CORNELL UNIVERSITY LAW LIBRARY The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1803 IN TEPORY OF JUDGE DOUGLASS BOARDMAN FIRST DEAN OF THE SCHOOL By his Wife and. Daughter A. M. BOARDMAN and ELLEN D. WILLIAMS Digitized by Microsoft® Cornell University Library KD 691.M46 1833 Thin Digitized by Microsoft® This book was digitized by Microsoft Corporation in cooperation with Cornell University Libraries, 2007. You may use and print this copy in limited quantity for your personal purposes, but may not distribute or provide access fo it (or modified or partial versions of it) for revenue-generating or other commercial purposes. Digitized by Microsoft® ON THE INTERPRETATION OF STATUTES. Digitized by Microsoft® Digitized by Microsoft® ON THE INTERPRETATION OF STATUTES. BY Sir PETER BENSON MAXWELL, —— LATE CHIEF JUSTICE OF THE STRAITS SETTLEMENTS, “ Benignius leges interpretande sunt, quo voluntas earum conservetur.” Dig. 1, 3, 18. SECOND EDITION. LONDON: W. MAXWELL & SON, 8, BELL YARD, TEMPLE BAR. Daw Booksellers and Publishers. MEREDITH, RAY, & LITTLER, MANCHESTER ; HODGES, FIGGIS, & CO., AND E. PONSONBY, DUBLIN ; CHARLES F. MAXWELL, MELBOURNE AND SYDNEY. 1883, Digitized by Microsoft® MS. LONDON : ‘BRADBURY, AGNEW, & CO., PRINTERS, WHITEFRIARS, Digitized by Microsoft® MY OLD AND VALUED FRIEND, LORD BRAMWELL. Digitized by Microsoft® Digitized by Microsoft® PREFACE TO THE SECOND EDITION. —_>—__ More than eight years have elapsed since the first appearance of this work, and, during that interval, the Courts have adjudicated upon numerous cases in which the principles of interpretation have been considered and applied. In the preparation of this edition, the author has embodied all those which seemed to him important. He has also endeavoured to improve the arrange- ment of the original edition. The writer is indebted to Mr. O. B. C. Harrison, of the Inner Temple, for the Index of this edition, and for much valuable aid in passing the work through the press. Carno, May, 1883. Digitized by Microsoft® PREFACE TO THE FIRST EDITION. —_— As two important books on the Interpretation of Statutes are already in the hands of the legal profes- sion, some apology may seem required for the following pages. But as more than a quarter of a century has elapsed since the last edition of the work of Sir Fortunatus Dwarris was published, and the treatise of the American jurist, Mr. Sedgwick, is based in great measure on American decisions, which, however valuable, are not actually authoritative in this country ; it has been thought that such a work as the present would not be inopportune. Its object is to present in some order the leading principles which govern our Courts in the interpretation of statutes, with illustra- tions of their application selected as much as possible from recent decisions, and in sufficient number to explain and give precision to their meaning and scope ; in the hope that it may be useful not only to the legal practitioner, but to the numerous unprofessional authorities, such as justices of the peace, local boards, commissioners and others, on whom the task of con- struing statutes is imposed with increasing frequency. STANHOPE GARDENS, May, 1875, Digitized by Microsoft® CONTENTS. —_>—__ PAGE TABLE OF CASES ‘ : ‘ ; ‘ ‘ : . xiii TABLE OF STATUTES . ; ‘i ’ ij 2 . . Xxiiv CHAPTER I. PRELIMINARY SURVEY. Sect. I. Introductory : e 4 oS 1 II. Literal construction , : Z : 6% 2 III. External circumstances : i ‘ ‘ . 24 TV. Earlier and later Acts——Analogous Acts . 2 ae ABB VY. The title—-Preamble.—Marginal notes ‘ . 49 CHAPTER II. TREATMENT OF GENERAL WORDS. Secr. I. Words understood according to the subject-matter 67 IJ. Beneficial construction . : : , . 84 CHAPTER IIL. RESTRICTION TO THE SPECIFIC OBJECT IN VIEW . 95 Digitized by Microsoft® x CONTENTS. CHAPTER IV. EXTENSION OF THE LETTER TO PREVENT EVASION OR ABUSE. PAGE Scr. I. Presumption that the Legislature does not intend evasion . ; « « 188 II. Or abuse of the eauen wliich it gives ‘ : - 146 CHAPTER V. RESTRICTION OF THE LANGUAGE TO BE IN HARMONY WITH OTHER PRESUMPTIONS. Sect. I. Presumption against intention to oust established, or to create new jurisdictions . ‘ . 152 II. Presumption against intention to affect the os 161 CHAPTER VI. THE SAME SUBJECT CONTINUED. Sect. I. Presumption against intention to exceed the legi- timate jurisdiction of Parliament . ‘ . 168 II. Or to violate international law ; . 178 JII. How far statutes giving rights affect forelenete . 181 CHAPTER VIL. CONSTRUCTION TO AVOID COLLISION WITH OTHER PROVISIONS. Secor. I. Presumption against repugnancy.—Repeal by im- plication.—Negative statutes. . » « 186 II. Consistent affirmative Acts . : : . . 198 III. Generalia specialibus non derogant . i . 212 IV. Implied repeal in penal Acts . : . B99 Digitized by Microsoft® CONTENTS, X1 CHAPTER VIII. CONSTRUCTION MOST AGREEABLE TO JUSTICE AND REASON. PAGE Secor. I. Presumption against inconvenience and unreason- ableness . j . 230 IL. Presumption against injustice and decantiee » « 242 III. Construction against impairing obligations, or allowing advantage from one’s own wrong . 249 IV. Retrospective operation . ‘ : : . . 257 CHAPTER IX. EXCEPTIONAL CONSTRUCTION. Secr. I. Modification of the language s ; : . 274 II. Equitable construction . 3 : : . . 806 CHAPTER X. STRICT CONSTRUCTION. Sect. I. Penal laws . ‘ : : j : 3 . 818 II. Statutes encroaching on rights. — Imposing burdens.—Giving costs.—Regulating forms of contracts.—Conferring exemptions, privileges, and powers . j : . : ; . . 846 CHAPTER XI. SUBORDINATE PRINCIPLES. Sect. I. Usage . a 8 a Bee II. Construction imposed by statis ; : 874 III. Words taken in bonam partem. = Multiplicity of words.—Variation of language . . . . 883 IV. Associated words understood in a common sense . 3896 V. Generic words following more specific. . « 405 VI. Some particular expressions p SS . 420 Digitized by Microsoft® xl CONTENTS. CHAPTER XII. INTENTIONS ATTRIBUTED TO THE LEGISLATURE WHEN IT Ssct. I. II. III. Ty. Secr. I. II. IIL. INDEX EXPRESSES NONE, Implied enactments.—Logical consequences Tmplied powers and obligations When imperative, and when directory . ‘ Impossibilities dispensed with.— Waiver.—Con- tracts made non-performable CHAPTER XIII THE SAME SUBJECT. Contracts connected with illegal acts Public and private implied remedies Repeal.—Revival.—_ Commencement Digitized by Microsoft® PAGE 428 433 450 470 482 493 509 521 TABLE OF CASES. —e A. Aaronson, Ex parte, 147. Abbott, Ex parte, 21, 143. — v. Middleton, 3, 69. — v. Rogers, 484, 486. Abel v. Lee, 306. Aberdare v. Hammett, 120. Aberdeen R. Co. v. Blaikie, 489, Abergavenny v. Brace, 216. Aberystwith Pier Co, v, Cooper, 81 Ablett v. Basham, 80. Abley v. Dale, 4, 447. Acebal v. Levy, 180. Adam v. Bristol, Inhabitants of, 8, 314. Adams v. Graham, 248. — v. G. W. R. Co., 80. Adey v. Trinity House, 199. Aérated Bread Co. v. Gregg, 331. Agricola, The, 430. Ailesbury v, Pattison, 418. Alabama Arbitration, The, 30. Albon v, Pyke, 156. Alderson v, Maddison, 312. Aldgate v. Slight, 465. Alexander v. Newman, 51. Alexander Sarsen, The, 271. — v, Vaughan, 177. Alina, The, 160. Allen v. Flicker, 189, 376. — v. Garbutt, 160. — v. Thompson, 337. Alliance Bank v. Carey, 185. Allkins v, Jupe, 6, 51. Allsop v. Day, 136, Alresford v. Scott, 432. Alton Wood’s Case, 187. Amadie, The, 176. Amalia, The, 170, 180, 184. Ambergate Ry. Co. v. Midland Ry. Co., 206. American Fur Co. v. U. S., 320. Amherst v. Somers, 162. Ancketill v. Baylis, 245. Andalusian, The, 455. Anderson v. Bank of England, 36, 136. Andrew, Re, 44. Anglo-Greek Steam Co., Re, 411. Anna, The, 367, 372. Annapolis, The, 173. Anon., 1 Ventr. 463. Anstey v. Edwards, 352. Anstee v. Nelms, 28, Antelope, The, 176. Antony v. Cardenham, 84. Appleby v. Myers, 471. Archer v. James, 5, 346. Armitage v. Walker, 155. — v. Williamson, 350. Armstrong v. Lewis, 486. Arnold v. Arnold, 179. Arnott v. Dimsdale, 447, Arrowsmith, Re, 94. Arthur Association, Re, 255,353. Arthur v. Bokenam, 96. Ash v. Abdy, 32, 258, 352. — v. Lynn, 201. Ashburnham v, Bradshaw, 258. Ashbury, &. Co. v. Riche, 401, 430, 470, 482. Ashby v. White, 500, 506. Ashenden v. London & Br. Ry. Co. 362. Ashford v, Thornton, 615. Atkins v. Kilby, 475. Digitized by Microsoft® xiv Atkinson v, Baker, 486. —v. Newcastle Waterworks Co., 505, 506, — v. Sellers, 82. — Re, 179 Attenborough v. Thompson, 80. Attorney-General », Alexander, 81. — v. Allgood, 161, 164. —v, Bailey, 74, — v. Barker, 164 — v. Basingstoke, 495. — v. Bradbury, 350. — v. Brecon, 435. — v. Bristol, 368. — v. Cambridge, 365. — v. Campbell, 179. — v, Chelsea, 187. — v. Constable, 164. — v. Davies, 133, — v, Day, 312. — v. Donaldson, 161, 163, 164. — v. Forster, 367 — v, Furness Ry. Co., 364. —v, G. E. Ry. Co., 52, 221. —v. Hackney Board, 244. — v. Hallett, 68. ~ — v. Hill, 163. — v. Jones, 367. —- v. Kwok Ah Sing, 31, 103, 168, 275. — v, Lamplough, 45, 46, 510. — v. Lloyd, 258. — v. Lockwood, 6, 94, 202, 225, 274, 329. — v. Napier, 179. — v. Panter, 518. — v. Parker, 367. — v. Saggers, 330. — v, Sillem, 30, 34, 270, 358. — v. Southampton, 153, — v, Tyndall, 138. — v. Weymouth, 50. Attwater, Hx parte, 200, 375. — v, Westmr. Ch. Ass., 3, 48. Attree v. Hame, 139. Auckland, Lord, v. Westminster Board of Works, 38. Austen v. Howard, 239, 206. Austin v. Bunyard, 146, 238. — v, Mills, 155, TABLE OF CASES, Avanzo v. Mudie, 453, Ayscough’s Case, 161. B. Backwell’s Case, 289, 297. Bagg’s Case, 443. Bailey v. Harris, 490, — v, Sweeting, 354. Baily v. De Crespigny, 481. Baines v. Swainson, 105. — v. Wormsley, 290. Baker, Ex parte, 226. — v. Berkeley, 395. Baldwin, Ex parte, 77. Ball, x parte, 147. Balls v. Attwood, 157. Bancroft v. Mitchell, 70. Bane v. Methuen, 433. Bank of England v. Anderson, 366. Bank of U. 8. v. Donnally, 184, Barber v. Gamson, 291, 301. —v. Tilson, 94, — v. Waite, 69. Barclay, Ex parte, 111. Barden v. Kennedy, 165, Barker v. Palmer, 457, Barnes v. Ackroyd, 89. — v. Shore, 104. Barrack v. McCulloch, 94. Barrow, Ex parte, 99. — v. Wadkin, 51. Bartholomew v. Freeman, 400. Bartlett v. Vinor, 483. — v. Kirkwood, 445. Barton Regis v. Liverpool, 260. Barton v. Pigott, 148, 288, 484. — v, Port Ji ackson Co., 489. —»v, R., 118, Barwick ». London 8. Bank, 89. Bateman v. Mid Wales Ry. Co., 438. — v. Service, 177. Bates v. Winstanley, 196. Bath v. White, 142, Battersby v. Kirk, 20. Battishill v. Reed, 425. Battye v. Gresley, 448, Baum, fe, 147. Baumann », James, 28, Digitized by Microsoft® TABLE OF CASES. XV Baxendale rv. G. E. Ry. Co., 247. — v. Hart, 283. Beal, Ex parte, 337. — v. Ford, 79. Beard v. Rowan, 52, 53. Beaufort v. Swansea, 374. Becke v. Smith, 3, 274, 277. Beckett v. Midland Ry. Co., 110. Beckford v. Wade, 101. Beckham v. Drake, 236. Beckworth v. Talbot, 354. Beddow v. Beddow, 97. Bedford v. Hood, 501. Bedo v. Sanderson, 135. Beds v. St. Paul, 162. Beer v. London and Paris Hotel Co., 353. Beeston v. Beeston, 487. Behn v. Burness, 29. Belasco v. Hannant, 56. Bell ». Bilton, 266. — v. Crane, 296. Bellamy v. Hoyle, 434. — v. Saull, 466. Bellew v. Wonford, 8. Benfieldside Local Board v. Consett Iron Co., 39. Benjamin v. Storr, 507. Bennett v. Atkins, 479. — v. Brunfitt, 47. — v. Daniel, 254, 390. — v, Edwards, 94, 339. — v. Watson, 99. Bensley v. Bignold, 488. Bent v. Roberts, 81. Bentham v. Hoyle, 362. Bentley v. Elphick, 128. — v. Rotheram, 51, 57. Berkeley v. Elderkin, 155. Berkeley Peerage, 248. Berry v. Cherryholm, 206, Berwick v. Andrews, 308. Bessey v. Windham, 253. Best, Ex parte, 478. —v. Pembroke, 43. Beta, The, 183, 280. Betham v. Gregg, 257. Biddell v. Leader, 492. Biddulph v. St. George’s Vestry, 146. Biffin v. Yorke, 4, 5. Biggs v. Mitchell, 403. Bill v. Bament, 353. Billings v. Prince, 448, Bills v, Smith, 137. Binns v. Hey, 272. Birch v. Lake, 194, Bird v. Adcock, 222, 514. Birkenhead Docks v. Laird, 222: Birkmyr v. Darnell, 180. Birley v. Chorlton, 153. Birmingham v. Shaw, 232. Bishop v. Bryant, 475. — v, Curtis, 100. Bishops, Case of, 509. Bitt v. Beeston, 400. Blackburn v. Parkinson, 157. Blackmore v. Mile End Vestry, 509. Blackwell v. England, 80. Blair, Hx parte, 177. Blake v. Attersoll, 404. —v. Midland Ry., 51. Blakemore v. Glamorganshire Canal Co., 364. Blankley v. Winstanley, 367. Blithman, Re, 177. Bloxome v. Williams, 255, 484. Blundell v. Gladstone, 28, Blunt v. Heslop, 422. Blyth v. Birmingham Waterworks, 436. Boast v. Firth, 471. Boden v. Smith, 190. Bolders v. Jackson, 135. Bolina, The, 321. Bolland, Ex parte, 21. Bolton ». Bolton, 477. Bonaker v. Evans, 445. Bonar v. Mitchell, 470. Bond v. Bond, 172. — v. Hopkins, 312. — v. Rosling, 392. — v. St. George, 79. Bones v. Booth, 387. - Bonham’s Case, 97, 180, 316. Bonnewell v. Jenkins, 353. Bonomi v. Backhouse, 8, Boodle v. Davis, 271. Boon v. Howard, 242, 306. Booth v. Bank of England, 137, — v, Clive, 278, Digitized by Microsoft® Xvi Booth v. Ibbotson, 366, Boothroyd, Re, 305. Bosanquet v. Woodford, 468. Bosley v. Davies, 237, 389. Bostock v. Staffordshire Ry. Co., 363. Boucicault v. Chatterton, 69. Bowlby v. Bell, 400. Bowman »v. Blyth, 451, 464. Bows v. Fenwick, 86, 417. Bowyer v. Bampton, 250. Boyce v. Higgins, 234. Poydell v. Drummond, 353. Boyfield v, Porter, 155. Bracey’s Case, 320. Bradbury v. Hotten, 237. Bradford Union vy. Wilts, 246. Bradlaugh, Ex parte, 154. Bradley v. Baylis, 82. — v. Greenwich Board, 19. —~ v. Southampton Board, 159. Bradshaw v. Lane, 308. Bramston v. Colchester, 220. Bramwell v. Penneck, 406. Brand v. Hammersmith Ry. Co., 110, 248. Brandling v. Barrington, 314. Braneth v. Havering, 101. Branston v. Colchester, 162. Brenan’s Case, 461. Brett v. Brett, 51, 56. Brewster v. Kitchell, 480. Bridge v. Branch, 154, 383. Bridgeman v, Fitzgerald, 409, Bridger v. Richardson, 403. Bridges v. Fisher, 486. Brig Ann, The, 518. Brigden v. Heighes, 142, 237. British Linen Co. v. Drummond, 185. Britt v. Robinson, 340. Broadbent v. Imperial Gas Co., 65. Broadhead v. Holdsworth, 332, Brodie v. Chandos, 138. Bromley v. Holden, 499. Brook v. Brook, 169, 172. Brookbank v. Whitehaven Ry. Co., 294, Brooke v. Millikin, 254, 312, TABLE OF CASES. Brooke v, Shadgate, 108. Brooker v. Wood, 87, 487. Brooks v. Bockett, 272. — v, Cock, 453. Broughton v. Manchester Water- works, 430. Brown v, Duncan, 490. -— Ex parte, 359. —v.G. E. Ry. Co., 489. —v.G. W. Ry. Co., 68, 187, 196. — v. Holyhead Board, 362, 493. — v. Howard, 7. — v. London (Mayor), 481. — v. London and N. W. Ry. Co., 80. — v. McLachlan, 394. — v. McMillan, 219, — Re, 107, 438. — v. Shaw, 457, 473. Brown’s Case, 335. Browne v. Collyer, 91 Browning, Ex parte, 492. Bruce, Re, 179. Brumfitt v. Bremner, 460. — v. Roberts, 109, 471. Brunskill v. Watson, 356. Brunton ». Griffits, 136, 377. Bruyeres v. Halcomb, 384. Bryan v. Child, 54, 64, 65, 354, 390. Buccleuch v. Metrop. B, Works, 372. Buchanan v. Kinning, 447. Buckhurst Peerage, The, 493. Buckinghamshire v. Drury, 69. Buckle v, Wrightson, 201, Bull ». Chapman, 484, Bult v. Price, 497. Bunny, Ex parte, 426. Burgess v. Wickham, 29. Burgess’s Case, 253. Burling », Harley, 278. Burn v. Carvalho, 519. Burnby v. Bollett, 120. Burns v. Nowell, 259. Burton v. Henson, 433. Bustros v. White, 289, 376. Butcher v. Henderson, 512, 514. Bute v, Grindall, 163. Buxton v. N. E, Ry. Co., 504, Digitized by Microsoft® TABLE OF CASES, Buxton v. Rust, 354, Byerley v. Prevost, 136. Cc. Calcutta Jute Co. v. Nicholson, 179. Calder v. Bull, 258. — and Hebble Nav. Co. v. Pilling, 362. — v. Halket, 243. Caldow v, Pixell, 452, 461. Caledonian Ry. Co. v. N. Brit. Ry. Co., 25. Cambridge Union v. Parr, 45. Cameron v. Cameron, 34. Campbell, Ex parte, 375. — «Im Thurn, 102. — v, Maund, 99. — v. Strangeways, 424. Candy v. Maugham, 165. Cane rv. Hastings, 353. Canterbury’s (Abp. of), Case, 417. Capel v. Child, 445. Carl Johann, The, 184. Carpue v. Lond. and Bright. Ry. Co., 278. Carr v. Royal Exch. Ass. Co., 56. Carron Iron Co. v. Maclaren, 81. Carruthers v. Sidebotham, 430. — Ex parte, 195. Carter v. Murcot, 117. Case v. Story, 399. Casher v. Holmes, 418. Cesena Sulphur Co. v. Nicholson, 81, 179. Castelli v. Groom, 290, 302. Caswell v. Worth, 206. Cates ». Knight, 154, 157, 390. Cathcart v. Hardy, 424. Catling v. King, 355. Chamberlain v. King, 279. — v. West End and Crystal Pal. Ry. Co., 110. Chamberlaine v. Chester Ry. Co., 501, 503, 506. Chambers v. Green, 154. — v. Manchester Ry. Co., 361, 456. Xvi Champion v. Plummer, 354. Chance v. Adams, 50. Chapman v. Chapman, 410. — v, Langton, — v, Milvain, 197. — v. Robinson, 234. — v. Shepherd, 130. Chappell v. Purday, 266. Charles v. Blackwell, 87. Charlotta, Re, 123. Charlton v. Hay, 502. Charlwood v. Bedford, 354. Charrington v. Meatheringham, 510. Charter v. Charter, 30. Chartered Merc. Bank v. Nether- land 8. N. Co., 184. — v. Wilson, 401. Chateauneuf v. Capeyrou, 455. Chatterton v. Cave, 237. Chelsea Vestry v. King, 327. Chelsea Waterworks v. Bowley, 410. Cherry’s Estate, Re, 17. Chick’ v. Smith, 424. Child v, Hearne, 419. Chilton v. London and Croydon R. Co., 363. China, The, 480 Chinnery v. Evans, 140. Chorlton v. Lings, 100. Christ’s Hospital v. Hawes, 101. Christopherson v. Lotinga, 16, 90, 306. Church v. Hubbard, 180. Churchill v. Crease, 202, 267, 510. Cigala’s Settlement, Re, 179. Clack v. Sainsbury, 203, 204. Clapham v. Langton, 30. Clan Gordon, The, 430. Clarence R. Co. v. G. N. of Eng- land, 435. Clark v. Denton, 493. — v. Gaskarth, 408. Clarke v. Bradlaugh, 424. — v. Bury St. Edmunds, 81. — v. Crowder, 284, 326. — v. Gant, 189, 460. — v. Powell, 43. — v. Roche, 146, 238. Clay v. Ray, 487. Digitized by Microsoft® XVIil Claydon.v. Green, 52. Clays v. Sudgrave, 369. Clayton’s Case, 424. Clementson v. Mason, 15, 39. Clifford ». Watts, 471. Clift v. Schwabe, 367. Cliquot’s Champagne, 35. Clothier v. Webster, 110, 436. Clow v. Harper, 372. Clowes v. Staffordshire Potteries, 364, Coalheaver’s Case, 428. Cobb, Ex parte, 147. — v. Mid-Wales R. Co., 351. Cobham »v. Dalton, 203. Cochran’s Estate, Re, 264. Cockerell v. Dickens, 177. Cocking v. Ward, 313. Coe v. Lawrence, 6, 332. —v. Wise, 124. Coggins v. Bennett, 426. Cohen, Ex parte, 145. Colbron v. Travers, 144. Colchester v: Brooke, 507. — v. Kewney, 70, 163. Cole v. Coulton, 225. — v. Green, 466, 470. Colebrooke v. Layton, 144, Coleman v. Birmingham, 99. Coles v. N. W. Bank, 105. Collier v, Worth, 330. Colliers v. Middle Level Commrs., 436. Collins v. Blantern, 134. — v. Gywnne, 492. — v. Rose, 425. Collinson v. Newcastle R. Co,, 499. Colman v. Upcot, 353. Colonial Bank y. Willans, 154, Colvill v. Wood, 47. Colvin v. Buckle, 7, Combe v. Pitt, 424, Commins v. Scott, 353. Cone v. Bowles, 351. Conservators of Thames v, Hall, 210. Constantine v. Constantine, 186. Cook v. Loveland, 448. — v, Ward, 448. Cookney v. Anderson, 357. Coomber v, Berks, 51. TABLE OF CASES. Cooper v. Habbuck, 11. — v, Simmons, 123. — v. Wandsworth Board, 444. — v. Whittingham, 495. — v. Woolley, 247. Cope »v. i 40, 170, 181, 182, 375. — v. Rowlands, 489. — v. Thames Haven R. Co., 456. Copeland, Ex parte, 44, 339, 392. Copeman v. Gallant, 57, 64. Copland v. Davies, 57. — v. Powell, 417. Copley v. Brown, 119, Corbet’s Case, 307. Corbet v. Haigh, 237. Core v. James, 38, 89, 119. Cork and Bandon Ry. Co. ». Goode, 408. Cork and Youghal Ry. Co., Re, 456, 483 Cornell v. Hay, 131. Cornhill v, Hudson, 269, 396. Cornish v. Hocking, 270. Cornwall Mining Co. v. Bennett, 456. Corporation of Newcastle v. The Attorney-General, 101. - Cortis v. Kent Waterworks, 92, 196. Costa Rica v. Erlanger, 270. Cotton v. James, 400 Couch », Steel, 500, 502, 503, 504, 509. Coulbert v. Troke, 426. Courtauld v. Legh, 385. Courteen’s Case, 76. Coverdale v. Charlton, 109, 377. Cowen, Ex parte, 147. Cowley ». Byas, 197 Cox v. Cannon, 479. — v. Leigh, 371. Cox's Trusts, Re, 411. Coxhead v. Mullis, 7. Cracknell v. Thelford, 436. Crake v. Powell, 289. Crane v. Powell, 353. Crawford v. Spooner, 4, Crawley v. Phillips, 103. Crespigny v. Wittenoom, 57, 404, Crisp v. Bunbury, 155. Digitized by Microsoft® TABLE OF CASES. Crisp v. Martin, 107. Crispin, Ex parte, 177. Croft ». Lumley, 137. Crofts v. Haldane, 112. Crooke’s Case, 161. Cross v. Watts, 142. Crouch v. Steel, 496. Cucktield Board, Re, 162, 216, 219. Cull v, Austin, 3, 42. Cullen v. Trimble, 159, 434. Culverson v. Melton, 15. Cumberland v. Copeland, 194, 209. Cuming »v. Toms, 88. Cumming v. Bedborough, 496. Cunard v. Hyde, 486. Cundell ». Dawson, 488. Curlewis v. Mornington, 311, 366. Curtis v. Embery, 389. Cushing v. Dupuy, 166. Custodes v. Jinks, 99. Cybele, The, 76. Czech v. Gen. St. Nav. Co., 247. D. Daglish, Ex parte, 111. Dahmodhar v. Deoram, 357. Dakins v. Seamen, 208. Dale, Re, 458. Dale’s Case, 216, 375, 449. Darel v. Jones, 108, 123. Dannebrog, The, 402. D’Arcy v. Tamar Ry. Co., 448, Dargan v. Davies, 244. Darvill v. Terry, 253. Dash v. Van Kleek, 258, 271. Davenport ». R., 252, 446. Davidson v. Burnand, 401. Davies v. Berwick, 406. — »v. Fitton, 144. — », Griffiths, 211. — v. Harvey, 124, 228, 341. Davis v. Bryant, 254. — v, Curling, 86. — v, Garland, 18. — v, Hardacre, 134. — v. Park, 177. — v, Strathmore, 313. — Ex parte, 362. xix Davison v. Farmer, 197. Davys v, Douglas, 399. Daw v. Metrop. Board, 196, 217, 222, Dawes v. Painter, 320, 328. Dawson, Ex parte, 261, 264, 272. — v. Fitzgerald, 152. — v. Midland Ry. Co., 85. Day v. Brownrigg, 97. — v. Savage, 180, 316. — v. Simpson, 135, 411. D’Almaine v. Boosey, 237. Dean v. Bennett, 363. — v. Green, 189. — v, Mellard, 513. — v. Reid, 4. Dearden v. Townsend, 362. De Beauvoir v. Welch, 296. De Begnis v. Armistead, 485. De Bode »v. R., 167. Deck v. Deck, 172. Deere, Re, 203. De la Vega v. Vianna, 185. De Londo’s Case, 404. Denn v. Diamond, 348. Dennis v. Thwaites, 279. — v. Tovell, 112. Dent v. Alcroft, 141. — v. Clayton, 304. D’Epineuil, Re, 112. Darhy v. Bury Commissioners, 209. De Rosaz, Re, 29. Dewhurst v. Fielden, 47, 397. De Winton v. Brecon, 202. Dews v. Riley, 384. Diana, The, 357. Dickenson v. Fletcher, 119. Dickinson v. N. E. Ry. Co., 74. — Re, 461. Dickson v. Neath Ry. Co., 16. Diggle v. London and Blackwall Ry. Co., 456. Dimmock ». Allenby, 395. Dimsdale v. Saddlers’ Co., 243. Dingley v. Moor, 514. Direct U.S. Cable Co. v, Anglo- Amer. Tel. Co., 25, 356. Diss v. Aldrich, 357. Ditcher v. Denison, 71. Ditton’s Case, 249. Dobell v. Hutchinson, 353. b 2 Digitized by Microsoft® XX TABLE OF CASES. Dobson v. Blackmore, 507. — Re, 139. Dodds v. Shepherd, 212. Doe v. Alsop, 313. — v. Bartle, 101. — v. Benyon, 28. — v. Bold, 258. — v. Brandling, 57. — v. Bridges, 496. — v. Carew, 24. — v, Carter, 137, 144. — v, Chambers, 134. — v. Curtis, 94, 98. — v. Gooch, 134. — v, Harvey, 69, — v, Holt, 512. — v. Jesson, 69. — v. Moffatt, 24. — v. Olley, 38. — v. Owens, 366. — v. Page, 258. — v. Powell, 91. — v. Ries, 374. — v. Roe, 56, 512. — v. Rugeley, 480. — v. Snaith, 348. — v. Waterton, 37, 93. Doggett v. Cattarns, 86, 416. Doherty v. Allman, 148. Dolphin », Layton, 70. Don v. Lippmann, 185. Donne v. Martyr, 78. Dore v. Grey, 376. Dorin v. Dorin, 74. Downing »v. Capel, 279. Dowse, The, 160. Doyle v. Falconer, 438. Drake v, Footitt, 342. Draper v. Glenfield, 99. Dresser v. Jones, 70. Drover v. Beyer, 70. Drummond v. Drummond, 34, 64, 358 Duck v. Addington, 40. Dudgeon v. Pembroke, 486. Dudley, Re, 435. Dudley Canal v. Grazebrook, 364. Duignan v. Walker, 426. Duke of Devonshire v. Barrow, 480. Dumfries, The, 184, 270. Dunbar v. Roxburghe, 368. Duncan ». Se. N. B. Ry. Co., 214. — Tindall, 255, 393. Dundalk Ry. Co. 2. Tapster, 156, 496. “Dundas v. Dutens, 76. Dunn v. Birmingham Canal Co., 436, Dunston v. Paterson, 79. Durant v. Withers, 140. Dutton v., Atkins, 250. Dyer v. Best, 369. Dyke v. Elliot, 340. Dyson v. London and N. W. Ry., 362, E. Earl of Auckland, The, 361. Earl Cornwallis, Re, 261. Earle v. Bowcroft, 126. Early’s Case, 148. East Anglian Ry. Co. v. E. C. Ry. Co., 431, 470. East Gloucestershire Ry. Co. v. Bartholomew, 108, 251. East India Co. v. Paul, 275, 474. East London Ry. Co. v. White- chureh, 49, 281. : East London Waterworks Co. ». Mile End, 410. East and West India Dock Co. v. Hill, 131. East v. Pell, 432. Eastern Archip. Co. v. R., 398. Eastern Counties Ry. Co, v. Mar- riage, 65. — Re, 168. Eastwood v. Miller, 341. Eaton v. Basker, 470. Ebbs v. Boulnois, 277. Ecclesiastical Commrs. v. N. E. Ry. Co., 8. Ecclesiastical persons, 166. Eddington v. Borman, 214. Eddlestone v. Barnes, 229, 342 Edgeware Highway Board v. Har- row Gas Co., 384, Case of, Digitized by Microsoft® TABLE OF CASES, Edinburgh Tramways Co. v. Tor- bain, 25. Edmundson, Re, 198. Edward v. Trevellick, 115. Edwards v. The Aberayron Mutual Ship Ins. Soc.(Lim.), 152,353 — v, Coombe, 155. — v. Dick, 108, 250. — v. Edwards, 136, 314. — v. Hall, 141. — v. Rusholme, 55, 64. —v. R., 494, 425. Eggington v. Lichfield, 425, Ella Clarke, The, 429. Ellerton, Ex parte, 208. Elliot v. Richardson, 485. Elliott v. Majendie, 327. — v. Swartout, 74 Ellis v. Kelly, 123. — v. McCormick, 320. Elston v. Braddick, 261. — v. Rose, 46. Ely, Dean of, v. Bliss, 199. — v. Cash, 199. Emanuel v. Constable, 56, 64. Emerson v. Newfoundland, 443. Enderby v. Gilpin, 135. Englishman, The, 243. Erichsen v. Last, 179. Eslick, Re, 111. Etherington v. Wilson, 141. Evans v. Jones, 18. — v. Rees, 311, 352. — v. Stevens, 69, 418. — v. Williams, 264. Evans’ Case, 48. Evatt v. Hunt, 404. Everard v. Kendall, 160. Everett v. Wells, 3, 17. Eversfield v. Mid Sussex Ry. Co., 364. Explorer, The, 183. Eyre v. Waller, 47. Eyston v. Studd, 27, 115. F. Fanny Carvill, The, 243. Farley v. Bonham, 34, 218. — v. Bryant, 63. XX1 Farrell v. Tomlinson, 8, 9. Feather v. R., 373, 398. Fellowes v. Clay, 57, 62. Fennell v. Ridler, 346, 484. Fenton v. Hampton, 438, Fenwick v. E. London Ry. Co., 72, 364. — v. Schmaltz, 406. Fergusson, Re, 86, 334. — v. Norman, 491, Fielding ». Rhyl, 362. Finch ». Finch, 185. Firebrace v. Firebrace, 169. Fisher v. Bright, 4. — v. Howard, 82. Fishmongers’ Co. v. Dimsdale, 349. Fitzgerald v. Champneys, 213, 216. Fitzpatrick v. Kelly, 38, 394. Flannigan v. Bishop Wearmouth, 324. Fleming v. Self, 106. Fletcher v. Calthrop, 158, 319. — v. Hudson, 321. — v. Rylands, 438. — v. Sondes, 320, 419. Flight v. Salter, 144. Flower v. Lloyd, 357. — v. Lord Leyton, 244, Floyer v. Edwards, 134. Foley v. Fletcher, 320, 346. — v. Inland Revenue Com., 209. Folkestone Corp. v. Woodward, 335. Foot v. Truro, 465. Forbes v. Cochrane, 176. — v, Eccles. Com., 102. — v. Lee Cons. Board, 439. — v. Smith, 276. Ford, Re, 373. — v. Drew, 79. — v. Hart, 79. — v. Kettle, 10, 248. —v. Pye, 79. Forsdike v. Stone, 423. Forster v. Taylor, 488. Forth v. Chapman, 283. Foster v. Gt. W. Ry. Co., 98. — v. Oxford, &., Ry. Co., 489. Foster’s Case, 190, 198. Fotherby v. Metrop. Ry. Co., 501. Foulger v, Steadman, 124, Fowler v. Padget, 285, Digitized by Microsoft® X¥xil Fox v. Wallis, 457. Foxon v. Gascoigne, 16. Francis v. Dodsworth, 70. — v. Maas, 63. Franconia, The, 183, 385. Frankland, Re, 43, 432. Franklin v. B. of England, 313. Fraser v. Hill, 486. Fredericks v. Howie, 411. Free v. Burgoyne, 51, 105. Freeman v. Appleyard, 400. — v. Moyes, 272. — v. Read, 150, 193, 422, 476. — v, Tranch, 18. Freemantle v. London and N. W. Ry. Co., 436. Freestone, Hx parte, 399. Freke v. Carbery, 177. Fremington School, Re, 446. Frend v. Dennett, 456, 469. Fricke v. Poole, 319. Fritz v. Hobson, 216. - Fuentes v. Montes, 105. Fuller v. Redman, 19, 509. Furnivall v. Coombes, 188. Fusilier, The, 69, 76. G, Gale v. Laurie, 356, 396. Galena v. Amy, 299. Gallini v. Laborie, 485. Galloway v. M. of London, 365. — »v. Maries, 417, Gambart v. Ball, 94, 330. — v. Sumner, 194. Garby v. Harris, 276. Gardner v. Lucas, 260, 271. — v. Whitford, 193, 219. Garland v. Meade, 100. Garnett v. Bradley, 199, 193, 213. Gaskell ». King, 384, 493. Gaslight Co. v. Turner, 486. Gatty v. Fry, 146, 238. Gaudet v. Brown, 23, 160. Gauntlett, The, 320. Gay v. Matthews, 211. Gearns v. Baker, 437. Geddis v. Bann Com., 436. Geere v. Mare, 487. TABLE OF CASES, General Iron Screw Co. v. Schu- manns, 184, General St. Nav. Co, ». Brit. and Col. St. Nav., 396. — v. Guillon, 185, Gibbs v. Guild, 8. — v. Lawrence, 409. —— v. Liverpool Docks, 110. — v. Stead, 423. Giblett v. Hobson, 138.. Gibson v. Holland, 189, 354. — v. Preston, 205, 508. Gildart v. Gladstone, 364. Giles v. Grover, 165, 425. Gilmore v. Shuter, 258. Girdlestone », Allan, 291. Glasgow Ry. Co. », Hunter, 110. Gleaves v. Marriner, 461. Glossop v. Heston, 506. Goddard, Re, 493. Golding v. Stocking, 338. Goldshede v, Swan, 30. Goldsmid v, Hampton, 44, 374. Goldson v. Buck, 218. Gordon v. Howden, 486. — v. Jennings, 407. Gore v. Grey, 191. Goreley, Ex parte, 45, 59, 396. Gorham v. Exeter (Bp.), 30, 370. Gorris v. Scott, 508. . Gover’s Case, 502. Gough v. Davies, 58. Grace v. Bishop, 77, 243. - Graham v. Ewart, 378. — v. Ingleby, 476, 478. Grant v. Ellis, 199. — v. Kemp, 272. Graves v. Ashford, 94, 330. — v. Legg, 29. Gray v. Cookson, 223, 253. — v. Pullen, 439. —v. R., 428. Great Australian Co. v. Martin, 357. = Central Gas Co. v. Clarke, 21. Great Charte v. Kennington, 97. Great Eastern Ry. Co. v. Wanless, 441. oe Northern Ry. Co. », Ivett, 479. Digitized by Microsoft® TABLE OF CASES. Great Western Ry. Co. v. Bailie, 127, — v. Bishop, 327. —v. R., 294, 359, GreatRead v. Morley, 378. Green v. Gray, 254. — — v. Jenkins, 212, 