKET, effect of taking, with express condition that no luggage he carried, 444. a valuable security, 338. for heer, 139. Tidal river, see Fishing. Timber, see Co-tenant, Punitive Damages, Eminent Domain, Trees. Time, appointed (set) for trial, 369. TIME, computation of, 390-394, 534. act relating to, prospective, 271. effect of omission of statute to fix, 20 and note. See Reasonable Time. when a right given is to be exercised, 398 n. acts take effect, see Commencement. repeal takes effect, 489. directory, 43b\ 437, 438, 536. imperative, 431, 443, 468 (398 n.) and place of prosecution and trial, see New Offence. Tithes, construction of act of limitations, as to, 211. See Lands. relating to exemption from (3 & 4 Wm. IV., c. 100), 65. TITLE, act exempting homestead lo debtor decides nothing as to his, 120. to quiet, construed, 205 n. construction of act of Congress, 22<1 July, 1S66, confirming, 116. defects of, not cured by act declaring every conveyance valid, 115. only purchaser of same, protected by recording acts, 117. when, passes by conveyance declared void by statute, 118. implied repeal of act forbidding justices to take cognizance of cases involving, 199. when no part of act, 58 and note, part of act, 58 n., 59. an aid in construction, 58-59, 295 n. referred to in body of act, 59. under constitutional requirement as to contents, Ac, 59. cannot control, limit or extend clear meaning of statute, 59. (apparent exception, under constitutional provisions, ibiil.) constitutional provisions as to, 527, 536. See Implied Amend- ment, Implied Kepeal. of articles, &c, in constitution, 512. See Headings. To all intents and purposes, 403. Tobacco, liability for having adulterated, 132 n. dealer in, omission of, to paint name over entrance, 457. See License Toll-bridge, acts authorizing, 349. See Repair. * TOLLS, construction of act as to letting of, 225. certain acts relating to payment of, 217. act relating to, 301. permitting charging of, 349. what involved in right to take, 424. company authorized to levy, within specified maximum, need not exact uniform, 444. Ton, 362. Tools, act exempting, from execution, 261. Tons, trespasses and other injuries, 405 n. See HUSBAND. 2b the prejudice oj the purchaser, 337. testify, 419 n. wit, 400. Town, 321 n. Towns, when included by cities, 37. INDEX. 865 |The reference is to sections. 1 Township, 518. meetings to be held in said county, 23. TOWNSHIP authorities, no right to settle with railroad company for taking public road, 100. organization, see Submission. rates, eflect upon contracts of townships of failure of supervisors to give taxpayers opportunity to work out, 208. supervisors, remedy against, for neglect of statutory duties, 467. Towpath, see Notice, Repair, Tolls. Trade, 350 {Addenda). Trade, strict construction of acts in restraint of, 349. regulating, 342. Trader, 378. See Married Women. Train of cars not a structure, 73. TRANSCRIBED act, fluctuation in construction of, 371. adoption of construction of, 371. before amendment, 371. constitutional provision, 530. Transcript of judgment, when execution cannot be issued on, 14 n. Transfer, 365. Transfer of judgments, effect of act allowing, 14. See Annulment, Assign- ment, Stock. Transferee of stock as collnteral security, see Owner, Pledgee. Transportation company, 350 {Addenda), 404. TRANSPOSITION of clauses in statutes, 13, 318 and note. See Collocation. constitution, 507 n. proviso, 318. words, 318 and note. Traveling agent, sales bv, 174 n. Treason, 169 n., 335, 494. Treasurer, see Attachment. Treasury, see Departmental Usage. TREATIES, presumption against intent to violate, 175. duty of court as to clear violation of, by enactment, 175. not to he violated by constitution of state, 523. Treble damages (see Punitive Damages), construction of act giving, 129. Trees, cutting of, in assertion of right, 131. See Co-tenant. when not products or vegetable productions, 406. Trespass — trespassers, 320. TRESPASS, when, lies against railroad company taking land, 154 n. by entering or being, 382. by persons firing from highway, 337. sheriff in official capacity, when misdemeanor, 79. committed under mistake, 129. in assertion of right, 