456. —v. B., 222, 347. — v. Wood, 24, 306. Greenhow v. Parker, 341. Greenway v. Heard, 278. Greenwood, Ex parte, 282. — v. Greenwood, 304. —v. Hammersley, 493. Gregory’s Case, 213. Gregson v. Potter, 454. Greig v. Bendeno, 56. Grenfell v. Inland Rev. Com., 178 Grey v. Pearson, 3. Grieves v. Case, 35. Griffith v. Taylor, 279, 423. Griffiths, Ex parte, 137. —v. Wells, 484. Grills v. Screw Collier Ry. Co., 4, 128. Grimes, Ex parte, 85. Grindlay v. Barker, 448. Grisewood v. Blane, 135. Grocers Co. v. Donne, 436. Groom, Re, 178. Gulfaxe, The, 183. Gunnestad v. Price, 23, 160. Guthrie v. Fisk, 432. Gwyn v. Hardwicke, 368. Gwynne v. Burnell, 310, 462. Gye v. Felton, 256. H. Habergham v. Vincent, 477. Hacking v. Lee, 362. Hadden v. The Collector, 50. Hadley v. Perks, 388, 403. Haigh v. Kaye, 312. — v. Sheffield, 341. Haldane v. Beauclerk, 389. Hall v. Bristol, 110. — v. Knox, 284. — v. Maule, 164. xxiii Hall v, Nixon, 362, 434, 493. — v. Planner, 433. — v. Pritchett, 70, — v. Wright, 471. Halsey v. Hales, 73. Halton v. Cove, 52. Hamilton v. Dallas, 179. Hammersmith Ry. Co. v. Brand, 65, 436. Hammersmith Rent Charge, Re, 445, 447. Hampden v. Walsh, 128. Hampton v. Rickards, 183. Hancock v. Lablache, 20, 304. Haney’s Trusts, Re, 184. Hanmer v. Chance, 107. Harben v. Phillipps, 456. Harbert’s Case, 97. Harden v. Hesketh, 199. Harding v. Headington, 143. Hardy v. Ryle, 425. Hardyman v. Whitaker, 240. Harford’s Trusts, 361. Hargreaves v. Diddams, 123. Harlock v, Ashberry, 140. Harper v. Carr, 445. — v. Taswell, 308. Harrington v. Ramsay, 286. Harris v. Boston, 135, — v. Franconia, 175. — v. Jenns, 197, 411. Harrison, Ex parte, 471. — ». Blackburn, 409. — v, Carter, 400. —v. London and Brighton Ry. Co., 281. — v, Stickney, 246. Harrison’s Case, 398. Harrod v. Worship, 347. Hart v. Herwig, 178. Hartley v. Hooker, 158. Hartnall v. Ryde Commissioners, 124, 508. Harvey v. Archbold, 134. Hasluck ». Pedley 259. Hastings, Re, 203. Hattersley v. Burr, 362. Hawes v. Paveley, 154. Hawkins v. Gathercole, 27, 200. — v. Walrond, 201. Hawtrey v. Butlin, 111. Digitized by Microsoft® XXiV Hayes v. Stephenson, 326. Hayman v. Flewker, 64. Hayward v. Gifford, 352. Hearne v. Garton, 119. Heath ». Heap, 324. Hebbert v. Purchas, 33, 370, 371, 515. : Hedworth v. Jackson, 33. Heelis v. Brown, 41. Helps v. Glenister, 482. Hemstead v. Phoenix Gas Co., 34. Henderson v. Bise, 329. — v. Maxwell, 453. — », Royal British Bank, 467. — v. Sherborne, 225, 321, 345. Henley, Re, 164. Henrette v. Booth, 48. Henry v. Newcastle Trinity H., 10. Herbert’s Case, 213. — v. Sayer, 46, 130. — v, Treherne, 47. Hermann v. Seneschal, 279. Herschfield v. Clarke, 90. Hertford Union v, Kimpton, 157. Heseltine v. Siggers, 400. Hesketh v. Atherton, 447. Hewer v. Cox, 80. Hewitt’s Estate, 178. — v. Price, 329. Heydon’s Case, 84, 333. Hicks, Ex parte, 425. Hickson v. Darlow, 259. Hider v. Donell, 87. Higginson ». Simpson, 135. Higes v. Schroeder, 17. Hill, Hx parte, 68, 419. — v. Crook, 29. — v. Hall, 205. — v, London & Co. Ins. Co., 298, Hilliard v. Lenard, 267. Hillman, £2 parte, 71. Hills v. Shepherd, 127. Hind v. Arthur, 17. Hinde v. Chorlton, 108. Hinton v. Dibben, 16, 51. Hipkins v». Birmingham Gas Co., 122, 364. Hirst v. Molesbury, 408. Hitchcock v. Way, 266, 513. Hobbs v. Henning, 487. Hobson v. Neale, 273, 512, TABLE OF CASES. Hodgkinson v. Wyatt, 513. Hodgson v. Carlisle, 162. — v. Jex, 410. —v. Temple, 486, 490. Hodsden v. Harridge, 311. Hodson v. Sharpe, 127, 256. Holborn Union v. St. Leonards, 500. Holgate v. Slight, 482. Holland, Ex parte, 432. Holliday v. St. Leonard, 124. Hollingworth v. Palmer, 24, 274. Hollis v. Marshall, 234. Holman v. Johnson, 486, 487. Holme v. Guy, 32. Holmes v. Clarke, 504. — v. Service, 18. Hope v. Hope, 358. Hopkins v. Crowe, 279. —v. G. W. Ry. Co., 110. Hopper, Re, 449. Hopton v. Thirlwall, 120. Horn v. Ion, 392. Horsfall v. Davy, 499. Howard v. Boddington, 452, 459. Howe v. Synge, 493. Howell v. Coupland 471. — v. London Dock Co., 290. Howes v. Inland Revenue Bad., 399. Hoyland v. Brenmer, 107, 252. Hoyle v. Hickman, 338. Huber v. Steiner, 185. Huckle v. Wilson, 155. Hudson v. Edé, 29. — v. McRae, 123. — v. Tooth, 34, 360. Hudston ¢. Midland Ry. Co., 389. Huggins v. Bainbridge, 161, 165. Hughes v. Buckland, 278. — »v. Chatham, 140. — v. Chester, 64. — Ex parte, 406. — v, Lumley, 273. — v. Morris, 312, 393. Hull Bank, Ez parte, 471. Hull Dock Co. v. Browne, 346, 349, 364, — v. La March, 364. Humble v. Mitchell, 47, 400. Humfrey v. Gery, 203. Humphreys v. Green, 312.. Digitized by Microsoft® TABLE OF CASES. ‘Hungerford Market Co. v, City Steam B. Co., 475. Hunt v. Hibbs, 460. —v. G. Northern Ry. Co., 199. — v. Wimbledon Loc. Bd., 469. Hunter v. Gibbons, 8. — vw. Nockolds, 50, 208. — v. Potts, 177. Hussey’s Case, 99. Hutchins, Ex parte, 260, — v. Player, 213, 217. Hutchinson v, Gillespie, 497. — v. Greenwood, 352. Hutton v. Scarborough Hotel, 363. Huxham v. Wheeler, 217. Hyde v. Johnson, 46, 89, 395. I. Iles », West Ham Union, 237, 348. Imperial Gas Co. v. London Gas 0., 7. Im Thurn, 102. India, The, 185, 198, 515. Indian Chief, The, 76. Industry, The, 229, 345, 346. Ingate v. Austrian Lloyds, 398. Inglis v. Grant, 170. Ings v. London & 8. W. Ry. Co., 268. Internat. Pulp, &., Co., 178. Iona, The, 357. Ionides v. The Pacific Insurance Co., 132. Trish Peat Co. v. Phillips, 456. Ironsides, The, 271. Irresistible, The, 513. Isherwood v. Oldknow, 373. Iveson v. Moore, 506. J. Jackson v. Barnham, 46, 130. — v. Beaumont, 478. — v, Spittall, 184. — v. Woolley, 263. Jacobs v. Brett, 152, 154. James v. 8. E. Ry. Co., 158, 474. XXV Jameson v. Brick Co., 180. Jaques v. Withy, 513. Jarman, Ex parte, 297, 389. Jeffreys v. Boosey, 50, 181, 182, 194. — v. Evans, 405. Jeffries v. Alexander, 133, 135, 139, 144. Jenkins v. Briant, 63. — v. Jones, 209. Jennings v. Hammond, 484. Jesson v. Wright, 248. Jestons v. Brooke, 134. Jesus College Case, 101. Jewell v. Stead, 426. Jewison v. Dyson, 367. Johannes, The, 177, 180. Johnson v. Crédit Lyonnais, 105. — v. Colam, 159. — Ex parte, 8, 407. — v. Harris, 72. — v. Hogg, 401. — v. Hudson, 490. — v. Upham, 51, 308. Jolly v. Hancock, 451. Jones, Hx parte, 70, 347, 432. — v. Bird, 436. — v, Carmarthen, 432. — v. Festiniog Ry. Co., 437. — v. Harrison, 289, 296. — v. Johnson, 246. — v. Mersey Docks Co., 148, 375. — v. Ogle, 258. — v. Smart, 14. — v, Taylor, 124. — v. Thompson, 70. —v. Victoria Dock Co., 356. — v. Victoria Graving Dock, 180. Jory v. Orchard, 87. Joyce v. Booth, 479. Julius v, Oxford, 292. 354, K. Kay v. Goodwin 510. Kearns v. Cordwainers’ Co., 64, 401. Keighley’s Case, 147. Kenarthy v. Scofield, 353. Digitized by Microsoft® XXV1 Kennedy v. Gibson, 304. Kent v. Worthing Loc. Bd., 508. Kenyon v. Hart, 108. Kerrison v, Cole, 493. Keysham v. Baker, 61. Kibble, Ex parte, 265. Kielly v. Carson, 438. Kimbray »v. Draper, 271, 273. Kine v, Evershed, 279. King v. Cook, 163. — v, George, 405. — v. Low, 142. Kingsford v. .G. W. Ry. Co., 16, 90. . Kinning’s Case, 447. Kirk v. Todd, 8, 248. Kirkpatrick v. Tattersall, 47. Kirkstall Brewery, Re, 385. Kitchen v. Bartsch, 367. — v. Shaw, 406. Kite and Lane’s Case, 158. Kitto v. Liskeard, 85. Knight v. Crockford, 47. — v. Farnaby, 315. — Re, 199. Knubley v. Wilson, 307. Kronheim v. Johnson, 353.] Kwok Ah Sing v. Atty.-Genl., 84. Kyle v. Jeffreys, 194. Kynaston v. Mackinder, 423. L. Lade v, Trill, 474. Lafone v. Smith, 135, Lake v. Butler, 426. Lakeman ». Stephenson, 340. Lamb »v. N. London Ry. Co., 364. .— v. Walker, 8. Lambert v. Hutchinson, 91. — v, Taylor, 164. Lancashire v. Shelford, 162. Lancaster v. Greaves, 407. — Re, 87. Lane v. Bennett, 40. — v. Cotton, 93. Lang v. Kerr, 65. Langham Rink Co., Re, 411. Langrishe v. Archer, 338. Langton v. Hughes, 482, 486. TABLE OF CASES, Larchin v. N. W. Bank, 80. Larker v. Hordern, 30. Larpent v. Bibby, 261. Latham v. Hyde, 489. — v. Lafone, 65. Latless », Patten, 518. Law v. Hodson, 487. Law Society v. Shaw, 325. Lawman v. Audley, 357. Lawrence v. G. N. Ry. Co., 436. — v, King, 45, 396. — v. Wilcock, 478. Leach v. Jay, 73. — v. North Staffordshire Ry. Co., 440. Lead Smelting Co. v. Richardson, 397 Learoyd, Ex parte, 234, Leath v. Vine, 123. Lee v. Bude Ry. Co. 147, 235, 316. — v, Simpson, 116. Lees v. Newton, 70. . — v. Summergill, 56. Leete v.- Hart, 279. - Le Feuvre v. Miller, 455,466. Legg v. Pardoe, 118! Leggatt v. G. N. Ry. Co.,:308. Leicester v. Burgess, 217. “aa Leigh v. Kent, 157, 367, 368, 515, 517. Leith Comm. v. Poor Inspectors, 162. Le Louis, 174, 176, 180. Leman v. Housley, 266. Lemane ». Stanley, 47, 355. _ Le Neve v, Le Neve, 313. Leominster Canal Co. »v, Shrews- bury, &., Ry. Co., 455, Leon, The, 185. ; Leroux v. Brown, 173, 180. Leslie v, Richardson, 91. Lester v. Foxcroft, 312. — v. Garland, 421. — v. Torrens, 287, 245. Lester’s Case, 212, Le Sueur v. Le Sueur, 169. Levi v. Sanderson, 510. Levy v. Yates, 485. Lewes v. Barnett, 246, 250, Lewis v, Arnold, 82. Digitized by Microsoft® TABLE OF CASES. Lewis v. Carr, 346. — v. Davis, 464. — Ex parte, 136, 236. —v.G. W. Ry. Co., 29. — Re, 236. Lichfield v. Simpson, 500. Liffen v. Pitcher, 422. Lightfoot v. Tennant, 487. Lincoln College Case, 252. — v. Wright, 312. Lindsay v. Barron, 179. — v. Leigh, 319. Linton v. Blakeney Co-op. Soc., 513. Lismore v. Beadle, 478. Little v. Poole, 488. Littledale’s Case, 129. Liverpool Borough Bank v. Turner, | 392, 452, 455, 466. Llandaff Market Co. v. Lyndon, 217. Lloyd, Ex parte, 376. Lobb ». Stanley, 47. Lolley’s Case, 169. London and Blackwall Ry. Co. v. Limehouse Board, 217. London and Brighton Ry. Co. ». Watson, 497, 498. London and Grand Junction Ry. Co. v. Freeman, 467. London & 8. E. Ry. Co. » Flower, 439. London Cotton Co., The, 39. — City of, v. Wood, 180, 316. — Joint Stock Bank v. Mayor of London, 380, 398. — Waterworks Co. v. Bailey, 106. Long wv. Grey, 384. Longman v. East, 358. Looker v. Halcomb, 158. Lopez v. Burslem, 185. Lorant v. Scadding, 465. Lord v. Lee, 91. — Re, 272. Lovering v. Dawson, 447. Low v. Routledge, 76, 453. Lowther v. Bentinck, 415. — v. Radnor, 407. Lucraft v. Pridham 219. Lucy v. Ingram, 430. Lundy Co., Re, 347. XXV11 Lunt v. London and N. W. Ry. Co., 441. Lyde v. Barnard, 383, 305. Lyme Regis v. Henley, 507. Lyn v. Wyn, 212. Lyon v. Fishmongers’ Co., 365, 506. M. Mac, The, 86. Macbeth v. Astley, 142, 150. Macclesfield’s (Lord) Case, 49. Mackay, Ex parte, 136. McAlister v. Rochester (Bp.), 474. McCalmont v. Rankin, 393. McCarthy v. Metrop. Board, 110. McDougal v. Paterson, 3, 79, 289, 296, 297. McGregor v. Deal, &., Ry. Co., 470. McKinnon ». Penson, 508. McLean v. Nicoll, 354. McMaster v. Lomax, 33. M‘William v. Adams, 40. Mace v. Cadell, 60. — v. Philcox, 439. Madrazo v. Willes, 176. Magdalen College Case, 133, 166. — Hospital v. Knotts, 251, 252. Maggi, Re, 112. Magnet, The, 243. Makin v. Watkinson, 439. Maleverer v. Redshaw, 491. Malins v, Freeman, 251. Mallan v. May, 3. Manchester (Mayor) v. Lyons, 197. Manley v. St. Helen’s Co., 440. Manning v. Phelps, 199. Mansell v. R., 199. Margate Pier Co. v. Hannam, 464. Maria, The, 430. Marianna Flora, The, 179. Marine Mansions Co., Re, 468. Markham »v. Stanford, 474. Marks v. Benjamin, 344. Marsden, Ea parte, 448. — v. Meadows, 111, 136. Digitized by Microsoft® XXVH1 TABLE Marsden ». Savile Foundry, 11. Marsh v. Higgins, 261, 267. Marshall v. Bp. of Exeter, 367. — v. Brown, 107, 252. — v. Martin, 211. — v. Nicholls, 155. — v. Pitman, 148. — v. Ulleswater Co., 506. Marson v. Lund, 290. Martin, Ex parte, 433. — v. Ford, 339. — v. Hemming, 34. — vv. Maconochie, 450. Mason v. Aird, 279. — vv. Barker, 469. Massey v. Burton, 140. — v, Sladen, 423. Massy v. Johnson, 425, Masters v. Child, 139. — Re, 56. Mather v. Brown, 454. —v. Fraser, 111. — v. Scott, 138. Mathieson v. Harrod, 453 Mattison v. Hart, 3. Maurice v. Marsden, 497. May, Ex parte, 232. — v. Grant, 4. —v. G. W. Ry. Co., 346. Mayer v. Harding, 472. Mayhew »v. Wardley, 239, 338, 378. Mercers v. Bowker, 316. Merchant Taylors v. Truscott, 218. Mersey Docks Co. v, Cameron, 162. Mersey Docks v. Lucas, 193, 219. Metrop. Asylums District v. Hill, 436. Metrop. eae v. Metrop. Ry. Co., 43 — v, Steed, 286. Mette v. Mette, 169. Mew, Re, 33. Michell v. Brown, 226, 227. Micklethwaite, Re, 349. Middleton v. Chichester, 250. — v, Crofts, 226. Midland Ry. Co. v. Pye, 5, 257, 262. Mignault v. Malo, 372. OF CASES, Migotti v. Colville, 422. Miles v. Bough, 89. Mill v». Hawker, 384. Miller’s Case, 510. Miller v. Salomons, 5, 13, 248, 274, 310. Mills v Scott, 429. — v. Wilkins, 50. Milton v. Faversham, 330. Minet v. Leman, 96, 219. Minor v. London & N. W. Ry. Co., 80, 402. Mirehouse v. Rennell, 4. Mirfin v. Attwood, 510. Mobbs v. Vandenbrande, 352. Mohammed ». Bareilly, 9. Mollwo v. Court of Wards 379. Molton v, Camroux, 479. Monck v. Hilton, 68. Monkleigh, Ex parte, 448. Monks v. Jackson, 88, 90. Montague v. Smith, 389. Montreal (Mayor of) v. Stevens, 359. Montrose Peerage, 367. Moon v. Church, 442, — v, Durden, 259. Moore v. Smith, 166. Morant v. Taylor, 50. Morden ». Porter, 116, 118. Moreton v. Holt, 155. Morgan v. Brown, 239. — v. Crawshay, 470, 397. — v. Davies, 421. — v. Edwards, 457, 471, 472, 479. — v. Metrop. Ry. Co., 364. — v. Palmer, 279. — v. Thorne, 510, 512. Morish v. Harris, 410, 412. Morisse v. Royal Brit. Bk., 188, 298. Morrall v. Sutton, 69, 186. Morris v. Mellin, 254, 375, 390. — v. Wilson, 353. Morrison v. Gen. Steam Navig. Co. 219. — v. Grover, 106. Morritt v. N. E. Ry. Co., 16. Morse v. Tucker, 63. . Morton v. Copeland, 87. Digitized by Microsoft® TABLE OF CASES. Morton »v. Palmer, 82. Mosdel v, Middleton, 491. Mostyn c. Fabrigas, 180. Motteram v. E. C. Ry. Co., 305. Mouflet v. Cole, 426. Mounsey »v. Imray, 34, 402. Mount »v. Taylor, 510. Mountcashel v. O’ Neil, 88. Mountjoy v. Wood, 164. Mouys v. Leake, 492. Moyce v. Newington, 103. Moyle wv, Jenkins, 36. Much Waltham v. Peram, 139. Muggeridge, Re, 77. Muir v. Hore, 204. — v. Keay, 399. Muirhead, Ex parte, 70. Mulkern v. Lord, 106, 156. Mulliner v. Midland Ry. Co., 438. Mullins v. Collins, 124. Munday v. Asprey, 353. Mundy v. Rutland, 24. Munro v. Butt, 248. Murphy, Re, 200. Murray v. Charming Betsy, 174. —v. E. I. Co., 393. — v. Thorniley, 41. Myers v. Veitch, 42, 390. N. National Merc. Bank, Ex parte, 21, 332. Nazer v. Wade, 18. Neath v. Brecon Ry. Co., Re, 297. Nelson v. Alcard, 13. Nesbitt v. Lushington, 401. Nethersoll v. Indig. Blind, 442. Nettleton v. Burrell, 17. Newby v. Colt’s Arms Co., 81. Neweastle v, A.-G., 367. — v. Bradley, 374. — v. Morris, 216, 377. Newington v. Cottingham, 481. Newman v. Hardwicke, 421. Newport Bridge, fe, 291. — The, 125. — Trustees, Hx parte, 429. Newry Ry. Co. v. Edmunds, 8. XX1X New River Co. v. Johnson, 110. Newton v Boodle, 17. — v, Cowie, 453. — v. Ellis, 86, 278, 407. — v. Young, 246. Nea Hoong v. R., 76, 175 Niboyet v. Niboyet, 169. Nicholl v. Allen, 294, 439. Nichols v. Marsland, 471. Nicholson v. Ellis, 236. —v. Fields, 319, 321, 345, 346, 349, — v. Hood, 87. Nicolls v. Hall, 119, Nina, The, 185. Nitro-phosphate Co. v. St. Kathe- rine Dock Co., 507. Nixon v. Phillips, 5, 204. Noble x. Durell, 373. — v. Gadban, 260. Nolley v. Buck, 4. Norcutt v. Dodd, 77, 94. Norden v. James, 170. Norris v. Carrington, 471. — v, Crocker, 225, N. London Ry. Co. v. Metrop. B. of Works, 365. N. Staffordshire Ry. Co. v. Dale, 440. Norton v. Lond, & N. W. Ry. Co., 363. — v. Simmes, 491. Noseworthy v. Buckland, 454, Novello v, Sudlow, 501. — v. Toogood, 132. Nowell v. Mayor, &c., of Worcester, 470. Nugent v. Smith, 470. Nunn », Fabian, 312. 0. Oakes v. Turquand, 253. O’Connor v. Bradshaw, 187. Odell, Hx parte, 136. O'Flaherty v. McDowell, 27, 197. Ogden ». Benas, 129. Ogilvy v. Foljambe, 47. Ohrby v. Ryde Commissioners, 124. Oldfield v. Dodd, 286. Digitized by Microsoft® XXX Oliver v. N. E. Ry. Co., 440. O’Loghlen, Ex parte, 177, 233. Oram v. Brearey, 154, 155. O’Reilly v. Thompson, 312. Orme’s Case, 29. Ornamental Wood v. Brown, 4. O’Shanassy v. Joashim, 101. Oswald v. Berwick, 480. Owen v. Body, 384. — v. Burnett, 59. — v. Saunders, 193. Owens v. Woosman, 207, 226. Oxford v. Wildgoose, 40. Bs Pacific, The, 69. Padstow Assur. Assoc., Re, 385, 484. Page v. Bennett, 265. — v. Pearce, 423. — Re, 147. Paget v. Foley, 203. Painter v. Liverpool Gas Co., 445. Pallister v. Gravesend, 365, 493. Palmer v. Metrop. Ry. Co., 476. — Re, 248. — v. Thatcher, 7, 202. Paradine v. Jane, 471. Parbury, Ex parte, 251. Pardo v. Bingham, 269. Park Iron Gate Co. v. Coates, 476, 478, 479. Parker v. G. W. Ry. Co., 364. — Re, 485. — v. Taswell, 392. Parkes v. Prescott, 126. Parkins v, Preist, 330. Parry v. Croydon Gas Co., 221, 227, 349. Parsons v. Bethnal Green, 507. — v. St. Matthews, 124. Partheriche v. Mason, 437. Partington v. Attorney-Gen., 348. Parton v. Williams, 278. Partridge v. Naylor, 240, 242, 502. Pascal, Ex parte, 177. Patent Bread Co., Re, 468. Patorni v. Campbell, 179. Patten v. Rhymer, 237, 345. Patterson v. Patterson, 70. TABLE OF CASES. Patteson v. Banks, 57. Paxton v. Popham, 486. Payne, Ex parte, 155, 214. Peacock v. Reg., 425, 479. Pearse v. Morrice, 256. Pearson v. Hull, 327. — v. Kingston, 412. Pease v, Chaytor, 425. — v. Norwood, 425. Peate v. Dicken, 406. Peerless, The, 97.. Pelham v. Pickersgill, 497. Pellew v. Wonford, 422. Pender v. Lushington, 141. Pendlebury v. Greenhalgh, 509. Penny v. S. E. Ry. Co., 154. Penstred v. Payer, 35. ; People, The, v. Tibbetts, 271. — vw. Utica Insur. Co., 52, 65. Peppin v. Cooper, 206. Perchard v. Heywood, 363. Perkins v. Sewell, 57. Perks v. Severn, 319. Perring v. Trail, 442. Perry v. Skinner, 248, 262, 281. Peshall v. Layton, 245. Peters v Cowie, 99. — v. Sheehan, 479. Peto v. West Ham, 397. Pettamberdass v. Thakoorseydass, 259. : Pharmaceutical Society v. London Supply Assoc., 76, 398. Phillipp’s Charity, Re, 446. Phillips, Re, 135. — v. Clark, 247. — v. Hopwood, 509. — v. Hunter, 177. — v. Poland, 243. Philpott v. St. George’s Hospital, 134, 138, 141. Philpotts v. Philpotts, 107, 253. Philps v. Winchcomb, 87. Phipson v, Harvett, 196, 222. Phenix Bessemer Co., Re, 261, 273. Pickard v. Marriage, 136, Pickering v, James, 441, 501. — », Ilfracombe Ry. Co., 492. — v. Marsh, 232. — v. Noyes, 377. Digitized by Microsoft® TABLE OF CASES. Pickup v. Wharton, 272. Pierce v. Hopper, 12, 158. Piggott v. Rush, 311. Pike v. Hoare, 4. — Nicholas, 237. Pilcher v. Stafford, 342. Pilkington v. Cooke, 202. Pinhorn »v. Sonster, 272, 273. Pinkerton v, Easton, 17. Pitman v. Maddox, 376. Pitt vr. Shew, 308.. Pitts v. Millar, 326. Planché v. Braham, 237. Plasterers’ Co. v. Parish Clerks’ Co., 5. Platt v. Lock, 309. Pochin v. Duncombe, 368. Poland, Re, 77, 243. Pollard, Re, 443. Ponsford v. Walton, 132. Pope v. Tearle, 394. Postmaster v. Early, 381, 383. Postmaster-General, Re, 164, 166. Potter v. Duffield, 355. — v. Newman, 91. Poulsum v. Thirst, 86. Poulterers’ Co. v. Phillips, 243. Powdrell v. Jones, 37. Powell v. Boraston, 410. — v. Fall, 438. Preece v. Pulley, 361. Prentice v. London, 106, 156. Prices of Wine, The, 376. Prince v. U. 8., 260. Pritchard v. Arbouin, 138. Proctor v. Manwaring, 200, 321, 341. Protector, The, 357. Purdy v. Smith, 374. Q. Quartz Hill Co., Re, 73. Quilter v. Mapleson, 265. Quinton v. Mayor of Bristol, 365. R. Radnorshire Bd. v. Evans, 408, XXX Raeburn v, Andrews, 430. Ramsden v. Lupton, 145. Randleson, Lz parte, 137. Randolph v. Milman, 347, Rashleigh, Ex purte, 268, 274. Rawley v. Rawley, 51, 70, 72. Read v. Croft, 467. — v. Edwards, 395. . — v. Ingham, 356, 407. — »v. Story, 189, 377. Readshaw v. Balders, 493. Ready v. Fitzgerald, 69. Rebeckah, The, 365. Receiver of Police D, v. Bell, 221. Redfern, Re, 304. Redgate ». Haynes, 336. Redpath v. Allen, 355. Reece v. Miller, 117. Reed v. Wiggins, 261. Reeves v. White, 155. — v. Yeates, 324. Regent U.S. Stores, Re, 476. Rein v. Lane, 350. Remington v, Stevens, 70. Restall v. London and 8. W. Ry. Co., 512. R. v. Abbot, 154, 222. Adamson, 288, 298, 299, 301. Adlard, 78. Aiken, 477. Aldborough, 448. Allday, 432. Allen, 163, 386, 472. All Saints, 361, Ampthill, 472. Anderson, 174. Annandale, 140. Arkwright, 459, Armagh, Archbishop of, 166. Armytage, 12, 473. Ashburton, 17. Astley, 139. Aston, 55, 423, 473. Athos, 57, 64. Atkins, 495, Audley, 148. Bacon, 342. Badger, 108, 116. Bailey, 518. Baines, 158, 189. Ball, 59. AR LAE ee DEAT aD Ics} Digitized by Microsoft® XXXL TABLE OF CASES. R. v. Balme, 494. — Banbury, 3. — Bank, 321. — Barham, 5. — Barlow, 287, 297, 300, 494. — Barnett, 8. — Barrett, 476. — Bateman, 54, 64. — Bawhergh, 256. — Beadle, 164, — Beany, 322. — Beecham, 344. — Bellamy, 8. — Belton, 360, 474. — Berkeley, 164. — Berks, 423. — Berry, 477. — Bertrand, 478. — Beverley Gas Co., 76. — Bewdley, 372. — Bigg, 65. — Birmingham, 73, 139. — Bishop, 122. — Biswell, 335. — Bjornsen, 175. — Blane, 183. — Bleasdale, 240. — Bloxham, 478. — Blues, 360. — Bond, 457. — Booth, 121. — Boteler, 299. — Boultbee, 163. — Boulton, 344. — Bowyer, 334. — Brackenridge, 233. — Bradford, 336. — Bradford Navigation, 438. — Bradlaugh, 235. — Bradshaw, 232. — Brice, 335. — Bridgewater, 98, 140. — Bridgnorth, 140, — Brighton, 73. — Bristol Dock Co., 506. — Brodribb, 59. — Brooks, 71. — Brown, 324, 399. — Buchanan, 499. — Buck, 496. — Bucks, 13, 197. R. v. Burdett, 125. — Burnaby, 116, 118. — Burslem Board, 159. — Butler, 98. — Cambridge, 154, 288, 298, 299 448, — Cambridge, Univ. of, 443. — Canterbury, Abp., 367, 446. — Carew, 87. — Carlile, 224. — Carnarvon, 457, 476. — Carpenter, 246. — Carr, 174. — Castro, 3. — Cator, 225. — Champneys, 212. — Chantrell, 12, 442. — Chapman, 149. — Charles, 79. — Charlesworth, 399, — Charretie, 346. — Cheltenham, 97, 154. — Cheshire Lines Comm. 444. — Chichester, 234, 292. — Child, 323. — Chorlton Union, 459. — Christchurch, 264, — — Clarke, 238, 240, 241. — Clear, 500. — Cleworth, 406. — Clifton, 361. — Coaks, 99. — Cohen, 120. — Coke, 323. — Collingwood, 85. — Coltman, 456. — Consistory Court, 351. — Cooke, 397. — Corfe Mullen, 463, 465. — Cornforth, 74, 334. — Cottle, 330. — Cotton, 158. — Cousins, 361. — Cox, 308, — Crawshaw, 499. — Cridland, 116, 118. — Croke, 232, 364. — Crowan, 273. — Crump, 425. — Cumberland, 163, 300. — Cumberworth, 364, Digitized by Microsoft® TABLE OF CASES. R. v.Cunningham, 397. — Cutbush, 363, 372. — Cuttrell, 125, — Damarell, 15. — Darlington School, 363, 446. — Davie, 367. — Davis, 15, 21, 225, 319, 494, 498. — Dean, 240, 242. — De Mattos, 175. — D’Oyley, 100: — Denbighshire, 463. — Denton, 510. — Depardo, 175. — Derby, 287. — Derbyshire, 8, 154. — Devon, 234. — Dickenson, 409. — Dixon, 121, 124. — Dorsetshire, 234. — Doubleday, 413. — Dove, 189. — Dowling, 282. — Downes, 201. — Dunne, 70. — Dursley, 246. — Dyott, 19. — Eastbourne, 182. — Eastern Counties Ry. Co., 232. — Eaton, 140. — Edmundson, 414. — Edwards, 70. — Ellis, 18. —- Elmsley, 322. — Ely, 440. — Essex, 234, 235, 369, 435. — Everdon, 284. — Everett, 199. — Eye, 296, 303. — Eyre, 420. — Farewell, 164. — Farrow, 337. — Faversham, 493. — Faweett, 288, 301. — Fell, 156. — Ferroll, 494. — Finnis, 232, 299. — Fitchie, 344, — Fletcher, 477. — Forbes, 122. — Fordham, 466. XXXill R.v, Forrest, 448. — Foulkes, 339. — Francis, 321. — Fretwell, 337. — Frost, 388. — Fylingdales, 97. — Gale, 337. — Ganz, 168. — Gardner, 76. — Garrett, 325. — Glover, 338. — Gibbons, 121. — Gillyard, 154. — Glamorganshire, 150. — Gompertz, 132. — Gould, 498. — Graves, 234. — Gravesend, 483. — Great Bolton, 394, 396. — Great Farringdon, 93. — Great Marlow, 440. — Great Salkeld, 139. — Green, 118, 493. — Greene, 381, 434. — Greenland, 207. — Gregory, 499. — Grimwade, 336. — Gutch, 125. — Gwenop, 53, 64. — Hadfield, 336. — Haigh, 495. — Haines, 335. — Hale, 116. — Hall, 67. — Halifax, 139. | — Hammond, 80. — Hamstall Redware, 448. — Hanson, 201. — Hants, JJ. of, 72, 2385. — Harden, 192. — Hardy, 336. — Harrald, 100. — Harris, 322, 343, 404, 495. — Harrowgate, 162. — Harvey, 115, 320. — Hastings, 288, 295. — Haughton, 381. — Havering Atte Bower, 288. — Hawkesworth, 132. — Hazelton, 339. — Hellier, 211. Digitized by Microsoft® XXXIV R. v. Helton, 73. — Hennah, 326. — Herford, 367. — Hermann, 334. - — Hertford College, 34. — Heywood, 407. — Hibbert, 118. — Hicklin, 126. — Hicks, 502. — Higgins, 15. — Higginson, 232. — Hillman, 337. — Hipswell, 257, 483. — Hodges, 408. — Hodnett, 3, 5, 73, 319, 334. — Hogg, 368, 373. — Holbrook, 125. — Horton, 121. — Hoseason, 226. — How, 99, 100. — Howell, 342. — Hughes, 140, 445, 479. — Hull, 432. — Hull Dock Co., 356. — Hull and Selby Ry. Co., 497. — Hulme, 280, 393. — Huntingdonshire, 8, 87. — Huntley, 210. — Hyde, 154. — Idle, 210. — Ingall, 452, 459, 460. — Ingham, 391. — Ingram, 460. — Ipstones, 71. _— ae Union, 260. — James, 164. — Jay, 162. — Jeans, 322. — Jenkins, 443. — Jepson, 336. — Johnson, 217, 477. — Jones, 319, 336, 399. — Jordan, 335. — Kensington, 149. — Kent, 440. — Kerrison, 440. — Keyn, 175, 176, 378. — King, 240, 338, — Kingston, 232. — Kipps, 335. — Knapp, 197. TABLE OF CASES. R. v. Lambe, 244. — Lancashire, 288, 300, 457. — Land Tax Com., 242. — Langford, 116, 343. — Lawrence, 335. — Leader, 327. — Leeds Ry. Co., 268. — Leicester, 462. — Leicestershire, 471. — Lesley, 174. — Leverson, 35, 372. — Lewes, 515. — Lewis, 175, 386. — Lichfield, 400. — Lightfoot, 170. — Lindsay, 440. — Linford, 232. — Little Coggleshall, 141. — Llangian, 191, 395. — Lloyd, 336. — Lofthouse, 460. —- Loom, 397. — London, 510. — Long, 476. —- Lopes, 174. — Loveless, 59. — Loxdale, 40, 361. — Lntffe, 84. — Lundie, 493. — Mabe, 6, 11. — McCann, 163. — McKenzie, 511, 518. — Maidenhead, 246. — Mainwearing, 8. — Mallinson, 403. — Manchester, 64, 70, 129, 162. — Manchester Waterworks, 410. — Manktelow, 335. — Mann, 165. — Marks, 59. — Margrave, 9. — Marriot, 496. — Marsh, 125. — Martin, 239, 324, — Mashiter, 77, 367. — Masterton, 83. — Mattersey, 139. — Matthews, 240. — Maude, 334. — Maulden, 246, — Mawgan, 510, Digitized by Microsoft® TABLE OF CASES. R.v. Mayor of London, 218. — Medway Union, 212. — Mellingham, 9. — Merioneth, 150, 514. — Metrop. Board, 110. — Metrop. Com. Sewers, 159. — Metrop. Dist. Ry., 22. — Middlesex, 87, 196, 234, 235. — Midland Ry. Co., 397, 410, 411. — Mildenhall, 79. — Milledge, 98. — Mill, 248, 262. — Mills, 3, 448. — Milverton, 52. — Moah, 45. — Moore, 115. — Monck, 242. — Morgan, 514. — Morris, 245, 511. — Morrison, 344. — Mortlake, 285. — Moseley, 153. — Mount, 173. — Murrow, 404. — Mursley, 141. — Mycock, 121. — Myott, 140. — Neath, 411. — Nevill, 410. — Newman, 325. — Nicholson, 78. — Norfolk, 288, 296, 360. — N. Collingham, 396. — N. Curry, 77, 78. — Northleach, 195, 198. — Norwich, 463, 470. — O’Connor, 408. — Oldham, 51, 382, 434. — Olifier, 121. — Overton, 132. — Owen, 68, 98, 322. — Oxford, V. C. of, 48, 79. — Oxford, 292, 294. — Oxfordshire, 457. — Oxley, 493. — Papworth, 71. — Parker, 339. — Patteson, 467. — Paty, 419. — Pawlett, 360. XXXKV R. v. Payne, 414. — Pease, 3, 435. — Pembridge, 31, 71, 352. — Percy, 55. — Perry, 344. — Pickford, 11. — Pierce, 60. — Pilkington, 85. — Pinder, 454. — Pinney, 212. — Plowright, 153. — Ponsonby, 163. — Pooley, 343. — Poor Law Commissioners, 4, 213, 385, 388. — Porter, 114. — Portsea, 264. — Powell, 343. — Poynder, 81. — Pratt, 338, 378, 395. — Preston, 71. — Price, 342, 422, 494. — Prince, 121, 122, 125. — Pugh, 213, 217. — Purdey, 72, 235. — Read, 246, 324, — Reason, 339. — Richards, 495. — Robins, 121, 335. — Robinson, 224, 325, 493, 494. — Rochester, 460, 463. — Rose, 115, 363. — Rundle, 114. — Russell, 189, 335, 506. — Saddler’s Co., 77. — Saffron Walden, 426. — Sainsbury, 97, 494. — &t. Albans, 154. — St. George’s Hospital, 137. — S&t. George’s, Hanover Square, 205. — St. George’s Union, 48. — St. Giles, 73. — St. Gregory, 253. — St. James, Westminster, 159, 217. — &. Kilvington, 140. — St. Martin’s, 162. — St. Mary, 100, 264. — St. Matthew, 99. — St, Nicholas, 253. c 2 Digitized by Microsoft® XXXV1 R.v. St. Paul's, 10. — St. Peter’s, 9. — St. Sepulchre, 139, 260. — Salisbury, 215. — Salop, 422. — Saltren, 373. — Sanchee, 205. — Sankey, 434, — Sattler, 174. — Saunders, 407. — Scaife, 368. — Schofield, 141. — Scott, 367, 429. — Seberg, 174. — Sedgley, 397. — Senior, 197. — Serva, 176. — Sevenoaks, 234. — Shadbolt, 322. — Shee, 163. — Shepherd, 162. — Shiles, 248, 286. — Shrewsbury, 8, 413. — Silvester, 406. — Simpson, 343. — Skeen, 242, 246. — Slator, 18, 391. — Sleep, 120. — Smith, 16, 93, 94, 235, 328, 375, 446, 477, 513, 514. — Sneyd, 463. — Somersetshire, 154. — Southampton, 205. — South Wales Ry. Co., 154, 443. — South Weald, 296, 389. — Sparrow, 462, 463. — Speed, 118. — Spratley, 415. — Spurrell, 81. — Staffordshire, 4,9, 10, 13, 254, 360. — Stainforth, 319. — Stephens, 89, 121, 125, — Stepney, 515. — Stevens, 322, 404. — Stewart, 162, 163. — Stimpson, 117. — Stock, 514. — Stoke Bliss, 493. — Stoke Damerell, 5, 9, 256. TABLE OF CASES. R.». Stone, 323, 477. — Storr, 495. — Stotfold, 448. — Strachan, 281. — Stratford, 79. — Stretfield, 246. — Strugnell, 403. — Surrey, 360. — Sussex, 13, 234. — Swann, 511. — Sykes, 149, 441. — Sylvester, 150. — Tart, 88. — Tatlock, 345. — Tewkesbury, 98. — Thallman, 338. — Thomas, 321, 342, — Thornhill, 478. — Thurston, 518. — Tillingham, 139. — Timmins, 335. — Tinkler, 117. — Tithe Commissioners, 287, 289. — Todmorden, 461. — Toke, 319. — Tolley, 8. — Tone, 390. — Toole, 234. — Totnes, 448. — Totnes Union, 443. — Townrow, 339. — Trafford, 234. — Trethowan, 111. — Trew, 120. — Tucker, 399. — Tuchin, 165. — Turvey, 314. — Twyford, 433. — Ushworth, 48. — Vandeleer, 432. — Varlo, 367, — Vaughan, 110. — Verelst, 464. — Vine, 266. — Wagstaff, 336. — Walker, 495. — Wallis, 32, 367. — Walsall, 150. — Walter, 121, 125. — Waltham, 322. — Warwick, 85, 351. Digitized by Microsoft® TABLE OF CASES. R. v. Warwickshire, 281. — Washbrook, 459. — Waterhouse, 254. — Watson, 4. — Watts, 234, 344. — Wavell, 148, 325. — Welland, 322. — Wells, 515. — Weobley, 140. — Westbeer, 343. — West Riding, 22, 234, 360, 422, 510. — Weymouth, 98. — Whiteley, 197. — Widdop, 477. — Wigan, 246. — Wiggs, 224. — Wilcock, 51, 305. — Wilkes, 147. — Williams, 50, 307, 323, 336. — Wilmett, 120. — Wimbledon, 99. — Windsor, 384. — Winwick, 448. — Withyam, 149. — Wood, 154, 322, 331, 363. — Woodland, 139. — Woodrow, 120. — Woolcock, 323. — Worcestershire, 5, 159, 191. — Worksop Board, 458. — Wright, 51, 161, 167, 496. — Wycombe, 364. — Wydmondham, 84. — Wynn, 165. — York, 70. — York, Archbishop of, 164. — York & Midland Ry. Co., 365. — Yorkshire, 140, 234, 477. — Youle, 223, 226. — Younger, 398. — Zulueta, 31, 172. Reuss v. Bos., 97, 183. Reuss Kostritz, Re, 185. Reya, Ex parte, 143. Rhodes v. Airedale, 110. — v. Smethurst, 248. Richardson v. Hunt, 70. Richards v. McBride, 9. — v. James, 255. Richie v. Smith, 486. XXXVI Richens v. Wiggins, 203. Richmond v. N. Lond. Ry.Co., 365. Richter v. Hughes, 361. Rickards v. Dyke, 191. Rickett v, Metrop. Ry. Co., 110, 394. Ricketts v. Bodenham, 191. Rider v. Kidder, 76. — v. Wood, 116, 123. Ridgway v. Stafford, 201. — v. Warton, 354. Ridler v. Punter, 253. Ridsdale v. Clifton, 33, 68, 371. Riley v. Read, 79. Ringer v. Cann, 409. Ripley v. Waterworth, 313. Rishton ». Whatmore, 358, 354. River Wear Co. v. ‘Adamson, 25. Rivers v. Adams, 429. Rix v. Borton, 189, 207. Roberts v. Davy, 252. — v. Egerton, 38, 394. — v, Humphries, 119. — v. Orchard, 278. — v. Phillips, 355. — v. Williams, 80. Robertson, Ez parte, 478. Robinson v. Briggs, 81. — v. Collingwood, 127. — Emerson, 200, 225. Rochdale Canal ». King, 153, 155. Rochfort v. Atherley, 234. Roddam v Morley, 348. Roderick v. Aston Loeal Board, 437. Rodrigues v. Melluish, 7. Roles v. Rosewell, 224. Rolle v. Whyte, 42, 388. Rolls v. St. George, Southwark, 109, 377. Romney Marsh v. Trinity House, 507. Rooke’s Case, 147. Rose v. Groves, 506. — v. Hineley, 170. — v. Miles, 507. Ross v. Price, 499. Rosseter v. Cahlman, 170, 171. Rossiter v. Miller, 355. Rothes v. Kirkcaldy Commrs., 242. Round »v. Bell, 203. Routledge v. Low, 181, 182. Digitized by Microsoft® XXXVIil Rowning v. Goodchild, 501. Hep British Bank v. Turquand, 470. Royal Mint Co. v, Braham, 398. Ruck v. Williams, 110. Ruckmaboye v. Lullooboy, 276. Rumsey v. N. E. Ry. Co., 475. Russell, Ex parte, 147, 164. — v. Men of Devon, 508. — ». Prat, 307. Rustomjee v. Reg., 164, Ruther v. Harris, 337. Ryall v. Bowles, 77. — v. Rolle, 64. S. SADLER v. Leigh, 424. Saffron Hill, Ex parte, 82. Sale v. Lambert, 355. Salisbury’s (Bishop of), Case, 352. Salkeld v. Johnson, 50, 62, 64. Salomons v. Miller, 382. Salters’s Co. v. Jay, 57, 218, Saltmarshe v. Hewett, 144, Saltoun v. Adv.-Genl., 74. Sandiman v. Breach, 406. Santos v. Illidge, 31, 172, 176. Sandys, Ea parte, 446. San Theodoro v. San Theodoro, 169. Saunders v. 8. E. Ry. Co., 82, 362. Savings Institution, v. Makin, 188. Saxonia, The, 184. Scadding v. Eyles, 272. Scales v. Pickering, 364, Scaltock v. Harston, 439. Scarborough (Mayor of) v. Rural Authority of Scarborough, 384. School Board v. Islington, 82. Scofield, Re, 178. Scotch Widows’ Fund v. Craig, 496, Scott v. Avery, 152. — v. Freeman, 215. — »v, Legg, 84. — v. Paquet, 320. — v. Royal Wax Co., 398. — v. Uxbridge, 299. Scrimshire v. Scrimshire, 171. Selkrig v. Davies, 177. =f TABLE OF CASES. Selmes v. Judge, 279. Senior v. Metrop. Board of Works, 110. Sewell v. Taylor, 399. Shackell v. Rosier, 492. Shaftesbury v. Russell, 153. Shaftoe’s Charity, Re, 234. Shardlow v. Cotterell, 353. Sharp, Ex parte, 17. — v. Thomas, 137. Shaw v. Morley, 416. — v. Thompson, 90, 314. Shears v. Jacobs, 430. Sheil, Ex parte, 347, 348. Sheils ». Rait, 402. Shelley’s Case, 424. Shepherd v. Bradford, 163. — ». Hall, 142. — v. Hills, 497, 498, — ». Hodsman, 215. Shepherdess, The, 115. Sheppard v. Gosnold, 367. Sherborn v, Wells, 389. Sherwood v. Ray, 71. Shiels v. G. N. Ry. Co., 80. Shillito », Thompson, 363, 414. Shipman v. Henbest, 154, 157, 514. Shipperdson’s Trusts, 361. Short v. McCarthy, 7. Shortrede v. Cheek, 28, 353, Shrewsbury v. Beasley, 65. — v. Scott, 50, 198, 380. Shrimpton v. Sidmouth, 298. Shuttleworth, Re, 454. — v. Le Fleming, 36, 402, Sill v. Worswick, 177. ~ Sillence, Hx parte, 423. Simmons v. Crook, 73. Simpkin v. Birmingham, 11. Simpkins, Zz parte, 425. Simpson v. Blues, 23, 160. — v. Ready, 510. — v. 8. Staffordshire Waterworks, 364. — v. Unwin, 276. Sims v, Doughty, 186. — v. Thomas, 77, 94, 203. Simon v. Moss, 217. Simmons ». Crook, 73. Sinnott ». Whitechapel, 233. Skinner v. Usher, 389, 399. .. Digitized by Microsoft® TABLE OF CASES. Smale v. Burr, 145. Smith ». Adams, 37, 92. — v. Barnham, 408. — v, Birmingham, 162. — v. Brown, 41, 160, 183, 385. — v. Ex parte, 149, 177, 441. — v. Fox, 8. —v. G. W. Ry. Co., 242. — v. Hudson, 354. — v. Huggett, 455. — v. Jones, 460. — v. Keats, 163. — v. Kirby, 356. — v. Lindo, 43, 329, 367, 489. — v. Mawhood, 490. —v. R, 444, — Re, 164. — v. Sparrow, 484. — v. Tilley, 369. — v. Walton, 346. — v. Whitmore, 153. Smith’s Case, 468. Smithett v. Blythe, 381. Smyth v. North, 131. Sneed v. Com., 4. Soc. Prop. Gospel v. Wheeler, 258. Solarte v. Melville, 134. Southam, fe, 422. Southampton Dock Co. v, Richards, 467. South of Ireland Colliery ». Waddle, 430. 8. E. Ry. Co. v. B., 360. South Yorkshire Ry. Co. v. G. N. By. Co., 431, 456. Sowerby v. Smith, 378. Spackman’s Case, 411. Spicer v. Bacon, 454. — v. Barnard, 108. Spilsbury v. Micklethwaite, 438. Spyve v. Topham, 304. St. Cross v. Howard, 75. St. Juan Nepomuceno, 176. St. Leonard’s v. Franklin, 76, 398. St. Losky v. Green, 375. St. Mary v. Radcliffe, 79. St. Pancras v. Batterbury, 157, 498. St. Sepulchre, Hx parte, 17. Stable v. Dixon, 159. é Stacey v. Lintell, 85. XXX1X Stainton v. Woolrych, 436. Stallard v. Marks, 136.° Stamp, Hx parte, 115. Stanley v. Dodd, 124, 3-41. —v. Western Insurance Co., 74. — v. Wharton, 499. Stapleton v. Haymen, 455. Stead v. Carey, 266. Steel v. Henley, 489. Steele v. Brannan, 126. — v. Midland R. Co., 35. Stemson v. Heath, 497. Stephens v. Robinson, 488. Stephenson v. Higginson, 325. Stettin, The, 396. Stevens, Hx parte, 145. — v. Evans, 497. — v. Gourley, 450, 483. — v. Jeacocke, 240, 502. — v. Watson, 224, Stevenson v. Oliver, 510. Steward v. Greaves, 196. Stewart v. Jones, 220. — v. Lawton, 367. Stocker v, Warner, 262. Stockton and Darlington R. Co. v. Barrett, 349, 364. Stokes v. Grissell, 426. Stoke’s Trusts, 361. Stone v. Dean, 471. — v..Yeovil, 283. Storie v. Winchester, 257. Stradling v. Morgan, 27, 75. Strother v. Hutchinson, 309. Stuart v. Laird, 372. Sturgis v. Darrell, 315, 375. Suche & Co., Re, 263. Sully v. Atty.-Genl., 179. Sunderland v. Sussex, 260. Supervisors v. U. 8., 296, 299. Surtees v. Ellison, 510. Sussex Peerage, 3, 169, 172, 346. Sutton v. Clarke, 436. Sutton’s Case, 70. Sweeney v. Spooner, 324. Swift v. Jewsbury, 89. — v. Swift, 172. Syred v. Carruthers, 472. Digitized by Microsoft® xl TABLE OF CASES. T. Talbot v. Shrewsbury, 203. Tarrant v, Baker, 278. Tassel v. Ovenden, 237. Tate v. Wellings, 135. © Tattle v. Grimwood, 509. Tawney’s Case, 246, Taylor, Re, 94. Taylor v. Caldwell, 471. — v. Crowland Gas Co., 80, 489. — v. Goodwin, 330. — v, Greenhalgh, 508. — v. Humphreys, 82. — v. Metham Board, 190. — v. Newman, 51, 107, — v. Oldham, 49, 202. — v. Oram, 399. — v. Phillips, 477. — v. St. Mary Abbott, 70. — v. Taylor, 359. Teague’s Case, 385. Teather, Ha parte, 446. Tempest, v. Kilner, 400, ‘Tennant v. Bell, 423. — v. Rawlings, 473. Ternan, Re, 84. Terrell, Re, 147, 148. Tewkesbury v. Twining, 139. Thacker v. Hardy, 135. Thames, Conservators of, v. Hall, 212. — Haven Co. v. Rose, 130. Theberge v. Landry, 166. Thistleton v. Frewer, 265. Thoday, Ex parte, 234. Thomas v. Brown, 355. “— v. Desanges, 424. —»v. R. 165. — v. Stephenson, 332. Thompson ». Farrer, 37. — v. Harvey, 468. — »v. Hill, 441. Thomson v. Adv.-Gen., 179. Thorburn v. Barnes, 443. Thorne, Ex parte, 375. Thorpe v. Adams, 212, — v. Brown, 80. Tidy v. Mollett, 392. Timms »v. Williams, 156. Tipper v. Nichols, 438, Tisdell v. Coombe, 407. Tivan, Re, 84. Tobacco-pipe Makers v. Wood- _ roffe, 40, 205. Tobin v. Reg., 124, 165. Tomkins v, Ashby, 349. Tomlinson v. Bullock, 424. Tompson v. Browne, 143. Toms v. Wilson, 423. Toomer v. London Ch. & D. RB. Co. 359. Torquay v. Bridle, 362. Tottenham Board v. Rowell, 236, Toutill v. Douglas, 513. Towler v. Chatterton, 267. Towns v. Wentworth, 69. Townsend v. Deacon, 276. Tredwen v. Holman, 152. Trueman v. Lambert, 57. Tuberville v. Stamp, 125. Turner, Re, 114. Turner v. Browne, 479. — v. Evans, 29. ~ v. Morgan, 284, 326. — v. Reynell, 482. Turtle v. Hartwell, 84. Two Ellens, The, 429 : Two Hundred Chests of Tea, 74. Twycross v. Grant, 84, 131, 308. Tyerman v. Smith, 476. Tyson v. Thomas, 488, 515. U. Udney v. East India Co., 179. Underhill v. Ellicombe, 497, — v. Longridge, 305, 331. Ungley v. Ungley, 312. Union Bank v. Lenanton, 102. United Land Company v. G. E. R. Co., 363. United States v. Coombes, 320, 405. —v. Donnally, 131. — v. Fisher, 51, 95, 174. — v. Gooding, 320. — v. Hartwell, 320, 333. — vv. Helen, The, 511. — v. Howard, 175. — v. Kessler, 175. — v, Kirby, 115, Digitized by Microsoft® TABLE OF CASES. United States v. Klintock, 175. —v. Mc Lain, 322. — v. Morris, 338. : — v, Palmer, 51, 175, 386. —v. Thirty-six barrels of wine, 351. — v, Wiltberger, 3, 318, 320. — v. Winn, 76. — v. Wood, 228. Uppom v. Sumner, 165. V. Vale of Neath Colliery v. Furness, 353. Vallejo v. Wheeler, 126. Van Sandau, Ea parte, 458. Vane v. Vane, 104. Vansittart v. Taylor, 257, 273. Vaughan v. Taff Valley R. Co., 436. - Vaux v. Vollans, 457. Verdin v. Wray, 234. Veitch v. Exeter, 143. Venour, Re, 52, 365. ; Vernon, The, 184. Vine v. Leeds, 195, 257, 259. Violett v. Sympson, 8. Virginia & Maryland 8. Nay. Co., 423. W. Waddington v. London Union, 246. Wadham v. P. M. General, 481. Wadley v. Baylis, 374. Wadmore v. Dear, 438. Wain v. Warlters, 353. Wainwright, Re, 17, 304, 333. Waite ». Bingley, 177. — v. Jones, 492. Walker v. Clements, 72. — v. Goe, 507. — v. Horner, 336. -— v. Richardson, 64, 398. Wallace v. Att.-Gen,, 179. — v. Blackwell, 189, 425. — v. King, 308. Wallgrave v. Tebbs, 142. xli Walsh v. Southworth, 87. Walton, Hx parte, 25, 131. — Ex parte, 314, — v. Gavin, 465. Wanklyn v. Woollett, 17. Wanstead Bd. v. Hill, 409. Warburton v. Loveland, 3. Ward v. Beck, 374, 455. — v. Gray, 69. — v. Hobbs, 504, — v. Robins, 11. — v. Scott, 101. — v. Sec. of State for War, 91. Warden v. Dean of St. Paul’s, 399. — v. Tye, 245. Warner v. Armstrong, 134, 486. — v. Murdoch, 270. Warne v. Beresford, 262, 271, 511. —v. Varley, 278. Warrington, Lx parte, 204, — v. Furbor, 350. Warwick v. White, 158, Washer v. Elliot, 97. Waterfall v. Penistone, 111. Waterford Peerage, The, 373. | Waterhouse v. Keen, 285. Waterton v. Baker, 473. Watkins v. Major, 123. | Watson v. Martin, 408. Watton v. Watton, 273. Watts v. Ainsworth, 353. Waugh v. Middleton, 25, 261. Waymell v. Read, 487. Wear Nay. Co. v. Adamson, 28, 96, 113, 365. Weaver's Co. v. Forrest, 398. Webb ». Bird, 402. — v. Fairmanner, 422. — v. Knight, 74, — v. Manchester R. Co. 364. Webster v. Webster, 312. Weeks v. Wray, 422, Welch v. Nash, 248, Welford v. Beazley, 353. Wells v, London and Tilbury R. Co. 347. — v. Porter, 329, Werburgh v. Hutchinson, 11. Wescomb’s Case, 79. West v. Francis, 194, 391. Westbrook v. Blythe, 216. Digitized by Microsoft® xh Westbury v. Coston, 139. Westerton v. Liddell, 450. Westminster v. Gerrard, 334. Westmoreland, The, 97. Westover v. Perkins, 163, 380. Wethered v. Calcutt, 56, 83. Wetherell v. Jones, 490. Wetherfield v. Nelson, 358. Weymouth v. Nugent, 380. Whidborne v. Eccles. Com., 101. Whistler v. Forster, 238. White, Ex parte, 259. — v. Boot, 515. — v. Coquetdale, 11. — v. Feast, 192, 449. — v. Fellowes, 110. — v. Hindley Loc. Bd., 508. — v. Steel, 100. — v. Wright, 135. Whitchurch v, Fulham Board, 148. Whitechurch v. E. London R. Co. 22. Whitehead v. Smithers, 194. Whitehorn v. Thomas, 79. Whiteley v. Chappell, 324. — v. Heaton, 197. Whitfield v. Langdale, 29. Whithouse v. Fellowes, 425, 436. Wigan v. Fowler, 84. Wilberforce vy. Hearfield, 102. Wild Ranger, The, 184. Wiley v. Crawford, 256, 396, 485. Wilkes v. Hungerford Market Co., 506. Wilkinson v. Evans, 354. Willett v. Boote, 123. Williamson v. Maggs, 18. Williams, Ex parte, 70, 232. — ». Byrnes, 353. — v. Carey, 308. — »v, Ellis, 48, 401. — v. Evans, 17, 312, 331, 342. — v, Golding, 407. — v. Great W. R. Co., 363. — v. Harding, 261, 268. — v, Jones, 78. : — v. Jordan, 353. — v. Lake, 353, 354. — v, Lear, 374. — vv. Lords of Admiralty, 429. — v. Mason, 89. TABLE OF CASES. Williams v. Pritchard, 213. — v, Roberts, 248. — v, Rose, 243. — v. Smith, 268. : — v. Swansea Canal Co. 457. — v. Swansea Navig., 464. — v. Wheeler, 180. Willion v. Berkeley, 161, 167. Willis v. Brown, 313. — v. Gipps, 61. — v. Thorpe, 408. Willock v. Noble, 101. Wilmot »v. Rose, 5, 37. Wilson, Re, 236. — v. Halifax, 86, 124, 278, 399, —v. Kunubley, 63, 310. — v. Marryat, 76. — v. Nightingale, 36. — v. Rankin, 486. — »v. Robertson, 143. — v. Rustall, 148. — v. West Hartlepool Co., 312, 456. — v. Wilson, 304. Winch v. Conservators of Thames, 439. Wingfield v. Wingfield, 387. Winterbottom v. Wright, 248. Wiseman v. Cotton, 404. Withipole’s Case, 39. Withnall v. Gartham, 373. Wolverhampton Waterworks v. Hawkesford, 467. Wolverton Estates, Re, 30. Wood, Re, 392. — v. Dixie, 253. — v. Heath, 234. — v. Priestner, 28, 30. — v. Riley, 512. — v. Roweliffe, 105. Woodgate v. Godfrey, 136. Woodhouse v. Woods, 457, 471, 472. Woodland ». Fuller, 424. Woodward v. Lond. & N. W. R. Co., 401. — v. Sarsons, 463, — v. Watts, 14. Woolley v. Kay, 341. Worcester v. Droitwich, 247, Worms v. De Valdor, 169. Wray v. Ellis, 220. Wright, Re, 74, 178. Digitized by Microsoft® TABLE OF Wright v. Frant, 286. — v. Greenroyd, 265. — v. Hale, 269, 270, 272. — v. Legge, 431. —v. Lan — v. Maunder, 467. — v. Mills, 424. — v. Monarch Invesmt. Soc., 155. — v, Nuttall, 57. — v. Pearson, 419. — v. Williams, 11, 274. Wrightup v. Greenacre, 211, Wroughton v. Turtle, 349. Wyatt v. Barwell, 313. —v. Metrop. B. of Works, 316, 431. Wyn »v. Lyn, 186, 214. Won Hall Co., Re, 468. Wynne, v. Middleton, 346. on Omnibus Co., 245. CASES. xiii Y. Yarmouth v». Simmons, 187, 347. Yearwood’s Trusts, Re, 198. York v. Middlesborough, 58. York and N. Midland R. Co. v. R., 6, 294. Yorkshire Railway Wagon Co. »v. Maclure, 144. Youle v. Mappin, 123, 226. Young v. Billiter, 253, 254, — v. Davis, 508. — v. Edwards, 362. — v. Gratridge, 412. — ». Higgon, 421, 422. — v. Hughes, 257, 260. — v. Leamington, 470. Z. Zollverein, The, 170, 173, 179, 185. Zouche v. Empsey, 422. Digitized by Microsoft® TABLE OF STATUTES REFERRED TO IN THE CASES CITED. —_+—. PAGE PAGE Magna Charta 42,93 | 21 Hen. 8, c. 13, clergy . 114, 496 20 Hen. 3, Merton . . 167, 428 | 22 Hen. 8, c. 5, bridges . . 77 52 Hen. 3, Marlbridge . 167, 417 | 27 Hen. 8, c. 10, uses 41, 398 3 Ed. 1, Westmr. 1 . 309, 368 | 28 Hen. 8,¢c.1, wills . . 101 6 Ed. 1, Gloucester - 808, 309 c. 11, clergy » 208 13 Ed. 1 , Stat. Westmr. 2, c. 1, de donis . 167, 307 c. 18, recovery of debt, elegit : - 99 c. 47, salmon fisheries 418 circumspecte agatis . 310 21 Ed. 1, de malefactoribus in arcis : 347 4 Kd. 3, st. 1, c. 6, ‘amendments 165 c. 7, trespass . 807 25 Ed. 3, st. 4,¢.4, weirs . 42 st. 6, provisors . 67 c, 2, treason 329 42 Ed. 3, « 1, wool staple, Calais. . 316 1-Rich. 2, c. 12, prisoners . 809 6 Rich. 2, ce. 2, venue . 815 c. 5, justices . . 462 15 Rich. 2, ¢. 3, admiralty . 369 5 Hen. 4, c. 10, jail . 809 13 Hen. 4, c. 7, justices . 460 2 Hen. 5, c. 3, jurors . 307 c. 4, Justices . 462 3 Ed. 4, c. 4, imports . 509 3 Hen. %y, C 4, fraudulent con- veyances . » 253 6 Hen. 8, c. 6, procedendo . 368 32 Hen. 8, discontinuances . 167 33 & 34 Hen. 8, c. 14, wills . 101 38 Hen, 8, c. 9, "land . 208 1 Ed. 6, c. 12, horse stealing . 322 5&6 Ed, 6, c. 1, vestments . 370 C 16, sale of offices, 164 c. 25, public house, 329, 496 1&2Ph. & M. c. 12, distress 240 4&5 Ph& Me. 8, abduction 57, 73, 334 1 Eliz., c. 1, ex. off. oaths . 194 c. 2, recusants . 223, 370 5 Eliz, ¢. 4 apprentice. —.. 258 5 Eliz, G °, writ . , . 458 13 Eliz, c. 5, creditors 76, 93, 253, 289 c. 10, Eccles. leases 57, 167, 200, 211, 213, 252, 417 c. 20, charging bene- fices ‘ . 144 14 Eliz., c. 11, Eccles. leases . 214 18 Eliz., c. 11, Eccles. leases . 214. 23 Eliz., c. 1, recusants . « 223 28 Eliz., c. 2, witcheraft. . 516 30 Eliz., c. 12, accessories . 328 Digitized by Microsoft® TABLE OF STATUTES. PAGE 31 Eliz, c. 5, pendl action . 369 c. c. 6, simony . 167 39 Eliz., ¢. 5, hospitals . . 100 43 Eliz, C. 2 poor 48, 148, 162, 191, 360, 462, 496 c. 4, charit. uses . 34 c. 6, costs . 211, 511 c. 43, poor . 397, 494 1 Jac. 1, ¢. 11, bigamy . 170 c. 15, bankrupt 284, 289 3 Jac. 1, c. 5, recusants . . 223 c. 10, conveyance of felons j . 60 c. 12, fish . 403 7 Jac. 1, ¢. 12, shop books . 376 21 Jac. 1, c. 16, limitations . 19, 211, 275, 311, 315 c. 19, bankrupt . 60 16 Car. 1, ¢. 10, petition of right . : 194 12 Car. 2, ¢. iz, clergy . : 102 13 & 14 Car. 2, ¢. 4, uniformity 32, 370 c. 12, poor 191, 224, 287, 494 22 & 23 Car. 2, c. 1, Coventry Act . 322 c. 9, costs . 211 c. 25, game 403, 418 25 Car. 2, c. 2, tests ‘ . 14 29 Car. 2, ¢. 3, Stat. Frauds . 47, 180, 352, 355, 399 c.7, Sunday 254, 406 31 Car. 2, c. 2, ’ Habeas Corpus 103 1W.& M., c. 18, Toleration Act. . 104, 238 2W. & M., c. 5, landlord and tenant 36, 201, 308 c. 8, swine . . 224 3W.&M., c. 14, debt . . 62 3&4W. & M., c. 11, poor 224 4&5 W.& M.,c. 20, Jude: ments. : 19 7&8 W. 3,¢. 25, conveyances 107, 252 c. 34, title . . 204 9 & 10 W.3,¢. 14, naval stores 119 c. 32, blasphemy 223, 517 xlv PAGE 10 & 11 W. 3, ¢.17, lottery . 4¢8 c. 23, larceny . 511 11 & 12 W. 3,¢.7, piracy . 114 4 Anne, c. 16, pleading. 164, 476 4&5 Anne, c. 16, limitations 20 5&6 Anne, c. 14, game 125, 338 6 Anne, c. 16, brokers. 43, 489 7 Anne, c. 12, ambassadors . 132 c. 20, registration 216, 313 8 Anne, c. 7, customs . 829 c, 14, landlord and tenant . . 369 c. 19, copyright 182, 501 9 Anne, c. 10, post-office . 501 c. 14, gaming . 280, 387 c.20,mandamus . 32 12 Anne, st. 2,¢. 16, usury 134, 204 1 Geo. 1, st. 2, Riot Act 13, 323, 382 3 Geo. 1,¢. 13, pilot. . 12 4 Geo. 1, c. 12, ships . 403 5 Geo. 1, . 8, poor relief . 44 C. 27, artificers « 225 6 Geo. 1, ¢. 18, Bubble Act . 43 7 Geo. 1, c 21, bottomry bonds. 5 : . 198 9 Geo. 1, ¢. 7, appeal é . 18 c. 29, Black Act . .225 10 Geo. 1, c. 4, Papists refusing to take oaths . 382 5 Geo. 2,¢. 3, bankruptcy . 42 7 Geo. 2, c. 8, stock-jobbing . 329 8 Geo. 2, c, 18, copyright 94, 330, 453 9 Geo. 2, c. 36, mortmain 137, 141, 219, 258, 398 10 Geo. 2, c. 31, apprentice . 483 11 Geo, 2, c. 19, distress 408, 499 13 Geo. 2, c. 18, certiorari . 163 c, 28, impressment 194 14 Geo. 2, ¢. 6, cattle steal- ig. sw ee 17 Geo. 2, c. 3, overseers, poor- rates . . 19 c. 38, appeal . 93, 191, 210 18 Geo. 2, c. 20, justices 14, 464 19 Geo. 2, ¢. 22, harbours . 227 Digitized by Microsoft® xlvi PAGE 20 Geo. 2, c. 6, plague . 495 c. 19, apprentice . 406 23 Geo. 2, c. 13, artificers . 225 24 Geo, 2, c. 44, ee 189, 207 25 Geo. 2, c. 6, . 56 26 Geo. 2, c. é, quarantine . 494 c. 14, fees at ses- sions . 463 29 Geo. 2, c. 29, quarter ses- sions . . 467 c. 33, marriage . 73 2 Geo. 3, c. 19, game . 276 5 Geo. 3 c. 14, fish preserva- tion . . . 338 6 Geo. 3, c. 19, gloves . . 330 c. 25, master and servant : . 226 12 Geo. 3, c 11, royal mar- rlages . . 171 c. 24, destroying stores . 517 c. 61, gunpowder . 403 14 Geo. 3, c. 78, "fire insurance 59 16 Geo. 3 c. 30, deer « 225 17 Geo. 3, c. 26, annuities . 73, 404 c. 88, rates. . 55 c. 42, bricks . 487 c. 50, auction duty 250 c. 56, larceny . 414 C. 57, copyright 193 21 Geo. 3, ¢. 70, East India Co. 243 22 Geo. 3, c. 75, colonial offices 60 c. 83, telief of poor 93 23 Geo. ‘ c. 58, stamp . . 350 25 Geo. 3, c. Bl, post-horse duties . 389 26 Geo, 3, ¢. 41, impressment 194 c. 107, poor . . 52 27 Geo. 3, c. 44, Heel, Courts. 104 28 Geo. 3, c. 48, apprentice . 483 33 Geo. 3, c. 13, date of Acts. 52, 519 c. 52, improving Tiverton . 169 c. 54, friendly so- cieties . 210 35 Geo. 3, ¢. 101, poor 191, 210, 284 TABLE OF STATUTES. PAGE 36 Geo. 3, c. 52; legacy duty. 178 c. 88, butter - - 488 37 Geo. 3, c. 123, oaths . . 58 38 Geo. 3, c. 5, hospitals and land tax : 70 c. 60, hospitals and land tax - 70 39 Geo. 3, c. 34, game . 276 ¢. 79, printers . 488 39 & 40 Geo. 3, c. 99, pawn- brokers. i . 485, 491 42 Geo. 3, c. 38, sale of beer . 189 A3 Geo. - c. 59, bridge. =, -291 C. 99, distress . 153 c. 116, land tax . 495 C. 161, duties . 3874 44 Geo. 3, c. 98, conveyancer. 489 47 Geo. . c. 68, coals . 488 48 Geo. 3, c. 48, excise . . 201 c. 55, inhabited houses 48 c. 106, expired Acts 519 50 Geo. 3, c. 41, hawkers . 217 51 Geo. 3, c. 36, justices . 464 53 Geo. 3, c. 127, justices . 190 ¢. 159, shipowner . 375 54 Geo. 3, c. 68, proctor . 824 c. 84, justices. . 462 c. 93, personation . 324 c. 156, copyright . 194 c. 159, harbours . 226 55 Geo. 3, c. 58,8. 2, excise . 329 c. 137, poor 69, 200 c. 184, Stamp Act 207 56 Geo. 3, c. 50, sale of farm stock . 200 c. 58, excise . 201, 202 c. 139, apprentice. 9 57 Geo. 3, ¢. 99, clergy . . 457 59 Geo. 3, ¢. 3, duties . 515 C. 38, curing fish, New- foundland, &e., 379 c. 50, poor » 396 c. 69, foreign. en- listment . 380 1 Geo. 4, c, 117, larceny 511 1 & 2 Geo. 4, « 18, witchcraft 516 Digitized by Microsoft® TABLE OF STATUTES, PAGE 3 Geo. 4, c. 39, warrant of at- torney . . 3890 ce. 71, cruelty . . 419 c. 126, tumpikes 215, 380 4 Geo. 4, c. 34, master and servant 114,123, 226 c. 94, excise . . 490 c. 95, turnpikes . 380 5 Geo, 4, c. 14, marine forces on shore . 291 c. 83, vagrant 44, 326 c. 84, felon 58, 461 c. 113, slave trade . 30, 172 6 Geo. 4, c. 16, bankruptcy 44, 46, 47, 170, 267, 374 c. 50, false verdict . 516 c. 57, settlement . 48 c. 81, excise . 490 c. 125, pilots . . 395 7 Geo. 4, c. 46, Joint Stock Banks . é . 196 c. 57,insolvents . 466 7&8 Geo. 4, c 28, criminal trials . . 872 c. 29, false pre- tences 325, 344 c. 30, riot . 342 c. 71, arrest . 219 9 Geo. 4, c. 14, limitations 46, 89, 267, 394 c. 23, bankers . . 207 c. 31, s. 8, murder at sea. . 175, 239 c. 40, lunatic prisoner 514 c. 60, corn . 339 c. 61, public-houses 197, 389, 514 c. 69, game . 378 c. 83, justice in New South Wales . 169 10 Geo. 4, c. 56, friendly so- cieties . 3 . 106 11 Geo. 4 & 1 W. 4, c. 64, beer 217, 329 15, 247, 283 167, 207 c. 68, carriers c. 70, procedure xlvii PAGE 1 W. 4,¢. 47, prevention of having arms, Treland . . 62 c. 51, valuation of lands, Ireland . . 202 c. 64, beer. - 201, 202 1&2 W. 4, ¢c. 22, hackney carriage 290, 389 ce, 32, game 118, 239, 338 c. 58, interpleader 165 2 W. 4, c 33, suits for land . 358 2&3W.4,¢. "45, Reform Act 41, 47, 48 c. 71, prescription 11, 36, 107, 218, 402 c. 100, tithes 61, 199 3&4 W. 4, ¢. 15, dramatic copyright . . 87 c. 27, limitations 104, 185, 199, 203 c. 42, limitations 20, 47, 91, 185, 203, 272, 314, 405 c. 53, customs . 241 c. 63, apprenticeship 242 c. 74, fines and re- coveries 304,451 c. 90, poor . . 411 c, 98, usury . 204 c. 105, dower 34, 36 4&5 W. 4,c. 36,C. ©. court 371 c. 76, poor 69, 100, 200,434,443,461,480 c. 82, stock . . 358 c. 85, publichouses 55, 142, 468 5&6 W. 4, ¢. 28, loan socie- ties . 155 ce. 41, bankrupt securities. 374 c. 50, highways 148, 189, 190, 207, 286, 330, 341, 389, 484, 508 c. 54, prohibited degrees . 71, 172 Digitized by Microsoft® xlvili PAGE 5 &6 W. 4, c. 63, weights and measures 127,171, 331 c. 76, municipal corporations 85, 88, 332, 400, 415 c. 83, patent . 262 6&7 W. 4,¢.37, bread . 330 C. 56, regulating process, Scot- land. . 516 c.57, punishment of offences by a ects, Cape ood Hope 169 c. a: tithe com- mutation . 102 c. 76, newspaper stamp - 849 c. 86, registra- tion i 494 c. 96, Paroch, Assessment Act . 47, 465 1 Vict., c. 26, wills . 100 c. 36, post office . 339 c, 45, jurisdiction of judges, &. . . 19 c. 85, injuries to per- son . 404 1 & 2 Vict., c, 26, wills. °. 387 c. 80, special con- stables . . 444 c. 106, clergy 208 ce. 110, tnsol vert | 43, 46, 94, 191, 199, 216, 219, 467 2 & 8 Vict., c. 11, judgments. 19 c. 37, usury - 204 c. 47, police 122, 221, 389 ce. 71, police - 403 c. 73, suppression of slave trade 180 c. 84, rates . 299 3 & 4 Vict., c. 24, costs 211, 511 c. 54, lunatic pris. 515 c. 61, beer . . 148 c. 65, admiralty Pi, 429 c, 85, chimneys . 205 TABLE OF STATUTES. PAGE 3 & 4 Vict., c. 86, church dis- cipline . - 292 ce. 97, obstructing train - 336 4 & 5 Vict., c. 48, corporations 381 , Ece. leases «211 , ¢ 22, lunatic pris, 191 CG. 39, factors 105, 245, 400 c. 45, copyright 182, 260, 453 » 288 . 350 adultera- c. 54, tithes c. 79, stamp c. 93, tion 5 c. 95, Quarter Ses- sions. 6 Vict., c. 18, Reg. of voters 47, 88 6 & 7 Vict., c. 68, plays . 185 c. 73, attorney 271, 325, 499 c. 76, extradition 838 c. 86, hackney 120 . 220 carriages . 389 c. 94, jurisdiction abroad - 169 c. 96, Ld. Camp- bell’s Act 125, 135 7 Vict., c. 15, factories 206, 340 7 & 8 Vict., c. 24, engrossing 516 c. 29, game. - 378 c. 96, insolvency. 72 c. 101, poor 11, 170, 183 c. 110, joint-stock companies 298, 483 8 Vict. c. 16, comp. clauses 129, 298, 455 c. 18, lands clauses 162, 219 c, 20, railway clauses. 72, 498 8 & 9 Vict.,c. 10, bastard . 471 c. 89, ship registry 255 c. 95, county court ' 446 c. 100, Iunatics . 122 Digitized by Microsoft® TABLE OF PAGE 8 & 9 Vict., c. 106, real pro- perty 208, 215, 392 127, 259 9 &.10 Vict., c. 93, loss of life 182 c. 95,county courts 155, 192, 402 10 & 11 Viet., ¢. 15, gas works 68, 226 c. 27, harbours 112 ce. 89, town police i ec. 102, insol- vency . . 282 11 & 12 Viet., ec. 21, Indian insolvency c. 42, justices c. 109, wagers 82 12 288, 419 c. 48, justices . 193, 268, 372, 427 c. 44, justices . 54 c. 63, health of towns 190, 236, 409, 458, 466, 469, 412 c. 123, nuisances 157, 192 12 & 18 Vict.,c. 45, quarter sessions 54, 164, 193, 210 c. 92, cruelty . 244 c. 96, crime on high seas 173, 385 c. 106, bank- ruptcy,s. 113. Pivv Be 112, 198 3. 137 s. 201. 5202. . 44,874 8s, 224 . : . 261 13 & 14 Vict. c. 21, constr. of statutes 420, 421, 510, 513, 519 c. 61, county . 42 . 243 53, 254, 390 . 339 courts . 476,512 c. 97, stamp . 209 14 & 15 Vict., ¢. 105, persona tion . . . 324 STATUTES. xlix : PAGE 15 & 16 Vict.,c. 54, county court + 512 c. 76, common law proc., s. 24 . . 18 8.51. . 278 s. 128 271 15 & 16 Vict., c. 86, chancery 73 16 & 17 Vict., ¢. 30, vexatious indictments a c. 51, succession duty 68, 178, 261 c. 59, cheque . 129 c. 96, lunatics . 113 c. 119, betting houses . . 415 17 & 18 Vict., ©. 31, rail traffic 280 c. 36, billsof sale 81, 82, 127, 136, 255 c. 38, gaming . 221 c. 102, bribery 340 c. 104, 8, 2, ship- ping 86, 379, 391 128 s. 50 . 255, 484 s. 55 & 66 . 455 s. 299 . ‘ 43, 128 s. 3853. ‘ . 210 s. 374 . . 280 s. 855. . 361 s. 879 . . 396 s. 888 . . 356 8.458 . . 177 s. 476 . 177 8S. 502—516. . 474 s. 523 1 . 97 s. 534 . . 875 17 & 18 Vict., c. 125, common law proc., 8.32. 8.50 . s. 60 . s. 128. . 271 18 & 19 Vict., c. 108, mines . 331 c. 118, public houses . . 197 c, 120, metrop. local manag. 157, 217, 444 c, 121, nuisance 89, 209 c. 122, metrop. building . . 112, 407, 460 ad . 273 16, 90 16, 43 Digitized by Microsoft® TABLE OF PAGE | 18 & 19 Vict., c. 124, charitable trusts. - 442 19 & 20 Vict., ¢. 97, mercantile law. amendment 262, 264, 269 ce. 108, county courts . . 215 20 Vict., c. 19, poor . 259 20 & 21 Vict, c. 3, penal ser- vitude . . 173 c. 48, appeal 165, 933, 471, 478 c. 83, obscene books . 126 21 & 22 Vict., c. 85, divorce 17, 172, 261 c. 90, medical . 265, 482 c. 95, probate . 266 c. 109, minerals 379 22 & 23 Vict.,c. 21, exche- quer . 358 c. 56, weights . 108 23 Vict., c. 27, refreshment houses . 56 c. 28, stock jobbing 329 23 & 24 Vict., c. 35, property 265 c. 38, judg- ments ce. 84, adultera- tion 38, 400 e. 125, Pea gas te 126, com. law proc. . c. 127, attorney 16, 325 24 Vict., c. 10, admiralty 40, 185, 271, 402, 473 2 pa) 63 . 220 24 & 25 Vict.,c. 21, excise 189, 377 c. 31, Sierra Leone . . 169 c. 61, local gov- ernment - 236 c. 91, stamp . 466 ce, 96, larceny 103, 107, 279, 325, 328, 343, 345 e, 97, mischief 336 | . 272 | STATUTES. PAGE 24 & 25 Vict., e. 98, forgery . 233 c. 100, offences against the person 121, 175, 334 . 120, 388 v. 134, bank- ruptey. . 377 25 & 26 Vict., c. 22, beer =. Q17 c. 35, public houses, Scot- land 150 c. 61 , highways 384 c. 63, merchant shipping 86, 183, 455 vu. 109, weirs c. 68, copyright 337 c. 87, friendly societies 512 c.89 , companies 39, 130, 384, 411, 431, 467, 484 c. 102, metrop. local manage- ment 37, 285, 327 c. 103, assess- ment . 459 c. 114, game. 283, 326 26 & 27 Vict., c. 29, election. 