131. certificate of judge for costs in, 247 {Addenda). Trespasser, when corporation taking land under right of eminent domain is, 154 7i. Trial and determination, 381 n. Tiial, by battle and grand assize, 494. public, see Accused. Tricycles, 335. True, 441 n. Trust arising under deeds, wills, or in the settlement of estates, 122. fund, 90. TRUST, construction of act declaring that a, shall be deemed discharged after twenty-five years, 178. requiring registration of bill of sale subject to, 137. debt arising from, within statute limiting lien of debts, 17. unattested paper not creating a binding, not within statute of mort- main, 144. 55 866 INDEX. [The reference is to sections] TRUSTEES, when owners, 96. construction of acl validating sales by, 385. of absentees' estates, effect of appointment of, 120. See Corporations, Validating. Trusts, 122. Turkeys, see Dead Animal. Turn cattle loose, 378. TURNPIKE company, act authorizing, to abandon portion of road, 122. construction of act as to erection of gate within limits of town, 85. special acl as to, repealed by general, 230. construction of act relating to, 206. implied repeal between acts relating to, 205. road is public road, 75. remains public road upon forfeiture of charter, 75 n. See Obstruction, Tolls. Two, 302. or more, 358. Ubi duce contraries leges sunt, semper antiques obrogat nova, 182. Ultra vires, acts of corporations, 35 1. Unadulterated, 401. Uncertainty, causes of, 26 n. UNCONSTITUTIONAL act (see Constitutionality), statute attempting to validate acts done under, 521 {Addenda). repeal by, 192 and note. amendment, etl'ect of, 195. decision of foreign court declaring act, not binding in construction of transcribed act, 371. proviso, effect of, in interpretation, 35 n., 50 n. statutes, 180, 538. when only, act can be declared, 524. UNCONSTITUTIONALITY (see Ordinances), when not to be inquired into by officers charged with acting under statute, 136 (246). partial, 538. Under, 297. the restrictions and limitations herein provided, 294. Undertakers, 241. Unencumbered real estate, 102. Unexpressed intention, 417 el seq., 509. Uniformity of taxation, 540. See Tolls. Unintentional omission, see Omission. UNITED STATES courts, 159. act prohibiting purchasing of land on account of, 145. not a person under statute of wills, 167 hound bv state statute of limitations, 161 n. See Constitution, District Court, Federal Courts, Gov- ernment. Unlawful, 119. or forcible entry, 38 1 . Unlawfully and willfully, 119, 131. taking a girl under sixteen years, &c, 131. Unless, 431. otherwise provided, 513 n. he shall -prove at the trial, 282. when otherwise provided, 219. Unmarried man, when householder. 92. _ Unreason (see By-Laws. ORDINANCES), presumption against, 240-250, 2)8 n. Unreported judicial decisions, 368. INDEX. 867 [The reference is to sections.] Unsafe and improper carriage, 132. Unseaworthiness, liability from, 35. Until, 431. its works ars completed and liable to assessment, 299. such person can be removed, 21)9. Unusual meaning given to particular words to accomplish intent, 295. Uphold, duty of court to, the various acts and parts of acts, 182, 210, 524. Upon . . . , 318. USAGE, 34, 357-364. See Contemporaneous, Customs, Departmental, Professional. age of, 359. at variance with plain meaning of statute, 361. character of, to amount to contemporaneous construction, 361. may control common law, 361. particular, 362. in construction of constitution, 527-528. Usages among merchants, 362 n. Use, 337, 338. Use and reason of former law, construction should be as near, as possible, 113. Used, 334. for cordage, 384. ire navigating the waters of the state, 262 n. Uses and trusts, 122. USURY, construction of laws concerning, to avoid evasion, 138. two acts relating to, 217. and equitable restriction of laws, 324. notice of, 117. mere error in calculation is not, 119. who may take advantage of, 137. estoppel against asserting defence of, 448. effect of repeal of act on defence of, 483 n. See Indorser, Purchase-money Mortgage. Uti loquitur valgus. 