18, 279, 485 c. 85, prevention of offences, Sth. Africa . =. 169 c.41 innkeepers 454 c. 117, nuisance 412 27 & 28 Vict., o. 45, divoree . 17 c. 101, high- ways c. 116, foreign jurisdiction . 169 28 & 29 Vict., c. 88, locomo- tive . 330 c. 86, partner- ship . 348 ¢. 126, prisons 413, 414 45 29 & 30 Vict., c. 89, Thames navigation , . 438 Digitized by Microsoft® TABLE OF PAGE . 436 c. 23, insurance 132, 353 40 § & 31 Vict., 0.84, vaccination 249 c. 102, repres, of people c. 124, merchant shipping 43, 169 c. 131, compa- nies 131,431, 501 c. 142, county courts 46, 206, 512 c. 146, workshop 206 31 & 32 Vict., c.54,judgments extension . 430 c. 71, county courts, admi- ralty . 159 ec. 116, larceny 328 32 & 33 Vict., c, 27, wine and beerhouse 80 Vict., c. 6, asylum 4] 149, 441, 514 c. 41, assessment 11, 55 ce. 46, debts . 203 c. 51, county courts, admi- ralty « 22, 160 c. 55, municipal elections - 100 _ ¢. 62, debtors . 97, 164, 250 c. 68, evidence 198 c. 70, contagious diseases, ani- mals 118, 508, 508 , c. 71, bankruptey, 21, 68, 102, 130, 137, 148, 147, 170, 250, 277, 392, 451 33 & 34 Vict., c. 29, public houses c. 35, apportion- ment 258, 411 c. 90, foreign enlistment 340,379 ce. 93, married woman 20, 99, 432 c. 97, stamp . 145 34 Vict., c. 8, West African settlements 169, 174, 275 STATUTES. li PAGE 34 & 35 Vict., c. 48, ecclesias. dilapidations 461 c. 98, vaccinatn. 332 ce. 112, habitual criminals 35 & £6 Vict., c. 19, kidnapping 169, 259 ¢. 33, ballot 14, 39, 441, 463, 501 c. 74, adultera- tion . 394 c. 94, licensing 359, 389, 514 3 & 37 Vict., c. 60, extradi- tion 381 c. 66, judicature 97, 193 ce. 76, railways 98 ¢. 85, shipping 86, 243 38, Straits Settlements . 275 c, 62, infants . 264 c. 85, public worship 360, 458 38 & 39 Vict. c. 50, county courts . . 473 cv. 55, public health 109, 384 409, 469 c. 68, adultera- tion . 837 c. 77, Judicature 111, 214, 263, 423 39 & 40 Vict., c. 36, customs. 379 40 & 41 Vict., ¢. 39, factors . 105 41 & 42 Viet., c. 31, bills of sale. 21, 110 c. 77, highways 377 20 37 & 38 Vict., c. | 43 & 44 Vict., c. 42, employers 244, 266° 36 liability . 44 & 45 Vict., ¢. 41, convey- ancing é 265 c. 61, Welsh Sun- day closing 9 45 & 46 Vict., c. 34, beer : * 300 C. 43, bills of sale’ 21, 259 c. 75, married woman's property . - 101 Digitized by Microsoft® Digitized by Microsoft® ON THE INTERPRETATION OF STATUTES. CHAPTER I. SECTION J.—INTRODUCTORY. Statute law is the will of the Legislature ; and the object of all judicial interpretation of it is to deter- mine what intention is conveyed, either expressly or by implication, by the language used, so far as it is- necessary for determining whether the particular case or state of facts presented to the interpreter falls within it. When the intention is expressed, the task is one of verbal construction only ; but when, as occa- sionally 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 Legisla- ture, the interpreter has to determine it by inference grounded on certain legal principles. The Act, for instance, which imposes a penalty, recoverable sum- marily, on every tradesman, labourer and other person who carries on his worldly calling on a Sunday would E fsa Digitized by Microsoft® 2 INTERPRETATION OF STATUTES. 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 sum- marily ? 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 nevertheless be held to have entertained some intention, and the inter- preter 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 lan- guage 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. SECTION II.—LITERAL CONSTRUCTION. The first and most elementary rule of construction is, that it is to be assumed that the words and phrases -are used in their technical meaning if they have acquired one, and in their popular meaning if they have not, and that the phrases and sentences are to be construed according to the rules of grammar; and _ from this presumption it is not allowable to depart, ‘unless adequate grounds are found, either in the con- Digitized by Microsoft® LITERAL CONSTRUCTION. 3 text 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 (). When, indeed, the language is not only plain but admits of but one meaning, the task of interpretation can hardly be said to arise. It is not allowable, says Vattel, to interpret what has no need of interpreta- tion (b). Absoluta sententia expositore non eget (c). Such language best declares, without more, the inten- tion of the lawgiver, and is decisive of it (d). The Legislature must be intended to mean what it has plainly expressed, and consequently there is no room for construction (é). (a) Bac. Ab. Statute, I. 2; Grot. b. 2, c. 16, ss, 2, 35 Puff. LN. b. 5, ¢. 12; Warburton v. Loveland, Huds. & Br. 648; Becke v. Smith, 2 M. & W. 191; Everett v. Wells, 2 M. & Gr. 269; R. v. Pease, 4 B. & Ad. 41; McDougal v. Paterson, 11 CB. 755, 2 L. M. & P. 681; Mallan v. May, 13 M. & W. 511; Mattison v. Hart, 14 CB. 385; per Maule J. in Jeffreys v. Boosey, 4 HL. 815: 24 LJ. Ex. 89; per Lord Wensleydale in Grey 2, Pearson, 6 HL. 106, 26 LJ. Ch. 481, and Abbott z. Middleton, 7 HL. 114, 28 LJ. It matters not, in such a case, Ch. 110; R. wv Millis, 10 CL. & F. 749, per Lord Brougham ; Attorney-General v. Westmins- ter Chambers Assoc., 1 Ex. D. 476, per Jessel, MR. ; Cull ». Austin, LR. 7 CP. 234; R. a Castro, LR. 9 QB. 360. (0) Law of N., b. 2, 8, 263. (c). 2 Inst. 533. (d) Per Buller J. in'R. » Hodnett, 1 TR. 96 ; The Sussex Peerage, 11 Cl. & F. 143; U.S, v. Hartwell, 6 Wallace, 395 ; U.S. v. Wiltberger, 5 Wheat. 95. (ce) Per Parke J. in R. v. Ban- bury, 1 A. & E. 142; per Cur. B2 Digitized by Microsoft® 4 INTERPRETATION OF STATUTES. what the consequences may be. Where, by the use of clear and unequivocal 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 inten- tion, effect mustnevertheless be given to them (0). They cannot be construed, contrary to their meaning, as embracing or excluding cases merely because no good reason appears why they should be excluded or embraced (c). However unjust, arbitrary or incon- venient the intention conveyed may be, it must receive its full cffect (d). When once the intention is plain, it is not the province of a Court to scan its wisdom or its policy (e). Its duty is not to make the law reason- in Fisher v. Bright, 2 Cranch, 399. (a) Per Lord Campbell in R. v. Skeen, 28 LJ. MC, 94, Bell, 97; per Jervis CJ. in Abley v. Dale, 11 CB, 391, 2L. M. & P, 448, 21 LJ. 104; per Pollock CB. in Miller v. Salomons, 7 Ex. 475, 21 LJ. Ex. 197; per Lord Brougham in Gwynne v, Bur- nell, 6 Bing. NC. 559; Re British Farmers d&ec. Co., 48 LJ. Ch. 56, and Crawford », Spooner, 6 Moo. 9. See Sneed v. Com. 6 Dana, 339 (Kentucky). (0) Nolly » Buck, 8 B. & C. 164. (c) Pike v. Hoare, Eden, 184, per Lord Northington ; per Cur. in Dean v, Reid, 10 Peters, 524. (d) The Ornamental Wood- work Co. v. Brown, 2 H. & C. 63; 32 LJ. Ex. 190, per Martin B. and Bramwell B. ; Mirehouse v. Rennell, 1 Cl. & F. 546, per Parke J.; R. v. The Poor Law Commissioners, 6 A. & E. 7; Biffin » Yorke, 5 Man. & Gr. 437, per Erskine J.; May Grant, LR. 7-QB, 377. (e) Per Lord Ellenborough in R. v. Watson, 7 East, 214, and R, v. Staffordshire, 12 East, Digitized by Microsoft® LITERAL CONSTRUCTION. ‘ 5 able, but to expound it as it stands, according to the real sense of the words (a). It has been said that though vested rights are divested, and acts which were perfectly lawful when done, are subsequently made unlawful by a statute, those who have to interpret the law must give effect to it (b). And they are bound to do this even when they suspect (on conjectural grounds only) that the language does not faithfully express what was the real intention of the Legislature when it passed the Act, or would have been its intention if the specific case had been proposed to it. ‘It may have been an over- “ sight in the framers of the Act,” says Parke, B., in one case, “but we must construe it according to its “ plain and obvious meaning” (c). “ Our decision,” says Lord Tenterden, in another (d), “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 572; BR. v, Hodnett, 1 TR. 100, per Lord Mansfield ; R. v. Wor- cestershire, 3 P..& D. 465, 12 A. & E. 283, per Lord Denman ; per Bramwell B. in Archer v. James, 2 B, & S. 61; Miller v. Salomons, 7 Ex. 475, per Pol- lock CB.; Exp. Attwater, 5 ChD. 30, per James, LJ. (a) Biffin v. Yorke, 6 Scott, NR. 234, 5 M, & Gr, 428, per Cresswell J. See ex. gr. Plas- terers’ Co. v. Parish Clerks’ Co., 6 Ex. 630, 20 LJ. 362. (b) Midland R. Co. w Pye, 10:CB. NS. 179, per Erle CJ. (c) Nixon v Phillips, 21 LJ. Ex. 90, 7 Ex. 192. (d) R. v. Barham, 8B. & C. 99; and see per Bayley J. in R. v, Stoke Damerel, 7 B. & C. 569, Digitized by Microsoft® 6 INTERPRETATION OF STATUTES, “ the words of the Act, in order to give effect to what “we may suppose to have been the intention of the “ Legislature.” “I cannot doubt,” says Lord Camp- bell in another (a), “ what the intention of the Legis- “ lature 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 seek to reform it according to the supposed “intention.” “The Act,” says Lord Abinger, in: another (0), “has practically had a very pernicious “ effect not at all contemplated ; but we cannot con- “ strue it according to that result.” 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 (¢). Nothing could be more dangerous than to make such considerations the ground of construing an enactment that is quite complete and unambiguous in itself. To depart from the meaning on account of such views, is, in truth, not to construe the Act, but to alter it (d). (a) Coe v. Lawrence, 1 E. & 864, 22 LJ. Q.B. 230, B. 516, 22 LJ. 140. (d) Per Lord Brougham: in (0) Atty.-Genl. v. Lockwood, Gwynne v. Burnell, 6 Bing. NC. 9 M. & W. 395. See also per 56; per Lord Westbury in Exp. Lord Denman ‘in R. v. Mabe, 3 St. Sepulchre’s, 33 LJ. Ch. 373; A, & E. 531, per Grove J. in Allkins v, Jupe, (e) Per Cur. in York & N. LR, 2 CP. 385. Midland R. Co. % R, 1 E & B. Digitized by Microsoft® LITERAL CONSTRUCTION. 7 But the business of the interpreter is not to improve the statute; it is, to expound it. The question for him is not what the Legislature meant, but what its language means (a). To give it a construction con- trary 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 remember that their office is jus dicere, not jus dare (0). Though this rule appears so obvious, it is so frequently appealed to that it is advisable to illustrate it by some examples to show its general scope and the limits of its application. It was repeatedly decided at law (c), 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 dis- covered. or, practically, discoverable by the injured party when it accrued, or was even fraudulently con- cealed from him by the wrong-doer, until after the time limited by the Act had expired (d), The hard- (2) Wigram, Interp. Wills, in Rodrigues v, Melluish, 10 Ex. p. 7; per Cockburn CJ, in 116. Palmer v. Thatcher, 3 QBD. (c) Before the Judicature 353, 47 LJ. MC. 58; per Lord Act of 1873 (s.. 24), Coleridge, in Coxhead ». Mullis, (d) Short v. McCarthy, 3 B, 3 CPD. 439, 47 LJ. 761. & A. 626; Brown v. Howard, 2 (t) Lord Bacon, Essay on B, & B. 73; Colvin v Buckle, 8 Judicature. Per Pollock CB, M. & W. 680; Imperial Gas Co. Digitized by Microsoft® 8 “ INTERPRETATION OF STATUTES, ship of such decisions is obvious, but the language admitted of no other construction. So, if an Act provides that convictions shall be made within a certain period after the commission of the offence, 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 (a). So, when an Act 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 pro- nounced, not from the day of its service on the agorieved person (b). Even when the order is made v. London Gas Co., 10 Ex. 39; - See also Kirk v Todd, 21 Bonomi w. Backhouse, E. B. & E, 622, 27 LJ. QB. 378, 28 LJ. 380, 34 LJ. 181,9 HL. 503; Smith »v Fox, 6 Hare, 386; Violett v. Sympson, 27 LJ. QB. 136; Hunter v. Gibbons, 1 H. & N. 459; Lamb »w Walker, 3 QBD. 389. As to concealed fraud, see the cases in equity collected in Ecclesiastical Com- missioners v. N. E. R. Co. 4 ChD, 845, and since the Judica- ture Act of 1873, Gibbs v. Guild, 9 QBD. 51, 51 LJ. QB. 313, ChD, 484. (a) R. a Bellamy, 1 B, & 0, 500; R, » Tolley, 3 Hast, 467; Bellew v. Wonford, 9 B. & C, 135; Farrelly, Tomlinson, 5 Bro. P. C. 438; Adam v, The Inhabi- tants of Bristol, 2 A. & E. 389 ; R. v. Mainwaring, E. B. & EF. 474, 27 LJ. MC. 278, (2) R. » Derbyshire, 7 QB. 193; R. » Huntingdonshire, 1 L. M. & P. 78 ; Exp. Johnson, 3 B. & 8S. 947; R. v. Barnett, 1 QBD, 558 ; comp. R, » Shrews- Digitized by Microsoft® LITERAL CONSTRUCTION, ‘9 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 (a), notwithstanding the manifest hardship and injustice resulting from such an enactment (0). Where an Act ordained that no converted Papist should be deemed a Protestant unless he received the sacrament, took the abjuration oath, and filed certain certificates within six months from his declaring himself a Protestant, a compliance one day after that period was held too late (c). The Welsh Sunday Closing Act of 1881, being fixed to come into operation on the day “ next appointed ” for the annual licensing meeting, was by a literal construction postponed for a year later than was, in all probability intended ; but the Court refused to avert this result by any de- parture 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). bury, 1 E. & B. 711, 22 LJ, hummed ». Bareilly, LR. 1 Ind. MC. 98. App. 167. (a) Rw. Staffordshire, 3 East, (d) Richards v. McBride, 51 151. LJ. MC. 15. (0) Per Lord Ellenborough, (e) R. v. Stoke Damarel, 7 B. Id. 153. & C. 563. See also R. vw. Mel- (c) Farrell v Tomlinson, 5 lingham, 2 Bott. 492; R. w Bro. P. C, 438, See also Mo- Mareram, 5 TR. 153; RB. » Digitized by Microsoft® 10 INTERPRETATION OF STATUTES. 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 attestation was held fatal, although the attestation clause of the deed asserted it (a). It would not be open to the interpreter, in such cases, to shut his eyes to the formalities required, because he deemed them unim- portant, or because a hardship or failure of justice might be the consequence, in the particular 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 obedi- ence to the letter, however arbitrarily the power which it conferred might be misused, and although the withdrawal of the licence would in effect amount to a dismissal of the pilot from his employment (0). The Prescription Act, making all easements inde- feasible 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 St. Peter’s, 1 B. & Ad. 916; RB. 139. y. St. Paul’s, 10 B. & C..12; (6) Henry v. Newcastle Trinity R. v. Staffordshire, 23 LJ. MC. House, 8 E. & B, 723, 27 LJ. 17. MC. 57. (a) Ford v. Kettle, 9 QBD. Digitized by Microsoft® LITERAL CONSTRUCTION. 11 right (a). 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 (6). An enactment that a magistrate might on the appli- cation of the mother of a bastard, summon its putative father for its maintenance, within twelve months from its birth, would not authorise a second magistrate to issue a second summons after the expiration of the twelve months, merely because the first summons could not be served by reason of the defendant having absented himself, and could not be renewed or con- tinued, because the justice who had issued it had died (c). And as the same enactment required the justices to hear the evidence of the mother at the hearing, and such other evidence as she might produce, and if her evidence was corroborated, to adjudge the trations, R. v. Mabe, 3 A. & E. 531; Marsden ». Savile Foundry, (a) 2 & 3 Wm. 4, c 71; Wright v. Williams, 1 M. & W. 77. See Ward». Robins, 15 M. & W. 237; and Cooper v. Hab- buck, 12 CB. NS. 456, 31 LJ. 323. (6) St. Werburgh v, Hutchin- son, 5 ExD, 19; 32 & 33 Vict. c. 41,8. 16. See, as other illus- 3 ExD. 203; Simpkin ». Bir- mingham, LR.7 QB. 482 ; White v, Coquetdale, 7 QBD. 238. (c) 7 & 8 Vict. « 101; R.. », Pickford, 1B, & 8.77, 30 LJ. MC. 133. Digitized by Microsoft® 12 INTERPRETATION OF STATUTES. man to be the putative father, it was held that no order could be made against the putative father when the mother was not examined, having died after the summons and before the hearing (a). Where an Act prohibits the removal of a conviction by certiorari to the Supreme Court, that writ cannot be issued (the justices having jurisdiction) even for the purpose of bringing up a case stated by justices for the opinion of the Court; although the object of such a prohibition is to prevent convictions being quashed for technical defects, but not to exclude the jurisdiction of the Supreme Court, when consulted on a substantial question which the justices themselves have raised (b). An Act which imposed-a penalty on any person who piloted a ship in the Thames before he was examined and admitted a Trinity House pilot was held not to reach one who had been expelled from the Society after examination and admission (c). The Indian Insolvent Act, 11 & 12 Vict. c. 21, which required the insolvent to file a schedule of all his .creditors, and provided that his discharge should be a bar to all demands, like a certificate under the bank- ruptcy laws in England, was held to bar'a debt which had not been included in the schedule, and the creditor had consequently been deprived by the neglect or design of his debtor of the opportunity of opposing (a) R. wv, Armytage, LR. 7 QB. 587. QB. 773. (c) Pierce v. Hopper, 1 Stra. (0) R. vChantrell, LR. 10 249, Digitized by Microsoft® LITERAL CONSTRUCTION ILLUSTRATED: 13 the discharge (a). So, where an Act gave an appeal to the next session, and directed that “no appeal should be proceeded upon” if it was found by the session that no reasonable notice had been given, but should be adjourned to the next session, the appellant was enabled to secure delay by omitting to give any notice, so that the session could not find that “reason- able notice” had been given (b). In these two cases the construction worked an injustice and enabled a person to take advantage of his own wrong or neglect; but the language of the Legislature admitted of no other construction. The Act which required members of Parliament, before voting in the House, to take the abjuration oath in-a form which concluded with the declaration that it was taken “on the true faith of a Christian,” received a literal construction, which had the effect of excluding Jews from Parliament; although the history of the enactment showed that it was intended to test the loyalty, not the religious creed, of the member, and was directed solely to the exclusion of Roman Catholics; and though those who refused to take the oath would have been deemed Popish recusants, and liable to banishment as such(c). So (a) Exp. Parbury, 3 DeG.F. fordshire, 7 East, 549. See R. v. & J. 80, 30 LJ. Ch.513; comp. Sussex, 4 Best & 8. 966; 34 Nelson v. Alcard, 8 Ex. 260,22 LJ. MC. 69. LJ. Ex. 45. (c) 1 Geo. 1, st. 2; Miller ». (b) 9 Geo. 1, c 7; R. v Salomons, 7 Ex. 475, 21 LJ. Ex, Bucks, 3 East, 342; R. v. Staf- 161, 8 Ex. 778, 22 LJ. Ex. 169. a Digitized by Microsoft® 14 INTERPRETATION OF STATUTES. the plain language of the Test and Corporation Acts of Charles II, though the first of them was really aimed only at the actual holders of offices, and the second at Roman Catholics, had the effect of disqualifying Pro- testant dissenters from public employment. Where -an Act disqualified from killing game all persons not possessing land of a certain value, except the heir apparent of an esquire or other person of higher degree, it was held that esquires not possessed of the requisite property qualification were not excepted. However strange it might seem that the Legislature should refuse them the privilege which it had granted to their eldest sons (a), it was held to be safer to adopt what the Legislature had actually said rather than to conjecture what they had meant to say (b). So, under an Act which qualified for the magistracy owners in immediate remainder or reversion of lands leased for two or three lives, it was held that a re- mainderman expectant on the death of a tenant for life in possession was not qualified, as there was no lease. There was perhaps no good reason why the qualification should not have been extended to such a remainderman, but there was no actual ab- surdity, inconvenience, or injustice in the omission (¢). The rule in the Ballot Act, which provides that a candidate may undertake any duties which any agent (a) Jones v, Smart, 1TR. 44. ward v. Watts, 2 E. & B, 452, (6) Per Ashurst, J., Id. 51. 22 L. J. 149, (c) 18 Geo. 2, c. 20; Wood- Digitized by Microsoft® LITERAL CONSTRUCTION ILLUSTRATED. 15 of his, if appointed, might have performed, and may assist his agent in the performance of such duties, and “may be present at any place at which his agent may, in pursuance of the Act, attend,” was construed. literally as authorising the presence of the candidate absolutely, and not only in the event of his under- taking the duties of his agent or assisting him ; though it was conceded that this construction gave a barren and useless, or even mischievous right, against which the other provisions of the Act seemed to militate (a). A statute which empowered a Court of Requests to summon any person residing in a town or navigating from its port, by leaving the summons at his abode, and to proceed ex parte if he did not appear, was held to justify ex parte proceedings against a sea- faring man who had for months before the summons, and during the whole of the proceeding, been absent beyond the seas (5). So, where an Act authorised justices to hear bastardy cases on proof that the sum- mons had been served at the last place of abode of the putative father, it was held that they had juris- diction in a case where the latter was abroad, and had had no cognizance of the summons(c). The Carriers Act, which exempted a common carrier from (a) Clementson v. Mason, LR. (c) R. v. Damarell, LR. 3. 10 CP. 209; see per Brett, J., QB. 769. See also R. v Davis, Id. 217. _ 1 Bail C.C. 191, 22 LJ. MC. (6) Culverson v. Melton, 12 143; R. v. Higgins, 7 E. & B. A. & E. 753, 557, 26 LJ. MC. 116. Comp. Digitized by Microsoft® 16 INTERPRETATION OF STATUTES. liability for the loss of ‘or injury to certain classes of goods unless the value was declared and insured, was construed literally as exempting him from liability, even when the loss was owing to his negligence (a). The Common Law Procedure Act of 1854, which empowered a judge to order either party to a cause to produce documents, upon the application of the other party supported by his own affidavit, was held not to authorise an order on the affidavit of another person in its stead (b). And the same Act, in empowering a judgment creditor to obtain an order for the examina- tion of his debtor, was held not to authorise the ex- amination of the directors when the debtor was a corporate body (c). So, the Solicitors Act, 23 & 24 Vict. c. 127, s. 28, which authorises the imposition of a charge for costs on property recovered or preserved through the instrumentality of a solicitor, was held not to authorise such a charge, where the suit was to prevent or stop an invasion of the right to light; for this was a suit not respecting property, but respecting an easement merely, or the mode in which it was enjoyed (d); nor to a case where proceedings had not R. v Smith, LR. 10 QB. ford » G. W. R. Co, 33 LI. 604. “OP. 307, 16 CB. NS. 761. (a) Hinton v. Dibben, 2 QB. (c) Dickson » Neath and 646: Morritt v. N. E.R. Co.,1 Brecon R. Co., LR. 4 Ex. 87. QBD. 302. (d) Foxon v Gascoigne, LR. (b) Christopherson v. Lotinga, 9 Ch. 654, 15 CB. NS. 809; comp. Kings- Digitized by Microsoft® NO ADDITION OR OMISSION. 17 gone beyond a decree for an account, and the parties had then compromised without the knowledge of the solicitor of the party who thereby did recover property (a). It is but a corollary to the general rule in question, that nothing is to be added to or to be taken from a statute, unless there are similar adequate grounds to justify the inference that the Legislature intended something which it omitted to express(b). A case which has been omitted is not to be supplied merely because there seems no good reason why it should have been omitted, and the omission appears consequently to have been unintentional. Thus, the Divorce Act, which provided that any order made for the protection of the earnings of a deserted married woman might be discharged by the magistrate who made it, was held not to empower his successor to discharge it, though the magistrate who had made it was dead (c). An Act (a) Pinkerton v. Easton, LR. 16 Eq. 440. (®) See per Tindal, CJ., in Everett v. Wells, 2 M. & Gr. 277; per Lord Westbury in Exp. St. Sepulchre, 33 LJ. Ch. 375; Re Cherry’s Estate, 31 LJ. Ch. 351. See, however, Re Wainwright, Williams 4. Evans, and other cases men- tioned infra, Chap. IX., s, 1. (c) 21 & 22 Vict. c. 85 ; Exp. Sharp, 5 B. & S. 322; 33 LJ. MC. 152; see now 27 & 28 Vict. c. 45. See also Nettleton v. Burrell, 8 Scott, NR. 738; Wanklyn v. Woollett, 4 CB. 86 ; R. v. Ashburton, 8 QB. 871; Higgs v. Schroeder, 3 CPD. 252; Newton v. Boodle, 3 CB. 795 ; Hind v, Arthur, 7 D. & L. 252. Digitized by Microsoft® 18 INTERPRETATION OF STATUTES, which authorizes the removal of lunatics to a hospital when there is no lunatic asylum established in the county, does not authorize such a removal when a county asylum exists, but is so full as to be unable to receive another lunatic (a). If an Act requires that a writ, on renewal, shall be sealed with a seal denoting the date of renewal, a copy of the writ cannot be substituted for the original for this purpose, when the original is lost (2). So, also, it was held that the 26 & 27 Vict. c. 29, which enacts that answers made to an election commission shall not-be admitted in evidence in any proceeding except in cases of “ indict- ment” for perjury, left them excluded in “ informa- tions” for perjury filed by the Attorney-General (c). 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 pro- secuted against them(d). So, when extra-parochial places were made rateable, without either repealing the enactments which required that a copy should be (a) R. w Ellis, 6 QB. 501. (c) BR. w Slator, 8 QBD. (b) 15 & 16 Vict. c. 76, and 267, Ord. 8, Judic. Act ; Davis v. Gar- (d) Holmes v, Service, 15 land, 1 QB. 250; and see Nazer CB, 293, 28 LJ. 24; William- v. Wade, 1 B. & 8. 728, 31 LJ. son v Maggs, 28 LJ. Ex. 5. QB. 5; Evans v. Jones, Id. 61; See Judic. Act, 1875, Ord. Freeman v, Tranch, 12 CB, 406, 9 (5). 21 LJ, 214, Digitized by Microsoft® NO ADDITION OR OMISSION, 19 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 (a). The 4&5 W.&M.c. 20, which required that judgments should be docketted, enacted that undocketted judgments should not affect lands as regarded purchasers or mortgagees, or have preference against heirs or executors. The 2 & 3 Vict. « 11 abolished docketting, and enacted that no judgment should have effect unless registered ; but it made no provision for the protection of heirs and executors. Though this was perhaps an oversight, resulting in hardship onan executor who had paid simple contract debts without keeping sufficient assets to meet an un- registered judgment of which he had no notice, the Court refused to supply the omission (6). These were all casus omissi which the Court could not reach by any recognised canons of interpretation. Where an Act authorized the apportionment of the cost of making a sewer, without limiting any time for the purpose, the Court refused to read the Act as limiting the exercise of the power to a reasonable time (c). The 21 Jac. 1, having provided that the Statute of (a) R. v, Dyott, 9 QBD. 47, Beay. 600, 29 LJ. 324. 51 LJ. 104; 17 Geo. 2,¢. 3, (c) Bradley ». Greenwich and 1 Vict. c. 45. Board, 3 QBD. 384. (6) Fuller v, Redman, 26 c 2 Digitized by Microsoft® 20 INTERPRETATION OF STATUTES. 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 8 & 4 W. 4, ¢. 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(a). 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 conse- quences 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 1870, empowered a married woman to sue, without making her liable to be sued, it was held that no action lay against her (b). The Habitual Criminals’ Act, in enacting that upon a trial for receiving stolen goods, a previous conviction for any offence involving dis- honesty should be admissible against the prisoner as evidence of his having received with guilty knowledge, provided that notice were given to him that the con- viction would be put in evidence “and that he would be deemed to have known that the goods were stolen until he proved the contrary,” omitted, however, to enact substantively that this effect should be given to (a) Lane v, Bennett, 2C. M. — (2): 33 & 34 Vict. 0. 93, 8 & R. 70; Battersby » Kirk, 2 11; Hancock v. Lablache, 3 Bing. NC. 584, CPD. 197. Digitized by Microsoft® NO ADDITION OR OMISSION. 21 the conviction ; and it was held that the omission could not be supplied (a). Without such an emenda- tion, 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 instru- ment was explained by the solicitor to the grantor before execution, it was held that no explanation 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 (6). «So, although the Bankruptcy Act of 1869 provided for securing for the general body of creditors the proceeds of goods of a debtor sold in execution, it made no express provision for dealing with his goods when seized under an elegit ; and it was held that the omis- sion, however fatal to the whole policy of the Act, could not be supplied by any stretch of judicial inter- pretation (c). Where a railway Act provided that the company, while in possession, under the Act, of lands liable to assessment to parochial rates, should, until its works (a) R. wv Davis, 1 C.C. R. 43. See also Exp. Bolland, 272, 39 LJ. 135. 21 Ch. D. 543. (b) Repealed by 45 & 46 (c) Exp. Abbott, 15 Ch. D. Vict. c. 43, 3. 10; Exp. Na- 447. tional Merc. Bank, 15 Ch. D. Digitized by Microsoft® 22 INTERPRETATION OF STATUTES. were completed 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(a); but this construction was rejected by the Queen’s Bench and by the Exchequer Chamber, partly on the ground that in effect it in- troduced the words “ in the parish” into the Act; and it was held that the company continued liable to make good the deficiency in every parish until the whole line was completed from end to end (0). A construction which would leave without effect any part of the language, would be rejected, unless justified on similar grounds(c). Thus, where an Act plainly gave an appeal from one Quarter Sessions to another, it was observed that such a provision, though extraordinary and perhaps an oversight, could not be eliminated (d). The 32 & 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, (a) Whitechurch v. East Lon- LR. 7 Ex. 248; reversed, how- don Co. LR. 7 Ex. 248. ever, 7 HL. 89. .(b) R. vw Metrop. Distr. R. (c) See infra, Chap. IX, s. 1. Co, LR. 6 QB. 698 ; White- (d) R. v West Riding, 1 QB. church v. East London R. Co., 329. Digitized by Microsoft® NO ADDITION OR OMISSION. 23 and power to the latter Court to transfer any such causes to itself, was at first held not to give the County Court jurisdiction over suits for the breach of a charter-party, notwithstanding the comprehensive nature of the language used ; on the ground that the literal construction would involve the presumedly unintended anomalies of giving by mere implication a large, novel, and inconvenient jurisdiction to the Court of Admiralty, and to the suitor the remedy of proceed- ing in rem when his claim was under £300, which he did not possess when it exceeded it (a). 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 (b); and yet it was difficult to believe that the resulting consequences were within the contemplation of the Legislature or the scope of the enactment. Where the language is precise and unambiguous, but at the same time incapable of reasonable meaning, and the Act is consequently inoperative ; a Court is not at liberty to give the words, on merely conjectural grounds (c), a meaning which does not belong to them. Thus, where an Act made warrants of attorney to confess judgment void as against the assignees of a (a) Simpson v. Blues, LR 7 PC, 134; The Alina, 5 PD, 138, CP. 290; Gunnestad v Price, 49 LJ. 40. LR. 10 Ex. 65. (c) But see infra, Chap. IX. (6) Gaudet » Brown, LR. 5 8. 1, Digitized by Microsoft® 24 INTERPRETATION OF STATUTES. bankrupt, if not filed within twenty-one days from execution, or unless judgment was signed “ or” execu- tion was “issued” within the same period ; the Court of Queen’s Bench refused to alter “or” into “ and,” and “issued” into “levied ;” though the passage 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 the Legislature (a). SECTION II].—THE CONTEXT—EXTERNAL CIRCUMSTANCES. 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 context nor the consequences to which the literal interpreta- tion would lead, show that that interpretation does not express the real intention. But it is another elementary rule, that a thing which is within the letter of a statute is not within the sta- tute unless it be also within the meaning of the Legis- lature (6), and the words, if sufficiently flexible, must be construed in the sense which, if less correct gram- matically, is more in harmony with that meaning (c). (a) Green v Wood, 7 QB. Doe ». Moffatt, 15 QB. 257. 178; see also Doe v. Carew, 2 (6) Bac. Abr. Statute (I.), 5. QB. 317; and Mundy v. Rut- (c) See per Cur. in Holling- land, QB. Nov. 29,1882. Comp. worth v Palmer, 4 Ex. 281; Digitized by Microsoft® FALLACY OF LITERAL CONSTRUCTION. 25 Language is rarely so free from ambiguity as to be incapable of being used in more than one sense; and to adhere rigidly to its literal and primary meaning in all cases would be to miss its real meaning in many. If a literal meaning had been given to the laws which forbade a layman to lay hands on a priest, and punished all who drew blood in the street, the layman who wounded a priest with a weapon would not have fallen within the prohibition, and the surgeon who bled a person in the street to save his life, would have been liable to punishment (a). On a literal construc- tion of his promise, Mahomed IL.’s sawing the Venetian governor's body in two, was no breach of his engage- ment to spare his head; nor Tamerlane’s burying alive a garrison, a violation of his pledge to shed no blood (b). On a literal construction, Paches, after inducing the defender of Notium to a parley under a promise to replace him safely in the citadel, claimed to be within his engagement when he detained his foe until the place was captured, and put him to death after having conducted him back to it(c); and the Waugh »w. Middleton, 8 Ex. 352, 22 LJ. Ex. 111, per Pollock CB.; Caledonian R. Co. v. N. Brit. R. Co., LR. 6 App. 122, per Lord Selborne; per Lord Blackburn, in Edinburgh Tram- ways Co. v. Torbain, 3 App. 68 ; “River Wear Com. v. Adam- son, 2 App. 743, and ‘Direct U. 8. Cable Co. v. Anglo-Ameri- can Telegraph Co., Id. 412; per Jessel, MR. in Exp. Walton, 17. Ch. D. 746. (a) 1 Bl. Comm, 60. (5) Vattel, L. N. b. 2, 8. 273, (c) Thucyd. 3, 34; Grote’s Greece, vol. 6, c. 50. Digitized by Microsoft® 26 INTERPRETATION OF STATUTES. Earl of Arygll fulfilled in the same spirit his pro- mise to the laird of Glenstane, that if he would surrender he would see him safe to England ; for he hanged him only after having taken him across the Tweed to the English bank (a). The equivocation or ambiguity of words and phrases, and especially such as are general, is said by Lord Bacon to be the great sophism of sophisms (8). They have frequently more than one equally obvious and popular meaning ; words used in reference to one subject or set of circumstances may convey a meaning quite different from what the same words used in refe- rence to another set of circumstances and another object would convey. Many admit of indefinite extension or restriction, according to the subject to which they relate, and the scope and object in contem- plation. They may convey faithfully enough all that was intended, and yet comprise also much that was not ; or, be so restricted in meaning as not to reach all the cases which fall within the real intention. Even, therefore, where there is no indistinctness or conflict of thought, or carelessness of expression in a statute, there is enough in the natural vagueness and elasti- city of language to account for the difficulty so fre- quently found’in ascertaining the meaning of an enactment, with the degree of accuracy necessary for (a) Burton’s Sc. Crim. Tr. b., b. 2, ¢. 16,8. 5. 17. See other instances of such (6) Lord Bacon, Adv. of Learn- frauds collected in Grot.de jure ing, b. 2. Digitized by Microsoft® FALLACY OF LITERAL CONSTRUCTION. 27 determining whether a particular case falls within it. But statutes are not always drawn by skilled hands, and they are always exposed to the risk of alterations by many hands which introduce different styles and consequent difficulties of interpretation. Nothing, it has been said by a great authority (a), is so difficult as to construct properly an Act of Parliament; and nothing so easy as to pull it to pieces. The literal construction then, has, in general, but a prima facie preference. To arrive at the real meaning, it is always necessary to take a broad general view of the Act, so as to get an exact conception of its aim, scope and object. Itis necessary, according to Lord Coke (6), to consider, 1. What was the law before the Act was passed ; 2, What was the mischief or defect for which the law had not provided ; 3. What remedy Parlia- ment has appointed; and 4. The reason of the remedy. According to another authority, the true meaning is to be found, not merely from the words of the Act, but from the cause and necessity of its being made, from a comparison of its several parts and from extraneous circumstances (c). The true meaning of any passage is to be found not merely in the words of (a) Per Lord St. Leonards in 10 Rep. 73a. O'Flaherty v. McDowell, 6 HL. (c) Per Turner LJ. in Haw- 179; and see also per Bramwell, kins v. Gathercole, 6 De G. M. LJ., in 2 QBD. 552, 2 CPD. & G. 1,24 LJ. 338, citing Strad- 496, 4 QBD. 115. ling ». Morgan, Plow. 204 ; and (b) Heydon’s Case, 3 Rep. 7b; Eyston v. Studd, Id. 465. Digitized by Microsoft® 28 INTERPRETATION OF STATUTES. that passage, but in comparing it with every other part of the law, ascertaining also what were the circum- stances with reference to which the words were used, and what was the object appearing from those circum- stances, which the Legislature had in view (a). As regards the history, or external circumstances which led to the enactment, the general rule which is applicable to the construction of all other documents is equally applicable to statutes, viz., that the inter- preter should so far put himself in the position of those whose words he is interpreting, as to be able to see what those words relate to. Extrinsic evidence of the circumstances or surrounding facts under which a will or contract was made, so far as they throw light on the matter to which the document relates, and of the condition and position and course of dealing of the persons who made it or are mentioned in it, is always admitted as indispensable for the purpose not only of identifying such persons and things, but also of explaining the language, whenever it is patently ambiguous or susceptible of various meanings or shades of meaning, and of applying it sensibly to the circum- stances to which it relates(b). Thus, when a charter- (a) See per Lord Blackburn Wood ». Priestner, LR. 2 Ex. in Wear Navig. Com. v. Adam- 70; Shortrede v. Cheek, 1 A. & son, 2 App. 743. E. 57 ; Baumann »v. James, LR. (6) Wigram Int. Wills, Prop. 3 Ch. 508; Doe v, Benyon; 12 5; Anstee v Nelms,1 H.&N. A. & E. 431; Blundell a Glad- 225, 26 LJ. 5, per Bramwell, B.; ‘stone, 3 Mc. N. & G. 692; Digitized by Microsoft® EXTERNAL CIRCUMSTANCES, 29 party stipulates that “detention by ice” is not to be reckoned among laying days, the meaning intended by this term cannot be accurately determined without that knowledge of the circumstances of the port and trade which the parties possessed, or are conclusively presumed to have possessed; and evidence of these circumstances is received for the purpose of accurately construing the contract(a). When a vessel is war- ranted seaworthy, the meaning must vary with the nature, not only of the vessel but of the voyage ; and evidence of these circumstances is admitted in order to ascertain the precise intention of the parties. Ina lease of a house with a covenant to keep it in tenant- able repair, it is necessary to ascertain whether the house is an old or a new one, whether it is a tenement in St. Giles’s, or a palace in Grosvenor Square; for that which would be a repair of the one, might not be so of the other. So, on the sale of a horse warranted to go well in harness, the qualities of a good goer would be different in one fit to draw a lady’s carriage, and a dray-horse; and it would therefore be necessary to inquire what was the kind of horse which was the subject of the warranty (b). Where a guarantee is Turner v. Evans, 2 E. & B. 515; Graves v. Legg, 9 Ex. 642; Lewis v. G. W. R. Co., 3 QBD. 202, per Bramwell LJ.; Re De Rosaz, 2 PD. 66 ; Whitfield v. Langdale, 1 Ch. D. 61; Hill v. Crook, LR. 6 HL, 283. (a) Hudson v, Ede, LR, 3 QB. 412; and see Behn »v. Bur- ness, 3 B, & 8. 751, 32 LJ. QB. 207. (6) See the judgment of Black- burn J. in Burgess v. Wickham, 3B. & 8, 698, 33 LJ. Q.B. 28; Digitized by Microsoft® 30 INTERPRETATION OF STATUTES, worded in language equally applicable to a past and to a future credit, evidence of the state of the dealings of the parties at the time, would be necessary in order. to determine which was their real meaning (a). So, in the interpretation of statutes, the interpreter, in order to understand the subject-matter and the scope and object of the enactment, must, in Coke’s words, ascertain what was the mischief or defect for which the law had not provided; that is, he must call to his aid all those external or historical’ facts which are necessary for this purpose, and which led to the enactment (b), and for these he may consult contemporary or other authentic works and writings. In his celebrated judgment in the Alabama arbitra- tion, Cockburn, C. J., showed, by a reference to their history, that both the American and English Foreign Enlistment Acts of the early part of the present century were intended, not to prevent the sale of armed ships to belligerents, but to prevent American and English citizens from manning privateers against belligerents(c). The 5 Geo. 4, c, 118, for the abolition Clapham v. Langton, 5 B. & S. 729, 34 LJ. QB. 46. (a) Goldshede ». Swan, 2 Ex. 154; Wood »w Priestner, LR. 2 Ex. 66. See other examples in Larker v. Hordern, 1 Ch. D. 644; Re Wolverton Estates, LR. 7 Ch. D, 197, 47 LJ. Ch. 127; Charter v, Charter, LR. 7 AL. 364. (6) Gorham » Bishop of Exeter, Rep. by Moore, p. 462; see per Bramwell, B., in At- torney-General v. Sillem, 2 H.& C. 531. é (c) Supplement to the Lon- Digitized by Microsoft® EXTERNAL CIRCUMSTANCES. 31 of the slave trade, was construed to extend to offences committed by British subjects out of the. British dominions, that is, on the West Coast of Africa, by the light of the notorious fact that the crime against which the Act was directed, was mainly, if not exclusively committed there(a): though it may, perhaps, not have extended to our subjects in other parts of the. world beyond our territories(b). An ordinance of the colony of Hong Kong, which authorized the extradition of Chinese subjects to the government of China, when charged with “any crime or offence against the law of China,” was construed, either by reference to the cir- cumstances 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(c). An Act which authorized “the Court” 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 in- dictments were rarely tried by the Court in which they were, in the strict sense of the word, “ preferred ” (d). don Gazette, 20 Sept., 1872, 8CB.NS. 861. p. 4135. (c) Attorney-General v, Kwok (az) R. v Zulueta, 1 Car. & Ah Sing. LR. 5 PC. 179, 197. K. 215. (d) R. » Pembridge, 3 QB. (6) Per Bramwell B, in San- 901, tos uv Ilidge, 29 LJ. CP, 348, Digitized by Microsoft® 82 INTERPRETATION OF STATUTES. 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 (a). Reference has been gccasionally made to what the framers of the Act, or individual members of the ‘Legislature intended to do by the enactment, or under- stood it to have done. Chief Justice Hengham said that he knew better than counsel the meaning of the 2d Westminster, as he had drawn up that statute (0). Lord Nottingham claimed that he had some reason to know the meaning of the Statute of Frauds, because, he said, it had had its first rise from him, he having brought it into the House of Lords(c). Lord Kenyon supported his construction of the statute 9 Anne, c. 20, by the argument that so accurate a lawyer as Mr. Justice Powell, who had drawn it, never would have used several words where one sufficed (d). In determining the meaning of the rubric on vestments in the prayer-book (enacted by the Uniformity Act, 13 & 14 (a) Semble ; see the dictum p, xxxi. of Jessel MR. in Holme »v. Guy, (c) See Ashv. Abdy, 3 Swanst. 5 Ch. D. 905, 664. (b) Year Book of 33 Ed. 1, (d) RB. v, Wallis, 5 TR. 379. Digitized by Microsoft® EXTERNAL CIRCUMSTANCES, 33 Car. 2, c. 4), the Privy Council, in one Ecclesiastical case, referred to the introduction of a proviso by the Lords in that Act, and its rejection by the Commons, and to the reasons assigned by the latter, in the conference which ensued, for the rejection, as an in- dication of the intention of the Legislature(a); and in another, to a discussion between the bishops who framed or revised the rubric and the Presbyterian divines at the Savoy Conference in 1662, as showing the meaning attached to it by the former (b). Lord West- bury, when Chancellor, referred to a speech made by himself, as Attorney-General, in the House of Commons, in 1860, in introducing the Bankruptcy Bill, which was passed into law in the following year ; and one of his reasons in favour of the construction which he put on the Act was that it tallied best with the intention which the Legislature might be presumed to have adopted, as it was the ground on which application had been made to it. But he observed, at the same time, that he had endeavoured, in forming his opinion, to divest his mind, as far as possible, of all impressions received from the past, and to consider the language of the Act as if it had been presented to him for the first time in the case before him(c). The reports furnish other instances (d). But it is unquestionably (a) Hebbert v. Purchas, LR. (c) Re Mew, 31 LJ. Bey. 89. 3 CP. 648. _ (ad) Ex. gr. per Hale, C.B. in (b) Ridsdale x, Clifton 2 PD, Hedworth v. Jackson, Hard. 3223, 318; McMaster » Lomax 2 D Digitized by Microsoft® 34, INTERPRETATION OF STATUTES. a rule that what may be called the parliamentary. history of an enactment is not admissible to explain its meaning (a). Its language can be regarded only as the language of the three states of the realm, and’ the meaning attached to it by its framers or by mem- bers of either house of parliament cannot control the construction of it (b). Indeed, the inference to be drawn from comparing the language of the Act with the declared intention of its framers would be that the difference between the two was not accidental but inten- tional (c). Accordingly, the Dower Act of 3 & 4 Will. 4 was construed to apply to gavelkind lands, although this was avowedly contrary to the intention of the real property commissioners who prepated that Act; for they stated in their report that it was their intention that it should not extend to lands of that tenure (d). Sir Francis Moor, who drew the Statute of Charit- able Uses, 43 Eliz. c. 4, says, in his reading on it, that a gift of lands to maintain a chaplain or minister for divine service, or to maintain schools for catechising, Myl. & K. 32; Mounsey »% QB. 34. Per Pollock C. B. Imray, 34 LJ. Ex. 56,3 H. & C. 486; Drummond vw. Drum- mond, LR. 2 Ch. 45; Hudson v. Tooth, 3 QB. D. 46, 47 LJ. 24. (a) See ex. gr. per Cur. in R. v. Hertford College, 3 QBD. 707; per Pollock O.B. in Atty.- Gen. v. Sillem, 2H. & ©. 521, and per Bramwell B. 537. (b) Dean of York’s Case, 1 and Parke B. in Martin v. Hem- ming, 10 Ex. 476, 24 LJ. Ex. 5; Cameron v. Cameron, 2 M. & K. 289; Hemstead v Phoonix Gas Co. 3H. & C. 745, 34 Ld. Ex. 108. (c) Per Tindal, C.J. in Sal- keld v. Johnson, 2 CB. 757. (d) Farley v. Bonham, 2 Johns. & H. 177, 30 LJ. Ch, 239. Digitized by Microsoft® THE CONTEXT. 35 was not within its meaning, having been intentionally omitted, lest they should be confiscated ; since religion, being variable according to the pleasure of succeeding princes, that which was orthodox at one time might be superstitious at another, and so be forfeited (a) ; but such devises were nevertheless afterwards held to fall within the Act (6). So, what took place before the committee cannot be invoked for putting a con- struction on a private Act (c). 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 (d). SECTION IV.—THE CONTEXT—-EARLIER AND LATER ACTS—ANALOGOUS ACTS. 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 (e). Incivile est, nisi tota lege (a) Duke, Char. Uses, 131. (d) See ex. gr. R. v. Leverson, (b) Id. 134, Penstredv. Payer, LR., 4 QB. 394, and other cases Id. 381 ; Grieves v.Case,4 Bro. referred to inf. Chap. XI, 8. 1. C. C. 67. (e) Co. Litt. 38la; Lincoln (c) Steele v. Midland R. Co, College Case, 3 Rep. 59b. LR. 1 Ch. 282. pa Digitized by Microsoft® 36 INTERPRETATION OF STATUTES. perspecta, una aliqua particula ejus proposita, judicare vel respondere(a). Such a survey is always indispens- able, even when the words are the plainest ; for the true meaning of any passage is that which best harmonises with the subject, and 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 (b). The second section of Lord Tenterden’s Prescription Act, 2 & 3 Will. 4, c, 71, in protecting “any right of common” from dis- turbance after certain periods of enjoyment, uses an expression which unambiguously includes all rights of common, that is, those in gross as well as those ap- purtenant. But the fifth section, which, in providing a form of pleading to be applicable to all rights within the Act, gives a form which could, from its nature, be applicable only to rights appurtenant, shows that the wide expression in the earlier section was used in the restricted sense of a right of common appurtenant (c). So, in the Dower Act, of 3 & 4 Will. 4, c. 105, the word “land,” which it defines as including manors, (a) Dig. 1, 3, 34. ingale, 8 QB. 1034. (b) 43 & 44 Vict. c. 42; 2 W. (c) Shuttleworth v Le Flem- _ & M.c. 5; Moyle wv. Jenkins, 51 ing, 19 CB. NS. 687, 34 LW. LJ. QB. 112; Wilson v Night- CP, 309. Digitized by Microsoft® THE CONTEXT. 37 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 declara- tion to that effect, showed that only lands which were transferable by deed were within the contemplation of the Legislature (a). Where 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 (6). So, where one section of the 25 & 26 Vict. c. 102, (a) Smith v, Adams, 5 DeG. Doe v, Waterton, 3 B. & A. M. & G. 712, 24 LJ. Ch. 258; 149. : Powdrell v, Jones, 2Sm, & G. (6) Thompson v Farrer, 407, 24 LJ. Ch. 123, Com .QBD. 372. Digitized by Microsoft® 38 1 INTERPRETATION OF STATUTES. 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 com- pensation ; and the next enacted that under certain circumstances “no building” should be erected in any street, without the consent of the Board, beyond the general line; the latter section, which, per se, would have included alterations, whether on new sites or old, was confined by the former to buildings erected on land which had been hitherto vacant (a). Where one section of an Act imposed a penaliy for selling “as unadulterated” 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 different wording of the two sections showed that under the former the seller would be liable though he was ignorant of the adulteration (b). A provision in an enclosure Act which reserved to the lord his right ‘to minerals, and to work them as fully as if the Act had not been passed, and without paying com- pensation, is materially limited by a direction that (a) Lord Auckland » West- patrick v. Kelly, LR. 8 QB, 337. minster Board of Works, LR. 7 See also Core v. James, LR. 7 Ch. 597. See Doe» Olley,12 QB. 135; and Roberts v. Egerton, A. & E. 481. LR. 9 QB. 494. (6) 23 & 24 Viet. c. 84; Fitz- Digitized by Microsoft® THE CONTEXT. 39 “highways should be set out over the land ;” for this latter provision would preclude him from working the minerals under the highways without leaving adequate support(a). 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 execu- tion 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 proceeded with against the company, except with the leave of the Court, that its true meaning and effect is only to invalidate the proceedings which it pronounces void, when the Court does not sanction them (b). 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 can- didates, and the constables on duty, was found to include also the candidates themselves in the excep- tion, since a subsequent clause provides that a can- didate may be present at any place at which his agent may attend (c). In all these instances, the Legislature supplied in the context the key to the meaning in which it used expressions which seemed free from (a) Benfieldside Local Board Co., LR. 2 Eq. 53. v, Consett Iron Co., 3 Ex. D. (c) 35 & 36 Vict. c. 33, 8. 9, 54, 47 LJ. 49. cl. 21 & 515; Clementson » (0) Re The London Cotton Mason, LR. 10 CP. 209. Digitized by Microsoft® 40 INTERPRETATION OF STATUTES, doubt ; and that meaning, it is obvious, was not that which literally or primarily belonged to them. _ It has been observed, however, 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). Where there are earlier Acts relating to the same ‘subject, the survey must extend to them; for all are, for the purposes of construction, considered as forming one homogeneous and consistent body of law (6), and each of them may explain and elucidate every other ‘part of the common system to which it belongs. For instance, a bye-law which authorised the election of “any person” to be Chamberlain of the City of London would be construed so as to harmonise, and not to conflict, with an earlier one which limited the appointment to persons possessed of a certain qualifi- cation, and “any person” would be understood. to mean only any eligible person (c). Where a question arose as to whether the Admiralty Court Act, 24 Vict. ec. 10, which gives that Court jurisdiction over any claim for “damage” done by any ship, included in- (a) Per Turner LJ. in Copev. »v, Adams, 1 Macq. HL. 176, per Doherty, 4K.&J.367,27LJ.600. Lord Truro. (b) R. v. Loxdale, 1 Burr. 44, (c) Tobacco Pipe Makers 0 per Lord Mansfield; Duck » Woodroffe, 7 B. & C, 838, over- Addington, 4 TR. 447 ; Palmer’s ruling Oxford », Wildgoose, 3 Case, 1 Leach, 393 ; McWilliam Lev, 293. . Digitized by Microsoft® REFERENCE TO EARLIER ACTS. 41 juries done 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 injuries to the person (a). So, the expression “possession” in the 26th 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 the 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 statute was held to be in possession of it, within the meaning of the Reform Act, from the date of the execution of the deed (b); though a grantee under a common law conveyance would not be in possession within the same Act, until he had received a payment of the rent-charge (c). The Reform Act of 1867, 30 & 31 Vict. c. 102, which requires, as a qualifica- tion, that the voter shall have paid all poor rates (a) Smith v Brown, LR. 6 NS, 90, 34 LJ. CP. 88; Had- QB. 729. But see the judg- field’s Case, LR, 8 CP. 306, ment of Baggallay, L.J.,in The (c) Murray v Thorniley, 2 Franconia, 2 PD. 174, et seqq. CB. 217; Orme’s Case, LR. 8 (8) Heelis v, Brown, 18 CB. OP, 281. Digitized by Microsoft® 42 INTERPRETATION OF STATUTES, which have become payable by him up to the preced- ing 5th of January, was construed by the light of the earlier enactments on the same subject, as confined to rates made after the 5th of January of the preceding, and payable up to 5th of January of the qualifying year (a). The 12 & 13 Vict. c. 106, s, 113, which directs the discharge of a bankrupt who has been arrested for debt in coming to surrender, on pro- duction of the order of protection, and imposes a penalty on “any officer” who “detains” him, was construed by reference to the 5 Geo. 2, ¢. 3, 5. 5, which imposes a penalty on the officer who arrests a bankrupt under such circumstances, as applying only to the officer who makes the arrest, but not to the jailor who detains him (0). Not only is the later Act construed by the light of the earlier, but it sometimes furnishes a legislative interpretation of the earlier. Thus chapter 23 of Magna Charta, which provides that “all weirs shall “be put down through Thames and Medway, and “through all England, except by the sea-coast,” was held to apply only to navigable rivers, because the 25 Ed. 3 and other subsequent statutes spoke of it as having been passed to prevent obstruction to naviga- tion (c). To determine the meaning of the word (a) Cull v, Austin, LR. 7 CP. (c) 25 Ed. 3, stat, 4, ©. 43 227. Rolle v. Whyte, LR. 3 QB. 286; (b)Myers v Veitch, LR. 4 Callis on Sewers, 258, QB. 349. Digitized by Microsoft® REFERENCE TO LATER ACTS. 43 “broker,” in the 6 Anne, c. 16, the Bubble Act (6 Geo. 1,¢. 18), passed twelve years later, was referred to, where the same term was used(a). In section 299 of the Merchant Shipping Act of 1854, 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 (b). But where one Act (1 & 2 Vict. c. 110, s. 18) 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. 