76. Utterly frustrate, void, and of none effect, to all intents and purposes, 269. void and of none effect, 449. Uxoricide, see Husband-murder. Vacancy, when court, in election contest, may declare, 419 n. constitutional provision as to power of executive to fill, 514. Vagabond, 73. Valid, 115. VALIDATING STATUTE (see Curative) as to deeds acknowledged in another state, 110. as to conveyances, 115. sales made in fiduciary capacity, 115. confined to acts within jurisdiction, 385. attempting to legalize acts done under uncon- stitutional statute, 521 (Addenda). Validity of statutes, see Constitutionality, Unconstitutional. tax rate, collateral inquiry into, 246. Valuable security, 338 and note. Valuation lisi, see Tax List. Value, 367. of the ship, 350. and her appurtenances, 350. Variations of language, see Change. Vault, see Burying- vault. Vehicle, who is owner of, 96. Vendor's lien, see Lien. 868 INDEX. [The reference is to sections.] Venue, acts relating to change of, 288, 314. origin of rule a-> to change of, 327. See Change, Permissive Words. Verba eartarum fortius accipiuntur contra proferentem, 354. relata inesse videntur, 184 n. Verdict, amendment of declaration after, 10S n. Vessel, 13. See Damage, Injury, Ship. Vessels used in navigating the waters of the state, 262 n. Vest, 120. VESTED RIGHTS, acts affecting, 273-276, 283, 284. none, in defects of the law, 285. right to sell liquor, 150 {Addenda). See Inchoate Rights, Municipal Corporations, Retro- action. Vestrymen, 115. Victualing etores, destroying the queen's, 494. houses, implied repeal between acts for regulation of, 216 (Ad- denda). Viewers, construction of act permitting court in certain cases to appoint, 160. See Road Law. Violation, see Charter, Constitution, Contract, Duty, International Law, Natural Law. Vitiated or adulterated, 248. Void — voidable, 269, 270. Void, 48, 444 n., 450. and of none effect, 118, 269. to all intents, 36. and purposes, 378. qnd not available . . . for any purpose, 269. VOID and illegal, distinction between, 449. what is absolutely, 270. relatively, 270 n. effect of being, 270. contracts, see Contracts. portion of act not disregarded in construction, 50 n. proceedings treated as voidable for purpose of certiorari, 152 n. Volenti non fit injuria, 473. Voluntary, 403. Voluntary conveyances, act invalidating, 296. Vote, casting, 13. assessment and payment of tax, as qualification for right to, 143, 385. Voter, notice of objection to, 105. Voters, 388 n. See Registry List. VOTING (see Cumulative) for ineligible candidate, 114 and Addenda. illegal, 334. payment of tax as condition of, 385. prerequisites to, 432. residence and oilier constitutional qualifications for, 514, 519. papers, see Election Officers. married women debarred from right of, though females permitted to vote, 115. WAGER, construction of act declaring null and void, 137 n. acts prohibiting, to avoid evasion, 138. relating to, as prospective, 274. on primary election, 335, 340 n. outside of slate, 138. See Stock Jobbing. Wager- pnlicv, 138. Wages, 527, 531. INDEX. 869 [Tbe reference is to sections.] Wages, acts preferring, 350. See Labor Claims. forbidding attachment of, go to jurisdiction and cannot be waived, 447. Wagon, 103. See Vehicle. WAIVER, none by prisoner, 446. of statutory provisions, 444-447. See Wages. provisions capable of, to be invoked only by party within gist, 444 n. of summons and defects in summons, 445. what is not, of time allowed for filing affidavit of defence, 46. of constitutional provisions, 537. War, not a suspension of statute, 494. See Secretary. Warehouseman, wharfinger, or other person, 406. Warehousemen, act relating to receipts by, 446. Warrant of attorney or judgment note, 400 n. WARRANTS of attorney for confession of judgment, executed in one state for use in other, 115. construction of act de- claring, void, 116. unsealed, 435. See Distress Warrant, Land Warrant, Landlord's War- rant. WATER, backiug, upon land of another, 75. fouling of, 133. grant of right to conduct, over another's land, 79 (Addenda) company, see Stream. rates, or rents, are not taxes, 73 n. works, see Public Property. We the People, 511. Weapons, see Concealed. Week, 389. _ fractions of, 389. Weights and measures, acts relating to, 18, 336. See BUYER, Scales. Wharf, 424. Whatever else may seem necessary •. . . in