60) 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 ap- pearing 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 (c). (a) Clarke v. Powell, 4 B. & Willes, J. Ad, 846 ; Smith ». Lindo, 4 CB. (c) Re Frankland, LR. 8 QB. NS. 395, 27 LJ. CP. 196, 335. 18; Best » Pembroke, LR. 8 (6) Grill » The Screw Col- QB. 363. lier Co., LR. 1 CP. 611, per Digitized by Microsoft® 44 INTERPRETATION OF STATUTES. ‘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 (a). The language and provisions of expired and repealed Acts on the same subject, and the construction which they have authoritatively received, are also to be taken into consideration ; for it is presumed that the Legislature uses the same language in the same sense, when dealing at different times with the same subject, and also that any change of language is some indication of a change of intention (0). Thus, the 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 bank- rupt’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 (c). 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 (a) Re Andrew, 1 Ch. D. OB. NS. 94,27 LJ. OP. 286; 358. see also Exp. Copeland, 2 De G. (b) See Chap. XI. s. 3. M. & G. 914, 22 LJ. Bey. 17. (c) Goldstnid v. Hampton, 5 Digitized by Microsoft® REFERENCE TO REPEALED ACTS. 45 counties or places, and sometimes out of the king- dom,” 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 (a). Where a repealed Act imposed a penalty on the owner of cattle found lying on a highway “ without a keeper,” and the same pro- vision was re-enacted without the last words, the omission was construed as obviously showing the inten- tion that the presence of a keeper should no longer absolve the owner from liability (6). Where a part of an Act has been repealed, it must, although not of operative force, still be taken into consideration in construing the rest. If, for instance, an Act which imposed a duty on race- horses, cabhorses, and all other horses were re- pealed as regards racehorses, the remaining words would still obviously include them, if the enact- ment were read as if the repealed words had never formed a part of it (c). Where a statute imposed a duty on artificial mineral waters 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 (a) Cambridge Union v. Parr, Dearsl. 626; Exp. Gorely, 34 10 CB. NS. 991, 30 LJ. MC. LJ. Bey. 1. 241, per Byles, J. (c) Per Bramwell, LJ., - in (b) 27 & 28 Vict. c. 101,8 Atty.-Gen. » Lamplough, 3 Ex. 25; Lawrence v King, LR. 3D, 214, 47 LJ. 555. QL. 345 ; see'also R. v Moah, Digitized by Microsoft® 46 INTERPRETATION OF STATUTES. whether what still subsisted of the Act, though wide enough to include artificial waters, was intended to include them (a). 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. Thus, the Insolvent Act, 1 & 2 Vict. c. 110, s. 37, which vested in the provisional assignee all the in- solvent’s debts which became due to him before his discharge, received the same construction as a similar provision in the Bankrupt Act of 6 Geo. 4 (b). 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 “by the party charge- ‘‘able thereby,” was held not to include an acknow- ledgment 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 (c). So the County Court Act of 1867, which gives jurisdiction in ejectment when the value of the tenement does not exceed twenty pounds, was construed, as regards the measure of value, by reference to the Parliamentary Assessment Act (d). (a) Atty.-Genl. x. Lamplough, bert v. Sayer, 5 QB. 965. ubi sup. ; (c) Hyde v. Johnson, 2 Bing. (6) Jackson 2 Burnham, 8 NC. 776, Ex. 173, 22 LJ. Ex. 63; Her- (d) 31 & 32 Vict. c. 142, s. Digitized by Microsoft® CONFINED TO ANALOGOUS ACTS. 47 That which was held a sufficient signature to a will or contract under the Statute of Frauds (a) was held sufficient under the Bankrupt Act, 6 Geo. 4, ¢ 16, s. 131 (>), under the Statute of Limitations (c), and under the Registration of Voters Act (d). But where the Acts are not in pari materia, it is fallacious to take the construction which has been put upon one as a guide to the construction of another (e). For instance, the meaning put on the word “ goods” 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 (f). For the same reason, the Parochial Assessment 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 under the Reform Act of 1832 (g). Because Chambers are “a house” for the purposes of assessment 11;- Elston »v. Rose, LR. 4 (d) 6&7 Vict.c 18,s. 17; QB. 4. Bennett v. Brunfitt, LR. 3 CP. (a) Lemane»v. Stanley, 3 Lev. 28. 1; Knight v. Crockford, 1 Exp. (e) Dewhurst » Fielden, 7 190; Herbert v. Treherne,3 M. M.& Gr. 187, per Maule, J. ; & Gr. 343. Eyre v. Waller, 5 H. & N. 460, (6) Ogilvy v. Foljambe, 3 Mer. 29 LJ. 247, per Wilde B. 53; Kirkpatrick » Tattersall, (f) Humble »v. Mitchell, 11 13 M. & W. 766. A. & E. 205. (c) Lobb v. Stanley, 5 QB. (g) 2 Wm. 4, « 45, 8. 27; 574, per Patteson, J. Colvill v. Wood, 2’CB. 210. Digitized by Microsoft® 48 INTERPRETATION OF STATUTES. to a poor rate under the 43 Eliz. c. 2 (a), of gaining a settlement under the 6 Geo. 4, c. 57 (6), of qualifying for a vote under the Reform Act of 1832 (c), and also as a place in which a burglary might be committed (d), it did not follow that the same meaning was to be given to the expression in the 48 Geo. 3, c. 55, which imposed a duty on “inhabited houses” (e), 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 (/). 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 ; and are not inserted by the Legislature as part of a general scheme of legislation, but are simply introduced at the request of the parties concerned. Ifthe general provisions of such Acts were to override such special clauses, those in whose favour the latter are inserted would have a just claim to be (a) R. v. St. George’s Union, 473. LR. 7 QB. 90. (e) Atty.-Gen. v, Westminster (6) R. v Ushworth, 5 A. & Chambers Assoc., 1 Ex. D. 469. E. 261. See also R. v. Oxford (V. C.), (c) Henrette v. Booth, 15 LR. 7 QB. 471, ; CB. NS..50, 33 LJ. 6. (f) Williams v. Ellis, 5 QBD. (2) Evans’ Case, Cro. Car. 175. Digitized by Microsoft® THE TITLE, 49 heard in Committee on every clause of the Act, which would make it impossible to conduct any private legis- lation (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). SECTION V.—THE TITLE—THE PREAMBLE—MARGINAL NOTES—-SCHEDULE. Originally, Bills in Parliament were mere petitions to the King. They were entered on the Rolls of Parliament, with the King’s answer; and at the end. of the session, the Judges drew up these records into statutes to which they gave a title (c). In the execution of their task, they occasionally made additions, omis- sions, and alterations; but the practice ceased in the reign of Henry V1, when bills in the form of Statutes without titles were introduced (d). The title was first added about the eleventh year of Henry VIL. (ec). In the House of Lords the title now appears to be treated as a part of the Bill. In the Commons, it is not read three times, like the bill; but it is amended (a) Per Jesse] M.R. in Taylor (c) Co. Litt. 272a, v. Oldham, 4 Ch. D. 410. (d) Per Lord Macclesfield, se (6) Per Lord Cairns in East defendendo, 16 St. Tr. 1389. London R. Co. v. Whitechurch, May, Parlmy. Pr. Ch, 18. LR. 7 HL. 89. (e) Barrington Obs. Stat. 403. Ez Digitized by Microsoft® 50 INTERPRETATION OF STATUTES. in committee, if the amendments made in the bill require it ; and it may be, and often is, again amended when, after the bill has been passed, the Speaker puts the final question, “that this be the title” (a). Although the title of a statute is thus recognised and attached to it by Parliament, it has long been established by numerous judicial decisions or dicta, from Lord Coke’s to the present time, that it is nota 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.” (b) “ The title, though it has occasionally been referred to as aiding in the con- struction 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” (c). And Lord (a) May, Parlmy. Pr., see pp. 501, 506, 519, 521, ed. 1873, (b) Hunter » Nockolds, 1 MeN. & Gord, 651. (c) Per Cur. in Salkeld ». Johnson, 2 Ex. 283, citing Lord Coke in Powlter’s Case, 11 Rep. 33b ; Lord Holt in Mills Wilkins, 6 Mod. 62 ; Lord Hard- wicke in Atty.-Genl. ». Wey- mouth, Ambl. 22; Lord Mans- field in R, v Williams, 1 W. BI. 95. See also Chance », Adams, 1 Lord Raym. 77; and per Byles J. in Shrewsbury v, Scott, 6 CB. NS. 1, 29 LJ. CP. 34; per Lord St. Leonards in Jef: freys v. Boosey, 4 HL, 982, 24 LJ. Ex. 109; per Grove J. in Morant v, Taylor, 1 Ex. D. 194; and the American case, Hadden v The Collector, 5 Wallace, 110. Digitized by Microsoft® MARGINAL NOTES. ~ a1 Denman remarked that the Court had often laid that down (a). The rule has not, indeed, been invariably ob- served (b) ; for the mind, when labouring to discover the design of the Legislature, natually seizes on every- thing from which aid can be derived (c). It has even been occasionally asserted that its title was part of a Statute, and was not to be disregarded in constru- ing it (d). But it does not seem that on those occasions, attention was directed to the established rule. Formerly, the bill was, at one of its stages, engrossed without punctuation on parchment (¢); but as neither the marginal notes nor the punctuation appeared on the roll, they formed no parts of the Act (f). This practice was discontinued in 1849, since which time (2) RB. v Wilcock, 7 QB. 329. ; (b) See ex. gr. R. v, Wright, 1 A. & E. 446; Alexander v. Newman, 2 CB. 141; Taylor ». Newman, 4 Best & 8. 93, 32 LJ. 189; Rawley w Rawley, 1 QBD. 466; Bentley v. Roth- eram, 4 Ch. D. 588. () Pe Cur. in U. S 4 Fisher, 2 Cranch, 386; U.S. v. Palmer, 3 Wheat. 631. (d) See Brett v. Brett, 3 Addams, Ec. 217; Hinton v. Dibben, 2 QB. 663, per Cur. ; Wilmot v. Rose, 3 E. & B. 576, 23 LJ. 281, per Lord Campbell ; Free v, Burgoyne, 2 Bligh NS. 78; Blake v. Midland R., 18 QB. 109; Johnson v. Upham, 2 E. & E. 263; Allkins v. Jupe, 2 CPD. 383; and Coomber ». Berks, 9 QBD. 26. (ec) 1 Bl. Com. 183. (f) Barrington Obs. on Stat. 394; see Barrow v. Wadkin, 24 Beay. 327; and the judg- ment of Maule J. in R. ». Old- ham, 21 LJ. MC. 134, 2 Den. 473. E2 Digitized by Microsoft® 52 INTERPRETATION OF STATUTES. the record of the statutes is a copy printed on vellum by the Queen’s printer (a); and both marginal notes and punctuation now appear on the rolls of Parliament. © But whether they are now to be taken as parts of the statute is a question which has been raised but not decided (6). . The indorsement by the Clerk of the Parliaments of the date of the passing of the Act is part of it since 1793 (c). 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; 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 (d). ‘Thus, in the 26 Geo. 3, ¢ 107, 8 3, (a) May Parl. P. Ch. 18. (c) 33 Geo. 3, c. 13. (b) Semble that they are not ; (d) Bac. Ab. Stat. I. 2; Co per Willes J. in Claydon v Litt. 79a, 4 Inst. 330, Plowd. Green, LR. 3 CP. 521, and per 369; Halton v Cove, 1 B. & James LJ. in Atty.-Genl.v G Ad. 558; Beard ». Rowan, 9 E. R. Co, 11 Ch. D. 465; Peters, 317; The People » contra, per Jessel M.R. in Re Utica Insurance Co., 15 Johns. Venour, 2 Ch. D. 525; andsee N. Y. Rep. 389. R. v. Milverton, 5 A. & E. 841. Digitized by Microsoft® THE PREAMBLE. 53 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 militia- man” should be removeable from the town until.he became chargeable,—it being open to doubt whether this expression included all married militiamen, or 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 setting up in trade in corporate towns (a). So, as an Act which authorized aliens who “ shall “have been resident” in the country for two years, to hold land, 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 deter- mine which of the two meanings was the most agree- able to the policy and object of the 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 (b). ‘The 137th section of the Bankrupt Act of (a) R. v. Gwenop, 3 TR, 133. (0) Beard v, Rowan, 9 Peters, : 301, i Digitized by Microsoft® 54 INTERPRETATION OF STATUTES, 1849, which enacted that a judge’s order to sign judg- ment, 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 transac- “tions with the bankrupt”(a). A wider construction, it may be added, would have had the unjust effect of enabling the trader who had 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 (b). The 18th sect. of the 12 & 13 Vict. ce. 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 expedient that the law should be -made uniform in cases of appeal, showed the limited scope of the Act(c). So, the 11 & 12 Vict. c. 44, enacting that in all cases where justices refused to do “any act” relating to the duties of their office, a rule might issue to show cause why they should not do it, was limited to such acts as exposed justices to an action ; the preamble showing that the object of the statute was to protect justices in the performance of their duties by. referring the legality of the proposed act to the Superior Courts, and therefore did not apply toa (a) Bryan». Child, 5 Ex. 368, (c) R. v. Bateman, 8 E. & B. 1L.M. & P. 429. 584, 27 LJ. 95. (6) See Chap. 8, s. 3, Digitized by Microsoft® EXPLAINS WHAT IS DOUBTFUL. 55 mere refusal to issue a summons(a). Under a statute which enacted that when a person came into the occu- pation 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 occupa- tion ; 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 equit- able 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 (b). An Act which made it penal for a publican to allow bad char- acters 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 ; (a) R.v. Percy, LR. 9 QB. 64. pealed by 32 & 33 Vict. c. 41, See R.v. Aston, 1 L. M. & P. 8s, 16; Edwards », Rusholme, 492. LR, 4 QB, 554. (b) 17 Geo, 2,c. 38, s. 12, re- Digitized by Microsoft® 56 INTERPRETATION OF STATUTES, 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 (a). In the 25 Geo. 2, c. 6, which recited in the preamble a doubt as to who were legal witnesses to a will of land, and enacted that legatees and devisees who attested “any will” should be good witnesses, but that the bequests and devises to them should be void, the enacting part was limited by the preamble to wills of land. Wills of personalty, 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 doubtful whether the Legislature had used the expression “any will” in ite full and unrestricted meaning, the preamble was legitimately invoked to determine the scope of the enactment (0). But the preamble 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(c). It is not unusual to find that the (a) 23 Vict. c. 27, s, 32; Brett, 3 Addams, 219, See Greig v. Bendeno, E. B. & E. other instances in Wethered ». 133, 27 LJ. MC. 294. See Calcutt, 5 Scott, NR. 409; Doe Belasco v. Hannant, 3 Best & 8. v Roe, 1 Dowl. 547; Carr ». 13, 31 LJ. MC. 225, Royal Exchange Ass. Co, 5 (6) Emanuel v. Constable, 3 Best & 8. 941, 31 LJ. QB. 93; Russ. 526, overruling Lees v. Re Masters, 33 LJ. QB. 146. Summergill, 17 Ves. 508 ; Brett (c) 4 Inst, 393, per Lord Digitized by Microsoft® DOES NOT AFFECT WHAT IS PLAIN. 57 enacting part is not exactly co-extensive with the preamble. In many Acts of Parliament, although a particular mischief is recited, the legislative provisions 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 Statute (a). The evil recited is but the motive for legislation; the remedy may both consistently and wisely be extended beyond the cure of that evil (0) ; and if on a 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 preamble referred only to heiresses and other girls with fortunes (d). So, the 13 Eliz. c. 10, which makes void all leases, gifts, grants and conveyances of estates, made by any Mansfield in Patteson v. Banks, Cowp. 543, and Perkins. Sewell, 1 W. Bi. 659; per Dampier J. in Trueman v. Lambert, 4 M. & S. 239; Wright v Nuttall, 10 B. & C. 492 ; Crespigny v. Witte- noom, 4 TR. 793, per Buller J. ; Salter’s Co, v. Jay, 3 QB. 109; Wilmot v. Rose; 3 E. & B. 563 ; Copland v. Davies, LR. 5 HL. 358; Bentley v, Rotheram, 4 Ch. D. 588, (a) Per Fortescue J. in R. v. Athos, 8 Mod, 144. (0) Per Lord Denman, in Fellowes v, Clay, 4 QB. 349. (c) Per Lord Tenterden, in Doe v. Brandling, 7 B. & C. 660; and see Copeman v, Gallant, 1 P. Wms. 320. (d) Co, Litt. 88 b.n, 14, Digitized by Microsoft® 58 INTERPRETATION OF STATUTES. dean and chapter, or master of an hospital, of any hereditaments, parcel of the possessions of the cathe- dral 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 eccle- siastical persons, endowed of ancient palaces, man- sions, 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(a). 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 property, 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(b). It has been more than once decided that the preamble of the 37 Geo. 3, c. 123, which refers only to the mischiefs consequent on inciting men to sedition and mutiny, and on administering to them oaths with this object, did not restrict the enacting part of the statute, which made it felony to administer oaths not only with a (a) York v. Middlesborough, (0) Gough v, Davies, 2K. & 2 Y.& J. 196, 214. J. 623, 25 LJ. 677. Digitized by Microsoft® DOES NOT AFFECT WHAT IS PLAIN. 59 view to mutinous or seditious purposes, but also with a view to disturb the peace, or to be a member of any association for any such purpose, or not to reveal any unlawful combination or illegal act ; but that the latter words included offences foreign to politics and military discipline, such as the administration of oaths to poachers not to betray their companions, and to work- meni similarly binding them to secrecy as members of. an association for raising wages by a strike, or for not working under certain prices(a). So the preamble of the 14 Geo. 3, c..78, which declared that an earlier Act for the regulation of buildings and the prevention of fire in the cities of London and Westminster had been found inefficacious, and that it would tend to the safety of the inhabitants of those cities if other regula- tions were established, was not suffered to restrict to the metropolis the 83rd section of that Act, which enacted in general terms that in order to deter per- sons from wilfully setting fire to their houses, with a view to gain to themselves the insurance money, the directors of insurance offices should, in suspicious cases, lay out the insurance money in re-instating the damaged buildings (b). This construction, however, was further justified by the circumstance that the section in question was a re-enactment of a similar (a) R. v. Brodribb, 6 C. & P. (b) Exp. Gorely, 4 De G. J. 571; R.v. Marks, 3 East, 157; & S. 477, 34 LJ. Bkey. 1, per R. v. Loveless, 1 M. & Rob. Lord Westbury. See also Owen 349; RB. v. Ball, 6 C, & P. 563. »v, Burnett, 2 Cr. & M. 353. Digitized by Microsoft® 60 INTERPRETATION OF STATUTES. provision in the earlier and repealed Act, with the significant omission of the words “within the limits aforesaid,” which words remained in most of the other sections of the later Act. The 11th section of the 21 Jac. 1, c. 19, which empowered bankruptcy com- missioners to dispose of goods which were in the possession of the bankrupt, as reputed owner, with the .real owner’s consent, was prefaced by a preamble which recited the mischief of bankrupts “ secretly conveying” their goods to other persons, and yet remaining in the reputed ownership of them; but the enactment was not confined to this particular form of the mis- chief (a). 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 offence 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 (b). So, the preamble of the 22 Geo. 3, « 75 (c), which recited the mischief of granting colonial (a) Mace v, Cadell, Cowp. (b) R, vw. Pierce, 3 M. &S. 62. 232, . (c) Commonly attributed to Digitized by Microsoft® DOES NOT AFFECT WHAT IS PLAIN. 61 offices to persons who remained in England, and dis- charged the duties of their oftices by deputy, was not suffered to exclude judicial 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 office was not there in con- templation (a). The 2 & 3 W. 4, c 100, which after reciting that the expense and inconvenience of suits for the reco- very 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 exemp- tion 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 Burke, but really an Act of Lord (a) Willis » Gipps, 5 Moo. Shelburne’s; see Shelb. Life, P. C. 379, see p. 388, 337, Digitized by Microsoft® 62 INTERPRETATION OF STATUTES. was held by some of the judges (a), that the enactment was confined to claims of this kind ; and the preamble was invoked in support of this view. But it was con- sidered by others (b), and finally decided (c), 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 (d) ; while the preamble, which one side un- derstood as meaning that the expense and inconvenience of the same kind of suits as before ought to be pre- vented, was thought on the other to mean that expen- sive and inconvenient suits ought to be prevented in all cases; and that this was best effected by giving the more easy method of establishing exemptions by simple proof of non-payment for a certain time (e). 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. 14,5. 3(f), which gave creditors an action of “ debt” (a) Wigram V.C., Tindal Salkeld v. Johnson, 1 Mac. & G. C.J., Cresswell J., Patteson J., 264. and Coleridge J. (e) See Salkeld v. Johnson, 1 (6) Lord Denman, Williams, Hare, 196, 1 Mac. & G. 242, Coltman, Erle JJ., Pollock C.B., Fellowes v. Clay, 4 QB. 313. Parke, Alderson, and Platt BB. (f) Amended by 1 W, 4, (c) By Lord Cottenham. c. 47, 8. 3, (d) Per Lord Cottenham, in Digitized by Microsoft® DOES NOT AFFECT WHAT IS PLAIN. 63 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” (a); though the preamble recited that it was not just that by the contrivance of debtors their creditors should be de- frauded of their debts, but that it had often happened that after binding themselves by bonds “and other “specialties ” 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 (b). 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 re- pression (c). An Act which required the trustees of a turnpike trust to apply the monies which they received, first, in paying “any interest which might from time “to time be owing,” next, in keeping the road in repair, and ‘finally, in paying off the principal sums due by the trust, was held not to authorise the pay- ment of arrears of interest ; although this enactment (a) Wilson v Knubley, 7 (6) Per Lord Ellenborough, East, 128; Farley »% Bryant, 3 7 Hast, 135. A. & E, 839; Jenkins v. Briant, (c) Francis v. Maas,3 QBD. 6 Sim. 630; Morse v, Tucker, 341. 5 Hare, 79. Digitized by Microsoft® 64 INTERPRETATION OF STATUTES. was prefaced by a preamble which recited that arrears of interest as well as principal sums were due by the trust, and could not be paid off unless 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 rate- payers of one year a burden properly belonging to those of another (0). 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 (d) See ex. gr., per Parker C. B. and Lord Hardwicke in Ryall v Rolle, 174, 182. (e) R. » Gwenop, 3 T. BR 133; R. v Bateman; Edwards v. Rusholme ; Emanuel ». Con- (2) Market Harborough ». Kettering, LR. 8 QB. 308. (b) See Chap. 10, s. 2, inf. (c) R. v, Athos, 8 Mod. 144, Copeman v. Gallant, 1 P. Wms. 320; per Lord Abinger in Walker v. Richardson, 2 M. & W. 889; per Willes J. in Hay- man v. Flewker, 13 CB. NS. 526, 32 LJ. CP. 132 ; per Turner LJ. in Drummond v. Drum- mond, LR. 2 Ch. 44; per Crowder J. in Kearns v. Cord- * wainers’ Co., 6 CB. NS. 388. stable ; Bryan v, Child ; Salkeld v. Johnson, sup. pp. 54, 55, 61. See also per Cur. R. v. Man- chester, 7 E. & B. 453, 26 LJ. MC. 65 ; Hughes »v. Chester R. Co., 1 Dr. & Sm. 524 ; Wigan». Fowler, cited 1 Stark, 459. Digitized by Microsoft® PREAMBLE MAY RESTRICT THE ENACTMENT. 65 a statute which, in general terms, made it felony to alter a bill of exchange, would be restrained to fraudu- lent alterations, by a preamble which recited that it was desirable to suppress cheats and frauds effected by altering bills (a). The function of the preamble is to explain what is ambiguous in the enactment (d), and it may either restrain as well as extend it as best suits the intention. The headings prefixed to sections or set of sections in some modern statutes are regarded as preambles to those sections (c). In a word, then, it is to be taken as a fundamental 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 interpreter, of its wisdom or justice. If the language admits of no doubt or secondary meaning, it is simply to be obeyed, without more. If it admits of more than one construction, the true meaning is to be sought, not on the wide sea of surmise and speculation, but “from such conjectures as are drawn from the words (a) R. vw Bigg, 3 P. Wms. R. Co. v Marriage, 9 HL. 41; 434, arg. Latham v. Lafone, LR. 2 Ex. ‘ (b) ThePeople». Utica Insur. 119; Hammersmith Ry. Co. » Co., 15 Johns. N. Y. Rep. 389. Brand, LR. 4 HL. 171; Lang (c) See ex. gr., Bryan v. Child, ». Kerr, 3 App. 536; Comp. 5 Ex. 368; Shrewsbury v. Broadbent v. Imperial Gas Co., Beasley, 19 CB. NS. 651; E.C. 7DeG.M. &G, 436, ¥ Digitized by Microsoft® 66 INTERPRETATION OF STATUTES. “alone, or something contained in them” (a) ; thatis, 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. (a) Puff. L. N. b. 5, c. 12, s. 2, note by Barbeyrac. Digitized by Microsoft® CHAPTER IL. SECTION I.—WORDS UNDERSTOOD ACCORDING TO THE SUBJECT MATTER. 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). This is evident enough in the simple case of a word which has two totally different meanings. The Act of Ed. IIL, 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). (a) Sup., p. 27. (c) 1 BL Comm. 60 ; Statutes (6) Per Cur. in R. v. Hall, 1 of Provisors or Pramunire B. & C. 1386; Grot.de B. & P. passed in 1343, 1353, 1364, b. 2,8. 16; Puff. L.N. b.5,¢ 1390, and 1401. 12,38, 3. F2 Digitized by Microsoft® 68 INTERPRETATION OF STATUTES. The “ vagabond ” of the Vagrant Act, is not the mere ‘wanderer of strict etymology (a). 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, toa 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 incapacity, but the possession of an estate of inheritance which is capable of disposition by will (b). The Gas Works Consolidation Act, did not, by calling the debt due for gas, “rent,” authorise a distress for the debt under the Bankrupt Act, which regulates the power of distress of a landlord “ or other person to whom ‘rent’ is due” by the bankrupt (c). The Mutiny Acts which exempt soldiers from the payment of tolls over “bridges,” would not carry the exemption to a steam ferry boat, (a) Monck » Hilton, 2Ex.D. 46 LJ. 27. 268. (c) 32 & 33 Vict. c 71, 5 (b) 16 & 17 Vict. c. 51,821; 34; Exp. Hill, 6 Ch. D. 63, 46 Attorney-General v, Hallett, 2 LJ.116. As to “tolls” in rail- H. & N. 368, 27 LJ. 89. See way acts, see the cases collected also R. v. Owen, 15 QB. 476. inthe judgment of Field J. in As to a judgment being “final,” Brown v. G. W. R. Co., 9 QBD. Ridsdale », Clifton, 2 PD. 276, 750. Digitized by Microsoft® WORDS CONSTRUED IN POPULAR SENSE. 69 because it is called a floating bridge (a). The enact- ment which prohibited parish officials from being con- cerned in contracts for supplying goods, materials or provisions “for the use of the workhouse,” meant “ for the use of the persons in the workhouse,” and therefore did not apply to a contract for the supply of materials for the repair of the building (b). This is too plain to need. further illustration. In general, statutes are presumed to use words their popular sense ; uti loquitur vulgus (c). Where, indeed, technical words are used in reference to a technical subject, they are primarily inter- preted in the sense in which they are under- stood in the science, art, or business in which they have acquired it (d); but that meaning is rejected as soon as the judicial mind is satisfied that another is more agreeable to the object and intention (e). Thus, (a) Ward »v Gray, 6 B. & 8. 345. (0) 55 Geo. 3, c. 137, 8. 6; Barber v. Waite, 1 A. &E. 514; Comp. 4 & 5 Wm. 4, c. 76, s. 77. (c) The Fusilier, 34 LJ. PM. & A. 27, per Dr. Lush- ington. (2) Grot. b. 2, c. 16, 8 3; Vattel, b. 2, 8 276; Evans ». Stevens, 4 TR. 462, per Lord Kenyon; Morrall v, Sutton, 1 Phil. 533; Doe v. Jesson, 2 Bligh, 2; Doe v. Harvey, 4 B. & C. 610; Abbot v Middleton, 7 HL. 68, 28 LJ. Ch. 110; The Pacific, 33 LJ. P. M. & A. 120; see per James LJ. in Bouci- cault v. Chatterton, 5 Ch. D. 275. (e) Per Lord Wensleydale in Ready »v, Fitzgerald, 6 HL. 877. See also Towns v. Wentworth, 11 Moo, 543, Digitized by Microsoft® 70 INTERPRETATION OF STATUTES. the 38 Geo..3, c. 5 and c. 60, which exempted - “hospitals” from the land tax, was construed as applying to all establishments popularly known by that designation, and even as extending to an asylum for orphans (a) ; when it appeared more consonant to the object of the Act to give it that wider meaning, than to restrict it to what are alone “ hospitals” in the strict legal sense of the term, that is, eleemosynary in- stitutions in which the persons benefited form a cor- porate body (b). An Act which privileged a bank- rupt from arrest for “debt” was, on the same principle, extended. to arrests for non-payment of money ordered to be paid by an order of the Court of Chancery, or by a rule of a common-law court, though technically not constituting a debt (c); and the primarily technical term “ purchaser,” was understood to be used in the 2 P. & M. 189; Dolphin » Layton, 4 CPD. 130. Comp. also under the: stat. of set off, Remington v, Stevens, 2 Stra, (a) Colchester v. Kewney, LR. 2 Ex, 363. See R. v». Man- chester, 4 B. & A. 504. (6) Sutton’s Case, 10 Rep. 3la. (c) Exp. Williams, 1 Sch. & Lef. 169; R. v. Edwards, 9 B. & C. 652; R. v, Dunne, 2M. & S. 201; Lees v. Newton, LR. 1 CP. 658. Comp. Bancroft v, Mitchell, LR. 2 QB. 549 ; Drover v. Beyer, 13 Ch. D. 242, 49 LJ. 37; Exp. Muirhead, 2 Ch. D. 22; Patterson v. Patterson, LR. 1271; Francis v, Dodsworth, 4 C. B. 220, per Wilde C.J. ; Rawley v. Rawley, 1 QBD. 460; and see Jones v. Thompsén, E. B. & E. 63; 27 LJ.234 ; Dresser v. Jones, 6 CB. NS. 429; Richardson v, Hunt, 2 CBD. 9; Hall v. Pritchett, 3 QBD. 215, 77 LJ. 15; Exp. Jones, 18 Ch. D. 109, Digitized by Microsoft® WORDS CONSTRUED IN POPULAR SENSE. 71 Bankruptcy Act, in the popular sense of buyer (a). So, when it was enacted (5 & 6 W. 4, c. 54), that mar- riages already celebrated between persons within pro- hibited degrees should not be annulled for that cause, unless by sentence pronounced in a suit then “ depend- “ing ;” it was held that this last word was to be un- derstood in a popular and not technical sense, and that a suit was “depending” as soon as the citation had been issued (b). An Act which authorized the Court before which a road indictment was “ preferred,” to give the prosecutor costs, was held to authorise the judge to give them, who tried the indictment at Nisi Prius after its removal into the Queen’s Bench (c) ; for the technical meaning of the word “preferred,” would have rendered the Act nugatory in a large majority of cases, road indictments being rarely tried at the Assizes at which they are “ preferred” (d). Where judgment was “recovered” for 5001. on a warrant of attorney to secure an annuity of 301, of which only 15/. were due, it was held that the defendant was protected from arrest by the enact- ment that no person should be taken in execution on a judgment “where the sum recovered does not exceed (a) Exp. Hillman, 10 Ch, D. (c) R. v, Pembridge, 3 QB. 622. 901; R. »v. Preston, 7 Dowl. (b) Sherwood v, Ray, 1 Moo. 593; and see R. v. Papworth, 2 PC. 353. See Ditcher v Deni- East, 413; R.v. Ipstones, 2 QB. son, 11 Moo. PC. 324; R. w 216. ; Brooks, 2 C. & K, 402, (d) Per Coleridge J.3 QB. 906. Digitized by Microsoft® 72 INTERPRETATION OF STATUTES. 201.” Though technically the judgment was “re “covered” for the larger sum, the sum really recovered was under 20. (a). The Railway Clauses Consolidation Act, 1845, which, while giving companies power to take land for temporary purposes, provided that they should not be exempted from “an action” for nuisance or other injury, was construed as not limited to what were technically “ actions,” but included all proceed- ings whether at law or in equity (0). Where the Quarter Sessions were empowered to order “the party against whom an appeal was decided,” to pay the costs of the successful party ; it was held that the pro- secutor who had procured the conviction successfully appealed against, was for this purpose the party appealed against, though he was not so on the record, or formally, nor even by being served with 1®tice of the appeal (c). The convicting justices were not the parties appealed against, though the Act required that the notice of appeal should be served on them. Even the word “party” has received the sense in which it is sometimes vulgarly used, of “ person,” when it is plain that Parliament so intended it; as in the Chancery Amendment Act of 1852, which enacted that any (a) 7 & 8 Vict. c 96, 8.5; Clements, 15 QB. 1046; Rawley Johnson v, Harris, 15 CB. 357; v. Rawley, 1 QBD. 460. 24 LJ. 40. (c) R. v. Hants, 1 B. & Ad. (b) 8 Vict. ¢. 20, s. 32; Fen- 654; Rv, Purdey, 34 LJ. MC. wick » East London R.Co, LR. 4; 5B, & 8. 909. 20 Eq. 544; and see Walker v, Digitized by Microsoft® WORDS CONSTRUED IN POPULAR SENSE. 73 “party” who made an attidavit in a suit should. be liable to cross-examination (a). The 17 Geo. 3, c. 26, which, after requiring the registration of annuities, to check, as the preamble states, the pernicious practice of raising money by the sale of life annuities, except annuities charged on lands whereof the grantor is “seised 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 appoint- ment; 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 illegiti- mate 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 illegitimate children, since clandestine marriages by them were within the mischief which it was the object to remedy (d); and the 4 & 5 Ph. & M. c. 8, s. 8, which made it penal to take an unmar- (a) 15 & 16 Vict. c. 86,8.40; mingham, 8 QB, 410; R. wu Re Quartz Hill Co., 21 Ch. D. Maude, 2 Dowl. NS. 58; Sim- 642, mons v. Crook, LR. 6 HL. 265. (6) Halsey v. Hales, 3 TR. (4) R ». Hodnett, 1 TR. 96; 194. Comp. Leach v. Jay, LR. and see R. v. St. Giles, 11 QB. 9 Ch. D. 42, 47 Ld. 876. 173; R. v. Brighton, 1 B. & S. (c) R. v. Helton, Burr. 8. C. 447, 30 LJ. MC. 197, 187, 2 Stra, 1168; R. » Bir- Digitized by Microsoft® 4 INTERPRETATION OF STATUTES. ried 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 (a). In a Customs’ Act, which imposes duties on imported commodities, the articles specified would generally be understood in their known commercial sense (b). Thus, “ Bohea” 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 (c). So, to take an illustration from a con- tract, a fire policy which limited. the responsibility of the insurers to explosions by “gas,” was construed as referring only to that kind of gas which was popularly known by that term, viz., common illuminating gas (d). Where a statute applied to the United Kingdom, and the technical meaning of words differed in the dif- ferent Kingdoms, the language would be taken in its popular sense (e). (a) R. v. Cornforth, 2 Stra. 1162. Comp. Dorin »v. Dorin. LR. 7 HL. 568; Dickinson ». N. E. BR. Co., 2 H. & C. 735, 33 LJ. 91; Re Wright, 2 K. & J. 595. (6) Atty.-Gen. » Bailey, 1 Ex. 281; Elliott v, Swartwout, 10 Peters, 137. (c) Two hundred chests of tea, 9 Wheat. 430; “Gin,” Webb »v, Knight, 2 QBD. 530; “ Spirits,” Atty-Gen. v. Bailey, 1 Ex, 281. (d) Stanley v. Western Ins, Co., LR. 3 Ex. 71. (e) Saltoun General, 3 Macq. 659. Advocate- Digitized by Microsoft® WORDS RESTRICTED TO THE MATTER. 75 It isto be added that the language of a statute, as of every other writing, is to be construed in the sense which it bore at the period when it was passed (a). But it is in the interpretation of general words and phrases that the principle of strictly adapting the meaning to the particular subject-matter in reference to which the words are used, finds its most frequent application. However wide in the abstract, they are more or less elastic, and admit of restriction or expan- sion to suit the subject-matter. While expressing truly enough all that the legislature intended, they fre- quently express more, in their literal meaning and natural force; and it is necessary to give them the meaning which best suits the scope and object of the Statute, without extending to ground foreign to the intention. It is, therefore, 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 (b). They are to be construed as particular if the intention be particular (c); that is, they must be understood as used in reference to the subject-matter in the mind of the Legislature, and strictly limited to it. Thus, enactments which related to “ persons” would be variously understood, according to the circum- stances under which they were used, as including or (a) See ex. gr. St. Cross v (2) Bac. Max. 10, Howard, 6 TR. 338; and see (c) Stradling ». Morgan, further inf. chap. 11, 8. 1. Plowd. 204. Digitized by Microsoft® 76 INTERPRETATION OF STATUTES. not including corporations (a); and as meaning per- - sons born in the Queen’s allegiance, or as includ- ing also all foreigners actually within the British dominions (b), or (the meaning in prize and commer. cial law,) only persons domiciled in those domi- nions (c). In an Act which provided for the recovery of wages by “ persons belonging to a ship,” this expres- sion would obviously be confined to persons employed in its service on board ; while in one which related to the salvage of “ persons belonging to the ship,” it would as obviously include passengers as well as crew (d). The 13 Eliz. c, 5, which made void, as against creditors, all voluntary alienation of “ goods,” was held to apply only to such goods as were liable to be taken in execution ; as the object of the Act was to prevent such property from being withdrawn from the reach of creditors: consequently, the word “goods” was held not to include choses in action, a8 long as these were not subject to execution (e). But the same word was held to include them in the reputed (a) R. v. Gardner, Cowp. 79 ; R. v. York, 6 A. & E. 419; R. v, Beverley Gas Co., Id. 645, Bac. Stat. Uses, 43, 57; Phar- maceutical Soc. v. London Supply Assoc., 5 App, 857, 49 LJ. 736 ; St. Leonard’s v, Frank- lin, 3 CPD. 377. (6) Courteen’s Case, Hob. 270, 1 Hale, P. C. 542; Nga Hoong v. R., 7 Cox, 489 ; Low v. Routledge, 35 LJ. Ch. 117, 1 LR. Ch. 42; per Turner LJ. (c) Wilson » Marryat, 8 TR. 31; The Indian Chief, 3 Rob. 12, (d) The Fusilier, 3 Moo. N. 8. 51, 34 LJ. P. M. & A. 25 ; see The Cybele, 3 PD. 8; U. S.2 Winn, 3 Sumner, 209. (e) Dundas v, Dutens, 1 Ves. J. 196; Rider v, Kidder, 10 Digitized by Microsoft® WORDS RESTRICTED TO THE MATTER. 17 ownership clauses of former bankrupt and insolvent Acts (a) ; as they were deemed to fall within the specific object of the legislature, which was to protect credi- tors against being deceived by an apparent ownership of property. So in bankruptcy Acts, the word creditor” is found to be limited, usually, to persons who are creditors at the time of the bankruptcy and entitled to prove under it (0). The complex term “inhabitant” may be cited as having frequently furnished illustration of this adap- tation of the meaning to what appears to suit most exactly the object of the Act. In the abstract, the word would include every human being dwelling in the place 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 (c). But where the object of an Act was to impose a pecuniary burden in respect of property in the locality, (as in the case of the Statute of Bridges, 22 Henry 8, c. 5, which throws the burden of making and repairing bridges on the “inhabitants” of the town or county in which they are situated, and in the Riot and Black Acts (d),) the Ves. 360; Norcutt v. Dodd, Cr. 44, 32 LJ. QB. 337. & Ph. 100 ; Sims v. Thomas, 12 (6) Grace v Bishop, 11 Ex. A. & E, 536. 424, 25 LJ. 58; Re Poland, LR. (a) Ryall v. Rowles, 1 Ves. 1 Ch, 356. 367; Exp. Baldwin, De G. & (c) R. v Mashiter, 6 A. & E. Jo. 230, 27 LJ. Bank. 17; “In- 165, per Littledale J. solvency,” comp. Re Muggridge, (d) R. w. North Curry, 4 B. Johns. 625, 29 LJ. Ch. 288; C. 958, per Bayley J. and R. v. Saddlers’ Co, 10 HL Digitized by Microsoft® 78 INTERPRETATION OF STATUTES. expression would be construed as comprising all holders of lands or houses in the locality, whether resident or not, and corporate bodies as well as indi- viduals, 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 impro- bable that the Legislature intended to tax them (a). 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 proprietors. 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 dwell- ing-house in another, was not an “inhabitant” of the former parish so as to be bound to serve as its con- stable (b). So, an Act which authorized the imposi- tion 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 (c). But here the word “occupied” would (a) 2 Inst. 702, R.v North 12 East, 330; Williams a. Jones, Curry, 4 B. & C. 958, per Bay- Id. 387. ley J. (c) Donne »v. Martyr, 8 B. & (b) RB. v. Adlard, 4B & CC, 62. 772; and see R. v. Nicholson, Digitized by Microsoft® WORDS RESTRICTED TO THE MATTER. 79 suggest a meaning for “ inhabitants” distinct from “ occupiers.” Again, another meaning would be given to the same expression, where the object was to determine 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 im- possible 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 (b). But if an Act requires residence for a certain time at least, as a qualification, it would be understood to make actual bodily presence in the place for that time indispens- able ; 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 (c). (a) St. Mary v. Radcliffe, 1 Abbott, LR. 5 CP. 309; Bond Stra. 60, per Parker C.J.; R.v. v. St. George’s, Id. 314; and see Charles, Burr. Set. C. 706; R. Whitehorne v Thomas, 7 M. & v. Stratford, 11 East, 176; Gr. 1; Ford » Pye, LR. 9 CP. R. v. Mildenhall, 3B. & A.374; 269; Ford v Hart, Id. 273; Beal v. Ford, 3 CPD. 73; Ford McDougal v. Paterson, 11 CB. v. Drew, 5 CPD. 59; Riley v 755, 2 L. M. & P. 681; Dun- Read, 4 Ex. D. 100. ston v. Paterson, 5 CB. NS, 267. (6) Wescomb’s Case, LR. 4 (c) R. v. Oxford (V.C.), LR. QB. 110; Taylor » St. Mary 7 QB. 471. Digitized by Microsoft® 80 INTERPRETATION OF STATUTES. The same expression has received another meaning where the object of the Act was to preserve informa- tion 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 enactment which requires an attor- ney to indorse his “place of abode” on the summons which he issues; or a witness to a bill of sale, to add to his signature a description of his occupation and “residence.” In these cases it has been held, con- sidering the object which the Legislature had in view, that the place of business was the abode or residence intended (a). But in general the place of business would not be regarded as the place of abode (6). Under the provisions of the County Courts Act, which gives the Superior Courts concurrent jurisdic- tion when the parties dwell more than twenty miles apart, the principal office of a railway company is its dwelling (c) ; but not its other offices or stations (d), But the manufactory or shop, where the business is (a) Roberts v. Williams, 2 C.M. & R. 561; Blackwell v. England, 27 LJ. QB. 124, 8 E. & B. 541; Attenborough ». Thompson, 27 LJ. Ex. 23, 2 H. & N.559; Ablett v. Basham, 25 LJ. QB. 239, 5 E. & B. 1019; Hewer v. Cox, 30 LJ. QB. 73 ; Larchin v N. W. Bank, LR. 10 Ex. 64, per Blackburn J. See Thorpe v Browne, LR. 2 HL. 220. (6) See R. v. Hammond, 17 QB. 772; 21 LJ. QB. 153. (c) Adams v. Gt. Western R. Co., 6 H. & N. 404; Taylor z. Crowland Gas Co., 11 Ex. 1; Minor v. N. W. R. Co., 1 CB. NS. 325, 26 LJ. CP. 39. (d) Shiels v. G. N. R. Co., 30 LJ. QB. 331; Brown v, London and N. W. R. Co, 4B. & 5 326 ; 32 LJ. 318, Digitized by Microsoft® WORDS RESTRICTED TO THE MATTER. 81 substantially carried on, and not its registered office, is the dwelling, within the meaning of the same pro- vision, of a manufacturing company (a). For fiscal purposes, a corporation is regarded as residing where the governing body carries on the supreme manage- ment, 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 (b). A foreign cor- poration which had any establishment in this country would for the same purpose be considered as resident here, as regards the question of jurisdiction (c). In the same way, the word “ occupier ” 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 (d) ; while a servant or an officer who is in actual occupation of premises, virtute officii, would not be an “occupier” (¢). But in the Bill of Sales Act of 1854, which provides that personal (c) Cesena Sulphur Co. w Nicholson, 1 Ex. D. 428. (d) R. v. Poynder, 1B. & C. 178. (e) Clarke v Bury St. Ed- (a) Keynsham v. Baker, 2 H. & C. 729, 33 LJ. Ex. 41; see also Aberystwith Pier Co. v. Cooper, 35 LJ. QB. 44. (b) Newby». Colt’s Arms Co., LR. 7 QB. 293; Carron Iron Co. v. Maclaren, 5 H. L. 459. See Atty.-Gen. v. Alexander, LR. 10 Ex. 20. munds, 1 CB. NS. 23, 26 LJ. 12; Bent v. Roberts, 3 Ex. D. 66, 47 LJ. 112; R. v Spurrell, LR. 1 QB. 72, 35 LJ. 74. G Digitized by Microsoft® 82 INTERPRETATION OF STATUTES. chattels shall be deemed in the possession of the grantor of a bill of sale so long as they are on the premises “ occupied” by him, actual personal occupa- tion, and not merely tenancy, is intended ; and there- fore 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, the word “owner” may mean occupier; 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 sending fire engines to put it out (0b). This restriction of meaning may be carried still further to promote the real intention, and not ex- ceed 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 parish 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 inhabi- (a) 17 & 18 Vict. « 36; “occupier,” Bradley v. Baylis, Robinson v. Briggs, LR. 6 Ex. 1. As to the word “traveller,” see Taylor v Humphreys, 17 CB. 539, 10 CB. NS. 429; Fisher v. Howard, 34 LJ. MC. 42; Atkinson v. Sellers, 5 CB. NS. 442; Saunders v. S. E. R. Co., 5 QBD. 456. “ Lodger,” and 8 QBD. 195 ; Morton v, Palmer, Id. 7. (6) 10 & 11 Vict. « 89; Lewis v. Arnold, LR. 10 QB. 245. See Exp. Saffron Hill, 24 LJ. MC. 56; School Board v. Islington, 1 QBD. 65; Anck- etill v. Baylis, 52 LJ. QB. 104. Digitized by Microsoft® WORDS RESTRICTED TO THE MATTER. 83 tant. As the object of the Act was limited to the protection of those inhabitants only who had pre- viously no access to the rates (which the church- wardens had), the meaning of the term “inhabitants” 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 keep- ing 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 Execu- tive the necessary powers for carrying its provisions into effect, having provided that each State should, on the reyuisition of the other, deliver up to justice all persons who, being charged with murder, “ piracy,” or other crimes therein mentioned, committed within the jurisdiction 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 (a) Wethered v, Calcutt, 5 Masterton, 6 A. & E. 153. Scott N. R. 409; see also R. a2 Digitized by Microsoft® 84 INTERPRETATION OF STATOTES. 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 (a). SECTION 1I.—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 (b) ; and the widest operation is therefore to be given to the enactment, so long as it does not go beyond its real object and scope. When, for instance, the language, in its usual meaning, falls short of the whole object of the legislature, a more extended meaning may be attributed to it, if fairly susceptible of it. The scope of the Act being as- certained, the words are to be construed as including every case clearly within that object, if they can do so by any reasonable construction, although they point primarily to another or a more limited class of cases (c). Thus, Acts which gave a “ single woman” who had a bastard child the right to sue the putative father for its maintenance have been held to include in that expression, not only a widow (d@), but a married woman (a) Re Ternan, or Tivnan, burn,C. J. in Twycross». Grant, 33 LJ. MC. 201,5 B. & S. 645. 2 CPD. 530, See also Kwok Ah Sing » (c) Per Cleasby B. in Scott Atty.-Genl. 5 PC. 179. v. Legg, 2 Ex. D. 42. (b) Heydon’s Case, 3 Rep. 7b. (d) Antony w Cardenham, 2 Per Lord Kenyon in Turtle v, Bott, 194; R. v Wymondham, Hartwell, 6 TR. 429 ; wer Cock- 2 QB. 541. Digitized by Microsoft® BENEFICIAL CONSTRUCTION. 85 living 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 incom- patible with marital access, though not in popular language a single woman, is nevertheless, for the pur- poses of the Act, and therefore in the contemplation of the legislature, as “single” as a woman who has no husband. The authority given by the Municipal Corporations Act to expend the local funds upon “cor- “porate buildings” was construed as extending to the cost of lining the corporation pew in the church (6). With the same object, 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 land with the licence of the occupier (c). 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 including a per- son standing on a spot in a park or place, where he (a) R. v. Pilkington, 2 E, & (6) 5&6 W.4,¢.76; Rv, B. 546, S.C. nom. Exp. Grimes, Warwick, 8 QB. 926. 22 LJ. MC. 153; R.v. Colling — (c) Dawson ». Midland R. wood, 12 QB. 681; R. v. Luffe, Co., 8 Ex. 8; and see Kittow 8 East, 193. Comp. Stacey v. . Liskeard, LR. 10 QB. 7. Lintell, 4 QBD. 291, Digitized by Microsoft® 86 INTERPRETATION OF STATUTES. had no more right to stand than any other person (a). 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 har- bour and shallow water, was “a ship” within the Merchant Shipping Act of 1862, which provides that when a collision between two “ships” takes place, the master of each ship is bound to render assistance to the other, on pain of the cancellation or suspension 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 (6). The statutes which require notice of action for any- thing “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 (c). Even Criminal Statutes, which are subject to the strictest construction, will be found to furnish abundant illus- trations of giving an extended meaning to a word (d). (a) See Doggett v. Cattarns, (c) Wilson v, Halifax, LR. 3 34 LJ. CP. 46; Bows v. Fen- Ex. 114; Poulsum ». Thirst, wick, LR. 9 CP. 339. LR. 2 CP. 449; see also Davis (0) Inve Fergusson, LR.6 QR. »v. Curling, 8 QB. 286 ; Newton 280. Comp. The Mac, 7 PD. 38. »w Ellis, 5 E. & B. 115. See 36 & 37 Vict, c. 85, s, 16. (d) See chap. 10, infra. Digitized by Microsoft® BENEFICIAL CONSTRUCTION. ‘ 87 A statute which requires 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 principle of law that qui facit per alium facit per se ; unless there was something either in the language or in the object of the statute which showed that a per- sonal 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). So, the Dramatic Copyright Act, 3 & 4 Will. 4, ¢. 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(>). When an Irish Statute, after giving to tenants for lives, or for more than fourteen years, the right of fell- ing any trees which they had planted, required that “the tenant so planting” them should file an + (a) BR. v. Middlesex, 1 L. M. & P. 621; BR. vw. Carew, 20 LJ. MC, 44n.; R. v. Kent, 8 QB. 315. See other instances in Walsh v. Southworth, 20 LJ. MC. 165,2L.M.&P. 91; R. v. Huntingdonshire, 1 L. M. & P. 78; Charles v. Blackwell, 1 CPD, 548; He Lancaster, 3 Ch. D. 498; Nicholson v. Hood, 9 M. & W. 365; Brooker. v. Wood, 5 B. & Ad. 1052; Jory ». Orchard, 2 B. & P. 39; Philps v. Winchcomb, 3 Bulstr. 77. Comp. Hider v. Donell, 1 Taunt. 383. (6) Morton »v. Copeland, 16 CB, 517, 24 LJ, 169, Digitized by Microsoft® 88 . INTERPRETATION OF STATUTES, 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, would have rendered the Act inapplicable to most of the cases which it had in view (a). The principle is well illustrated by two decisions under the 6 & 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 per- sonal 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 ad- mitted ; just as, to guard against personation, the sig- nature of a voting paper under the former Municipal Corporations Act must be personal and not by agent(b). 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 se, in the case of the mere delivery (c). The knowledge of the servant may be constructively that of the master within the meaning of an Act, even when making the master (a) Mountcashel v, O'Neil, 5 LJ. 173; and see Monks » H. L. 937. Jackson, 1 CPD. 683. (6) 5 &6 Wm. 4,c. 76, s. 32; (c) Cuming v, Toms, 7 M. & R. w Tart, 1 E. & E, 618, 28 Gr. 29 and 88, Digitized by Microsoft® BENEFICIAL CONSTRUCTION. 89 penally responsible(a). An Act (18 & 19 Vict. ¢. 121) which authorises 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 authorise the summoning ‘of the occupier, if the person who had actually done the act was his servant, since in law the act of the latter is that of the former (h). On the other hand, Lord Tenterden’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 per- sonal signature, and not to admit of a signature by an agent (c). But this construction was based partly on the circumstance that another Statute of Limita- tions made express mention of an agent (d). Where an Act required that notices should be signed by cer- tain 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 compli- ance with the Act (e). Again, where the statute required that the act (a) Core v. James, LJ. 7 QB. Jewsbury, LR. 9 QB. 301; 135, per Lush J.; R. v. Stephens, Williams v. Mason, 28 L. Times, LR. 1 QB. 702. 232; Barwick v, London 8. Bank, (b) Barnes v. Ackroyd, LR. LR. 2 Ex. 259. 7 QB, 474. (d) Sup. p. 46. (c) Hyde v. Johnson, 2 Bing. (e) Miles: v. Bough, 3 QB. NC. 778. See also Swift » 845. Digitized by Microsoft® 90 INTERPRETATION OF STATUTES. 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 himself, or his pro- poser or seconder (a). Sometimes the governing principle of the remedial enactment has been extended to cases not included in its language, to prevent a failure of justice, and conse- quently of the probable intention. Thus, the Common Law Procedure Act of 1854, s. 50, which empowered a Court, upon the application of either party to a cause, supported by the affidavit of such party, of his belief that a material document was in the possession of his opponent, to order its production, though it did not admit the affidavit of the attorney of the party, even when the latter was abroad (b), was satisfied by the attorney’s affidavit, where the party was a corporation, and consequently incapable of making an affidavit, or, perhaps, of forming a be- lief(c). The governing principle was that all suitors should have power of getting discovery (d); and asa corporation could make no affidavit, or could make (a) Monks ». Jackson, 1 Clarke, 11 Ex. 712, 25 LJ. Ex. CPD. 683. The Munic, Corp. 113. Act, 1882, omits “himself ;” (c) Kingsford » G. W. R. see 3rd Schedule, part 2, s. 7. Co., 16 CB. NS. 761, 33 LJ. CP. (6) Christopherson v. Lotinga, 307. 15 CB. NS. 809; Herschfield v. (d) Per Erle, C. J. Id. Digitized by Microsoft® BENEFICIAL CONSTRUCTION. 91 one only by their attorney, the affidavit of the latter was considered a substantial compliance with the Act. A provision of the 3 & 4 Wm. 4, c. 42, which, after depriving the parties to a reference under a rule of Court or judge's order of the power which they formerly had of revoking the authority of their arbi- trator, enacted that a judge might from time to time enlarge the time for the arbitrator to make his award, was at first thought confined to cases where a revo- cation had been attempted(a); or, at all events, applicable only where the arbitrator had no power to enlarge the time, or had not yet made his award () ; but it was afterwards held that a judge had power to enlarge the time in all references made by judicial order(c); and to do so even after the arbitrator had issued his award after the time to which he was limited had expired, and the award was consequently, so far, a nullity (d). The beneficial spirit of construction is also well illustrated by cases where there is so far a conflict between the general enactment and some of its sub- sidiary provisions, that the former would be limited in the scope of its operation if the latter were not (a) Potter v. Newman, 2 C. (c) Leslie v. Richardson, 6 M. & R. 742. CB. 378; 6D. & L 91. (6) Per Tindal C. J. in Lam- (d) Browne v. Collyer, 2 L. bert v. Hutchinson, 2M. & Gr. M. & P. 470; Ward v. Sec. of 858, and per Patteson, J. in Doe State for War, 32 LJ. QB. 53; y. Powell, 7 Dowl. 539. Lord v. Lee, LR. 3 QB. 404. Digitized by Microsoft® 92 INTERPRETATION OF STATUTES. restricted. An Act which, after authorising the im- position of a local rate on all occupiers of land in a parish, gives a dissatisfied ratepayer an appeal, but at the same time requires the appellant to enter into re- cognizances to prosecute the appeal, presents such a conflict. Hither it excludes corporations from the right of appeal, because a corporation is incapable of entering into recognizances; or it extends the right to them, without compliance with that special exi- gency. And the latter would be unquestionably the beneficial way of interpreting the Statute. The genera] and paramount object of the Act would re- ceive full effect by giving to corporate bodies the same right of appeal against the burthen imposed on them ; and the subsidiary provision would be under- stood as applicable only to those who were capable of entering into recognizances (a). The Mortmain Act, which prohibits the disposition of lands to a charity by other means than by a deed executed a year before the donor’s death, was open to the construction that it applied only to lands which passed by deed, and therefore not to lands of copy- hold tenure(b). But as the object of the Statute was, manifestly, to include all lands of whatever tenure in its prohibition, the only consequence that would have followed, if it had been thought impos- (2) Cortis v. Kent Water- (o) Comp. Smith v, Adams, works, 7 B. & C. 314. sup. p. 37, Digitized by Microsoft® BENEFICIAL CONSTRUCTION. 