the premises, 411. When, 431. any judgment is obtained, 272. otherwise expressly provided, 219. the sum adjudged . . . exceeds, 245. Whenever required to do so, 10. Wherever found, 169 (Addenda). Which, 414, 532. Who shall come in the state, 321. Wholesale store account, 76 n. Whole subject, see Common Law, Revision. Whose, 414. Widow and family, 100. WIDOW is not wife, 90 n. construction of acts giving exemption to, out of husband's estate, _ 100, 101, 3S8n. action by, against railroad company for death of husband, 154 n. Wife, 40 n. WIFE of person gone to sea, 12. when, may file libel in divorce, though minor, 17. acknowledgment by, to take debt out of statute of limitations, 106. act giving to, the earnings of her labor, gives no claim for work done for husband, 123. prohibiting sale by, to husband, 145. giving damages to, for sale of liquor to husband, 371 n. when not included by person, 385. See Dower, Husband, Married Women, Mortgage, Widow. 870 INDEX. [The reference is to sections.] Will, what constitutes, 348. Willful, 119 and note. default, 47. Willfully destroying, 264, false claim, 119. trespassing and refusing to quit, 134. WILLS, attestation of, 62. execution of, in presence of two witnesses, 20. signature to, 52, 348. act providing that, to be constructed as if made immediately before death, 80, 120. empowering all persons to devise by, 115. not in contemplation of marriage, 120. unattested paper accompanying, 144. person in statute of, does not include state or United States, 167. cumulative methods of contesting, 218. act affecting execution of, construed prospective, 274. presumed to be made with reference to existing laws, 274. land held by married women under, taking effect before enabling act, 278. declaratory rule of construction held retrospective, 2S4. prospective, 292. equitable restriction of act relating to, 324. requirement to sign at the end thereof, 348. act regulating execution of, by married woman, 348. execution of, 349. See Bequests, Married Women, Re-publication. Window, selling beer through, 144. Wine, act forbidding s tie of, except by grower on his own premises, 97. Winegrower, held not indictable for selling without license, 397 n. Wisdom of legislation not for courts, 72. With the rank of colonel, 80. same horses and carriages, 304. Within, 392. eight days after the decision, 443. three months before the commencement of the imprisonment, 296. Without a keeper, 51. license, 213. Witchcraft, 494. WITNESSES, when, need not subscribe will, 20. disinterested and credible, 20 n. incapacity by reason of felony, 240. strict construction of act disqualifying citizens from being, 341. acts relating to competency of parties to be, 77, 80, 126, 128, 374. requiring, to answer self-criminating questions, 380. twelve, to marriage, 437. attachment to bring in, 419 n. constitutional provision that accused be confronted with, 520. as to qualifications of parties as, 526. Wood, act relating to measurement of, 441. Wooden houses, see Building, Erecting. Word, effect to l>e given to every, 23, 26o, 413. WOK D.S, m u 1 1 i p 1 i c i ty of, 386, 53 1 . in different parts of statutes referred to their appropriate connec- tions, 416. See Reddendum, etc. and phrases frequently used in statutes, some, 388-395. imp irtiug masculine gender, >ee Masculine. of inheritance, see Inheritance. See Association, Cii ano e, S \ m e ; | « nd for construction of particular words, phrases and expression, see the same italicized throng/tout index.) INDEX. 871 [The reference is to sections.] Workhouse, 73. Works of internal improvement, 98. Wound, 402. Wreck, 322. WRIT of attaint, see Juror. de. lunalico inquirendo, costs upon, 108. of error, act giving, to judgment of lower court on quo warranto, 125. in criminal trials, 12"). when inapplicable to pending causes, 290. when incident to new remedy, 154. See Curative Act, Review. service of, see Copy, Sunday. Wrong, presumption against intent to permit advantage from, 261, 267-270. literal construction allowing advantage, &c, 11. Wrongful, 119 n. Year, 389. Years, 320. Yoke of oxen, 103. Sffi ">*m ™»$n^S&Mu illiiluiiMi[iHi R » R . EGI0NAL LIBRARY FACILITY AA 000 729 750 o n I i I!