93 sible that the mode of eonveyance provided by the Statute should operate to transfer copyholds, would have been that copyholds would have fallen within the general prohibition absolutely, and would have been incapable of passing to a charity by any mode of conveyance (a). Except in some few cases where a statute has fallen under the principle of excessively strict construction, the language of a statute is generally extended to new things which were not known and could not have been contemplated by the legislature when it was passed. This occurs when the Act deals with a genus, and the thing which afterwards comes into existence is a species of it(6). Thus, the provision of Magna Charta which exempts lords from the liability of having their carts taken for carriage was held to extend to degrees of nobility not known when it was made, as dukes, marquises, and viscounts(c). The 17 Geo. 2 (a.p. 1744), which gave parishioners the right of inspecting the accounts of churchwardens and overseers under the poor law of Elizabeth, was held to extend to those of guardians, officers who were created by Gilbert’s Act (22 Geo. 3), passed in 1783(d). The 18 Eliz. c. 5, which made void, as (a) Per Lord Tenterden in Holt, C. J. in Lane v. Cotton, Doe v. Waterton, 3 B. & A. 12 Mod. 485. 151. (c) 2 Inst. 35. (6) Per Bovill C. J. in R. v (d) 17 Geo. 2,¢. 38 ; 22 Geo. 3, Smith, LR. 1 CC. 170; per c. 83; R. » Great Farringdon, Digitized by Microsoft® 94 INTERPRETATION OF STATUTES. against creditors, transfers of lands, goods, and chat- tels, did not originally apply to copyholds or choses in action, as these were not seizable in execution (a): but when they were made subject to be so taken (1 & 2 Vict. c. 110), they fell within the operation of the Act (b). The Act of Geo. 2, which protects copy- right in engravings by a penalty for piratically en- graving, etching, or otherwise, or “in any other “manner” copying them, extends to copies taken by the recent invention of photography (c). 9B. & C. 541; Bennett » Ed- (c) Gambart v. Ball, 14 wards, 7 B. & C. 586; 6 Bing. CB. NS. 306; 32 LJ. CP. 230. 166; Graves v. Ashford, LR. (a) Sims v. Thomas, 12 A.& 2 CP. 410; Atty.-Genl » ’ &K. 536. Lockwood, 9 M. & W. 378; (6) Norcutt v. Dodd, Cr. & Ph. 100; Barrack ». McCulloch, 26 LJ. Ch. 105, 3 K. & J. 110; R. v. Smith, LR. 1 C.C. 270; per Bovill, C. J. Barber v. Tilson, 3M. & G. 429. See other instances, Re Taylor, 10 Sim. 291; Exp. Arrowsmith, 8 Ch. D. 96; and cases cited infra, chap. 10, s. 1. Digitized by Microsoft® CHAPTER III. SECTION I.—CONSEQUENCES TO BE CONSIDERED—PRE- SUMPTION AGAINST AN ALTERATION OF THE LAW BEYOND THE SPECIFIC OBJECT OF THE ACT. BEFoRE adopting any proposed construction of a passage susceptible of more than one meaning, it is important to consider the effects or consequences which would result from it (a), for they often point out the genuine meaning of the words (b). There are certain objects which the legislature is presumed not to intend ; and a construction which would lead to any of them is therefore to be avoided. It is found some- times necessary to depart, not only from the primary and literal meaning of the words, but also from the rules of grammatical construction, when it is im- probable that they express the real intention of the legislature ; it being more reasonable to hold that the legislature expressed its intention in a slovenly manner, than it intended something which it is presumed not to intend. (a) Grot. de B. & P. b. 2, c (0) Puff. L. N. b. 5, ¢ 12, 16,8. 4; U.S. v. Fisher, 2Cranch, 8. 8. 390, per Cur. Digitized by Microsoft® 96 INTERPRETATION OF STATUTES. One of these presumptions is that the legislature does not intend to make any alteration in the law beyond what it explicitly declares (a), either in express terms or by unmistakeable implication ; or, in other words, beyond the immediate scope and object of the statute (a). In all general matters beyond, the law remains undisturbed. It is in the last degree impro- bable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness (b) ; and to give any such effect to general words, simply because, in their widest and perhaps natural sense, they have that meaning, would be to give them a meaning in which they were not really used. It is, therefore, an established rule of construction that general words and phrases, however wide and comprehensive in their literal sense, must be construed as strictly limited to the immediate objects of the Act, and as not altering the general principles of the law (c). Thus, a Statute which authorized ‘‘any” or “the “nearest” justice of the peace to try certain cases, would not authorize a justice to try any such cases out of the territorial limits of his own jurisdic- (a) Per Trevor J. in Arthur Minet v. Leman, 20 Beav. 278, v. Bokenham, 11 Mod. 150; see 24 LJ. Ch. 547; Wear Com- also Harbert’s Case, 3 Rep. 13b. missioners ». Adamson, 1 QBD. (6) 2 Cranch, 390. 546, per Mellish L. J., 2 App. (c) Per Sir J. Romilly in 783. Digitized by Microsoft® PRESUMPTION AGAINST GENERAL ALTERATIONS. 97 tion (a2); or in which he had a disqualifying in- terest (b) ; or which he was incapacitated by any other general principle of law from hearing (c); or to hear them by any other course of proceeding than that established by law (d). So, the Debtors Act, 1869, which empowers “any (inferior) Court” to commit for 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 (e). An Act which authorized a distress would not authorize a seizure of goods in custodia legis (f). The provision in the Judicature Act of 1873, that the Court might grant an injunction in all cases in which it should con- sider 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 (g). The provisions (2) 1 Hawk. P. C., c 65, Washer ». Elliot, 1 CPD. 169. s. 45; -Re Peerless, 1 QB. 153 ; (f) 17 & 18 Vict. c. 104, R. v. Fylingdales, 7 B. & C.438. 8 523; The Westmoreland, 2 (b) R. v. Cheltenham, 1 QB. W. Rob. 394. 467. (9) Sect. 25, sub.-s. 8; Bed- (c) Bonham’s Case, 8 Rep. dow v. Beddow, 9 ChD. 89; 118a; Great Charte v.Kenning- Day v. Brownrigg, 10 ChD. ton, 2 Stra. 1173; R. v. Sains- 294; and per Lord Hatherley, bury, 4 TR. 456. in Reuss » Bos, LR. 5 App. (d) Dalt. c. 6, 8. 6. 193, () 32 & 33 Vict. c 625 Digitized by Microsoft® 98 INTERPRETATION OF STATUTES, in Order 55, Rule 1, of the Judicature Act and the Regulation of Railways Act, 1873, that the costs of and incidental to proceedings shall be in the discretion of the Court was construed as giving no wider discre- tion than had always been exercised by the Court of Chancery, and therefore as not authorizing an order on a successful defendant to ‘pay a portion of the plaintift’s costs (a). An Act which provided that a mayor should not be, by reason of his office, ineligible as a town councillor or alderman, would not make him eligible when he acted in the judicial capacity of returning officer at the election ; for it would not be a just construction of the language used, or a legitimate inference from it, that the legislature had intended to repeal by a mere side- wind the principle of law that a man cannot be a judge in his own case (6). So, an Act which directed the election of officers, would be understood as author- izing it only on a lawful day, and not on a Sun- day (c); and if it declared that the candidate who had the majority of votes should be deemed elected, it would be construed as not intending to override the general principle, that voters who vote for a person (a) Foster x G. W. R. Co., Milledge, 4 QBD. 332, S. C. 51 LJ. QB. 233. nom. R. » Weymouth, 48 LJ. (6) R. vu Owens, 2 FE. & E. 139. 86, 28 LJ. 316; R. vu Tewkes- (c) R. v. Butler, 1 W. Bl. 649; bury, LR. 3 QB. 639; R. vw R&R.» Bridgewater, Cowp. 139. Digitized by Microsoft® PRESUMPTION AGAINST GENERAL ALTERATIONS. 99 whom they know to be ineligible, throw away- their votes (a). In the same way, a statute requiring a recognizance would not be understood as giving competency to minors and married women to bind themselves by such an instrument (b). The Statute of Westminster 2, which gave a judgment creditor the writ of elegit to take half the lands of his debtor, did not authorize the issue of the writ against the heir of the debtor during his minority (c). So, 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 per- form that duty (d); and an Act which punished “every person” who deserted his or her children would not apply toa married woman whom her husband had deserted (e). 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 gender should in- (a) R. v» Coaks, 3 E. & B, Hussey’s Case, 9 Rep. 73. 249, 23 LJ. 133; R. v. How, (c) 2 Inst. 395. 33 LJ. MC. 53; Campbell ». (d) Custodes v, Jinks, Styles, Maund, 5 A. & E. 865; R. w 283; Draper v. Glenfield, Bulstr. St. Matthew, 32 Law Times, NS. 345; Coleman v. Birmingham ; 558; BR. v Wimbledon Loc. 6 QBD. 615; 50 LJ. 92 (see Board, 51 LJ. Ch. 219. 33 & 34 Vict. c. 93, 8. 14). (b) Bennett v. Watson, 3 M. (ce) Peters v. Cowie, 2 QBD. &S, 1; Exp. Barrow, 3 Ves.554; 131. H2 Digitized by Microsoft® 100 INTERPRETATION OF STATUTES. elude.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 (a). An Act which simply left the determination of a matter to a majority of vestrymen “ present at the meeting ” would not affect the common law right of the minority to demand a poll; and the “ meeting” would therefore be understood as continuing until the end of the poll (0). In making copyholds devisable, the Wills Act, 1 Vict. c. 26, was construed as not intending to inter- fere with the relation of lord and tenant; and consequently the devised copyholds did not vest immediately in the devisee, but remained in the customary heir until the devisee’s admittance (c). So, the 39 Eliz. c. 5, which gave to “all persons” seised of lands in fee, power to found hospitals, was construed as not conferring that power on corporate bodies which were disabled from alienation ; though the (a) 32 & 33 Vict. c. 55,8.9; 31 LJ. 265; R. vo St. Mary, R. wv. Harrald, LR. 7 QB. 361; 3 Nev. &P. 416; R. v D’Oyley, see Chorlton v, Lings, LR.4CP. 12 A. & E. 139. 374. (c) Garland ». Meade, LR. (6) 5&6 Wm. 4, ¢. 76,818; 6 QB. 411. See also, as to R. v. How, 33 LJ. MC. 53 (QB.); choses in action, Bishop ». Curtis, _ White v. Steel, 12 CB. NS. 383, 18 QB. 878. Digitized by Microsoft® PRESUMPTION AGAINST GENERAL ALTERATIONS. 101 word “ persons” was wide enough to include corpora- tions, and indeed extended to those corporate bodies which possessed the power of alienation, such as muni- cipalities (a). Again, the Wills Act of Hen. 8, which empowered “all persons” to devise their lands, did not legalise a devise of land to a corporation (b), nor would it have enabled lunatics or minors to make a will, even if the 33 & 34 Hen. 8, s. 14, had not been passed to prevent a different construction (c). 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 in- capacity. 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 punish- ment for a crime (d). A statute which enacted that “every conveyance” 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(e). (a) 2 Inst. 721; Corp. of New- castle v. The Atty.-Genl., 12 Cl. Ves. 915; comp. O’Shanassy % Joachim, 1 App. 82; and as to & F, 402. (b) 28 Hen. 8, c. 1; Jesus College Case, Duke, Charit. Uses, 78; Braneth v. Havering, Id. 83; Christ’s Hospital v. Hawes, Id. 84, (c) Beckford » Wade, 17 married women, before the 45 & 46 Vict. c. 75, see Willock v. Noble, LR. 7 HL. 580; Doe ». Bartle, 5 B. & A. 492, (d) Duke, Charit. Uses, 134. (e) Ward v. Scott, 3 Camp. 284; see also Whidborne v. Digitized by Microsoft® 102 INTERPRETATION OF STATUTES, 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 matter foreign to the scope of the Act (a). So, a ship built in England for a foreigner would not be a “British ship” within the provisions requiring registration and transfer by bill of sale, even while still the property of the English builder (b). The Bankrupt Act which makes a composition accepted under ccrtain circumstances by creditors 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 in- tending 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, ¢. 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, Eccles. Com, 7 ChD. 375, (6) Union Bank ». Lenanton, 47 LJ. 129; Forbes v. Eccles, 3 CPD. 243. Com., 15 Eq. 51. (c) 32 & 33 Vict. « 71, 8 (a) 6 & 7 Wm. 4, & 71, 126; Campbell » Im Thurn, s. 64; Wilberforce v. Hearfield, 1 CPD. 267. 5 Ch. D. 709. Digitized by Microsoft® RESTRICTION TO SPECIFIC OBJECT. 103 “ notwithstanding any act or thing whatsoever,” was obviously not intended to apply to a person who had been simoniacally presented (a). It is evident that a literal construction would, in these cases, have carried the operation of the Act far beyond the intention. So, the sixth section of the Habeas Corpus Act which, for the prevention of unjust vexation by reite- rated commitments for the same offence, enacts that no person who has been discharged on habeas corpus shall be imprisoned again for “the same offence,” except by the Court wherein he is bound by recog- nizances to appear, or other Court having jurisdiction in the cause, would not extend to a case where the discharge was made on the ground that the commit- ment had been made without jurisdiction, though the offence for which he was arrested on the second occa- sion was the same ; for this was obviously beyond the object of the Act (0). The statutory provision for the restoration of stolen goods to the owner, on conviction of the offender, was construed as applying only to cases where the property in the goods continued in him, but not as authoriz- ing a restoration when the property had vested in an innocent purchaser (c). (a) Crawley v. Philips, Sid. 5 PC. 179. 232. (c) 24 & 25 Vict c. 96, s. 100; (b) 31 Car. 2, c. 2; Atty. Moyce v, Newington 1 QBD. Genl, v. Kwok Ah Sing, LR. 32. ; Digitized by Microsoft® 104 INTERPRETATION OF STATUTES. So, it was held that the provision of the Statute of Limitations, 3 & 4 Will. 4, c. 27, s. 26, which deprives the owner of lands of the right of suing in equity for their recovery, on the ground of fraud, from a pur- chaser who did not know or have reason ‘to believe that any such fraud had been committed, was to be construed subject to the presumption that the Legisla- ture had not intended, by its general language, to subvert the established principles of equity on the subject of constructive notice; and was therefore read . ag meaning that the purchaser did not know or have reason to believe, either by himself, or by some agent whose knowledge or reason to believe is, in equity, equivalent to his own (a). The Toleration Act, which exempts dissenters from prosecution in the Ecclesiastical Courts for not con- forming to the Church of England, does not exempt a clergyman of the Church who has seceded from it, from prosecution in those Courts for performing the Anglican church service in a dissenting chapel not licensed by the bishop; for this is a breach of dis- cipline, and not within the scope and object of the Act (b). The Statute 27 Geo. 3, ¢ 44, which enacted that no suit should be commenced in any Ecclesiastical Court for incontinence or brawling after the expiration of eight months from the commission of the offence, (a) Vane v. Vane, LR, 8 Ch. (6) 1 W. & M. St. 1; Barnes 383, v. Shore, 8 QB. 640. Digitized by Microsoft® RESTRICTION TO SPECIFIC OBJECT. 105 would apply only to suits which might be brought against laymen as well as against clergymen. It would therefore apply to a suit against a clergyman, when its object was the reformation of his manners, or his soul’s health ; but it would not apply to a suit for deprivation for the same offences, for this is a matter of church government, foreign to the object and scope of the Statute (a). The provision of the Factors Act, which enacts that “any agent intrusted with the possession of goods” shall be deemed their owner, so far as to give validity to a pledge of them, is confined by the general scope and object of the enactment to mercantile agents and transactions ; and would therefore not give validity to a pledge of house- hold furniture, not in the way of trade, made by an agent to whose possession it had been entrusted (b). An Act which empowered the directors of an incor- porated company to make contracts and bargains with workmen, agents and undertakers, would be construed as conferring on them authority to bind the company without consulting their shareholders, by such trans- actions ; but not as so altering the general law as to (a) Free v, Burgoyne, 5 B. & limitations of the meaning of the C. 400, 2 Bligh, N.S. 65. same enactment, .in Fuentes 2. (6) 5 & 6 Vict. c. 39; Woody. Montes, LR. 3 CP. 263, 4 CP. Roweliffe, 6 Hare, 191; Baines 93; Johnson». Crédit Lyonnais, v. Swainson, 1B. & S&S 831; 47 LJ. QB. 241; 3 CPD. 32 Coles v. N. W. Bank, LR. 10 (before 40 & 41 Vict. c. 39). CP. 354, 372. See further Digitized by Microsoft® 106 INTERPRETATION OF STATUTES, dispense with those formalities by which alone a corporation can bind itself to contracts, that is, by writing under the corporate seal (a). The provision in the Friendly Societies Act, which requires a reference to arbitration of “ every matter in dispute ” between a society and any of its members would, on the same principle, be confined to disputes with members as members ; and a breach of covenant by a member to repay a sum borrowed from his society was therefore held not to fall within the arbitration clause, as the dispute would be with the member as debtor, not as member (b). An Act of the Manx Legislature, intituled for amending the criminal law, which de- clares that its provisions should not affect the right of the courts to punish contempts as before, and that the House of Keys, the Clerk of the Rolls, and the regis- trars of Ecclesiastical Courts, should, “when in the execution of their respective offices,” have the power of punishing contempts in the same manner as a Court, was construed as limiting this power to the House of Keys only when exercising judicial, not legislative functions. To give it that power when exercising the latter was obviously foreign to the object of the Act, (a) London Waterworks Co. 3 De G. M. G. 997; Mulkern ». v. Bailey, 4 Bing, 283. Lord, 4 App. 182, 48 LJ. Ch. (6) 10 Geo. 4, c. 56, 8. 27; 745. Comp. Wright 2 Monarch Morrison v. Grover, 4 Ex. 430. Invest. Soc., 5 Ch. D. 726, and See also Prentice v. London, Hack v. London Provid. Building LR. 10 CP. 679; Fleming v. Self, Soc., Ch. D. 24 Feby. 1883. Digitized by Microsoft® RESTRICTION TO SPECIFIC OBJECT. 107 though the language, in its primary and full sense, included it (a). On similar grounds a conveyance of property, knowingly (b) made solely for the purpose of giving a vote contrary to the 7 & 8 W. 3, c. 25,s. 7, which declares such conveyances “void and of none effect,” is void so far as to prevent the right of voting being acquired, which is the whole aim of the Act ; but it is in other respects valid between the parties, so as to pass the property (c). In the 24 & 25 Vict. c. 96, which consolidates the law relating to larceny and analogous offences, the provision which imposes a penalty for “unlawfully and wilfully” .killmg a pigeon under circumstances not amounting to larceny, was construed as not ap- plying toa man who had intentionally and without legal justification shot his neighbour’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 was to punish crimes and not mere civil injuries, the word “unlawfully” was construed as “against the criminal law” (d). So, (a) Re Brown, 33 LJ. QB.193; &Gr. 188; Hoyland v. Brenmer, 5 B. &S. 280. See also cases on 2 CB. 84. the 2 & 3 Wm. 4, c. 71; Han- (c) Philpotts v. Philpotts, 10 mer v. Chance, 34 LJ. Ch. 413; CB. 85. Crisp v. Martin, 2 Prob. D. 15. (d) Taylor v. Newman, 4 B. (6) Marshall v, Bown, 7 M. & S, 89, 32 LJ. MC. 186. See Digitized by Microsoft® 108 INTERPRETATION OF STATUTES. 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, de- manded a fee to which he was not entitled (a) An Act which empowered inspectors to inspect the scales, weights and measures of persons offering yoods 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 seventeen ounces to the pound, that is, which was unjust against the seller; since the object and scope of the Act was limited to the pro- tection of the former (6). 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 by the Act, to the inhabitants of the parish, with power to the owners to dispose of them, was held not to authorize a convey- ance 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 (c). And where a also Kenyon v. Hart, 6 Best & (b) Brooke v. Shadgate, LR. 8. 249, 34 LJ. MC. 87; Daniel 8 QB. 352. See Edwards a. Dick, v Janes, 2 CPD. 351; Spicer B. & A. 212; East Gloucester- v. Barnard, 1 E, & E. 874, 28 shire R. Co. v. Bartholomew, LJ. 176. LR. 3 Ex. 15, (a) R. v. Badger, 6 E. & B. (c) Hinde » Chorlton, LR. 2 13, 25 LJ. MC. 8. CP. 104. Digitized by Microsoft® RESTRICTION TO SPECIFIC OBJECT. 109 church was built, under a similar Act, by subscribers in whom the freehold was vested, and the trustees had power to sell the pews ; anda subsequent Act, reciting that doubts had arisen as to the estate and interest which the subscribers 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 casement (a). So, the Public Health Act of 1875, which enacted that the streets should vest in the local authority was construed as intending, not that the soil and freehold should vest but only the surface of the soil, and as much of it in depth as was necessary for doing all that was reason- ably and usually done in streets (b), and for so long only as it continued to be a street (c). The same general principle appears to govern the class of cases which establish that enactments which require railway or other companies to make to persons interested in hereditaments taken or injuriously affected by the companies, full compensation not only for the land but for all damage sustained by such persons by reason of the exercise of such parliamentary powers, are limited to cases where the damage would have been actionable but for the Act ; and relates, not to (a) Brumfitt v. Roberts, LR. QBD. 104, 48 LJ. 128. 5 CP. 224. (c) Rolls v. St. George, South- (2) Coverdale v. Charlton, 4 wark, 14 Ch. D. 785. Digitized by Microsoft® 110 INTERPRETATION OF STATUTES. the person or business of the party prejudiced by the user of the railway in the way authorized by the Act after it is opened to the public, but only to damage caused by the construction of the railway and works, to his estate or right in the land in statu quo, without regard to any use to which it might be put (a). In other words, the object: of the enactments is not to create new rights, but to give compensation where the right of action has been taken away. And this right being taken away only when the powers are in all respects duly exercised, the provisions for compensa- tion do not extend to cases where injury has been done through their improper or negligent exercise (b). The Act which requires the registration of Bills of Sale of personal chattels, under which expression (a) See per Cockburn C.J., in New River Co. v. Johnson, 2E. &E. 435, 29 LJ. 93; per Willes J. in Beckett v. The Mid- land R. Co., LR. 3 CP. 94; Brand v7. Hammersmith, 4 HL. 171; Ricket v. Metrop. R. Co., LR. 2 HL. 175; Hall v. Bristol, LR. 2 CP. 322; R. v. Vaughan, LR. 4 QB. 190; R. v Metrop. Board, Id. 368; Hopkins 2. G. W. R. Co., 2 QBD. 225 ; Cham- berlain 2. West End and Crystal Pal. RB. Co, 2 BE & S. 617, 32 LJ. QB. 173; Senior v. Metropolitan Board of Works, 2H. & C. 258; 32 LJ. Ex. 225; R. v. Metropolitan Board of Works, 3 B. & 8. 711, 32 LJ. QB. 105. Comp. MacCarthy »v. Metrop. Board, LR. 7 HL. 243 ; Glasgow R. Co. v Hunter, LR. 2 Sc. App. 78. Comp. Rhodes v, Airedale, 1 CPD. 380. (6) Clothier v Webster, 12 CB. NS. 750, 31 LJ. 316; Gibbs »v. Liverpool Docks, and Ruck v. Williams, 3 H. & N, 164, 308, 27 LJ. 321, 357; and see the cases collected in White v. Fellowes, 10 CB. Ns, 780. Digitized by Microsoft® RESTRICTION TO SCOPE OF THE ACT. 111 fixtures are expressly included, has given rise to several decisions governed by the principle in ques- tion. The object of the enactment obviously did not extend to requiring the registration of every mort- gage under which fixtures might happen to pass, for this would include most mortgages of real pro- perty; and it has been held that the Act applies only to cases where the fixtures are dealt with as separate things. Accordingly, a mortgage of a house for a term of years, with such a separate assignment of the fixtures, that the mortgagee might sever and deal with them as distinct from the house, would require registration (a) ; but a mortgage for a term of years of a house with its fixtures, and with a general power of sale over the mortgaged property, not authorising a separate dealing by the mortgagee with the fixtures, would not require registration (6). The 10th section of the Judicature Act, 1875, which provides that in the administration of the assets of a person dying insolvent, the same rules shall be applied as to the respective rights of secured and unsecured creditors, and as to the debts provable, as are in force in bankruptcy, has similarly been the (a) Hawtrey v. Butlin, LR. see also Marsden v. Meadows, 8 QB. 290, Exp. Daglish, LR. 8 7 QBD. 80, 50 LJ. 536. Ch. 1072; Waterfall v. Peni- (6) Exp. Barclay, LR. 9 Ch. stone, 6 E. & B. 876, 26 LJ. 576; Mather v. Fraser, 2 K. & 100; R. vw Trethowan, 5 Ch. D. J. 536, 25 LJ. Ch. 361. 559; Re Eslick, 4 ChD. 496; Digitized by Microsoft® 112 INTERPRETATION OF STATUTES, subject of several decisions limiting the scope of its operation (a). The Metropolitan Building Act of 1855, which gives a right to raise any party structure authorized by the Act, on condition of “making good all “damage” occasioned thereby to the adjoining pre- mises, was held not to authorize the raising of a structure which obstructed the ancient lights of the adjoining premises; for the only damage contem- plated 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 expres- sion “making good” was understood to mean that the adjoining premises were to be restored to their original state, not that pecuniary compensation should be made (0). Some decisions on the construction of the 74th section of the Harbours 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 harbour, pier or duck, except when the vessel is in charge of a compulsorily taken pilot. Construed literally, as it was by the Queen’s Bench (c), (a) See Re Maggi, 20 Ch. D. (b) Crofts v, Haldane, LR. 2 545, 51 LJ. 560,and the cases QB. 194. cited there, and Re D’Epineuil, (c) 10 Vict. c. 27; Dennis ». Id. 491. Tovell, LR. 8 QB. 10. Digitized by Microsoft® RESTRICTION TO SCOPE OF THE ACT. 118 it made an owner responsible for the injury done by his ship to a pier, after she had been driven aground and necessarily 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 excepting 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 (a). The House of Lords held, that the owner was not liable, on the ground that the general scope and object of the Act was merely to collect the clauses which Parliament usually inserted in local. . harbour bills, and to give facilities of procedure to the undertakers of such works; and that the section did not create a new liability, but only facilitated pro- ceedings against the registered owner when damages were recoverable (0). The Act 16 & 17 Vict. c. 96, for regulating the care and treatment of lunatics, furnishes a remark- able 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 “sinole 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 (a) Wear Commissioners » (6) Id. 2 App. 743. Adamson, LR. 1 QBD. 546. Digitized by Microsoft® 114 ‘INTERPRETATION OF STATUTES. owing to domestic relationship; and the woman was in her husband’s custody, not because she was mad, but because she was his wife(a). But the Act would apply to a man who ill-treated his lunatic brother in his charge, for he has no legal custody of him by virtue of his relationship (0). On this general principle of construction, 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 by law. ‘Thus, a Statute which imposed three months’ imprisonment and the forfeit- ure of wages on a servant who “absented him- “self 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 (c). A Statute which made it felony “to break from prison,” would not apply to a pri- soner who broke out from the prison on fire, not to recover his liberty, but to save his life (d): 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 (e), (a) R. v. Rundle, Dears. 482, Turner, 9 QB, 80. See also 24 LJ. MC. 129. 21 Hen. 8, c. 13, Gibs. Cod. (6) R. v Porter, Leigh & C. 887. 394, 33 LJ. MC. 126. (d) 2 Inst. 590. (c) 4 Geo. 4, « 34,8.3; Re (e) 11.& 12 Wm. 3, 0.7, 8.9; Digitized by Microsoft® MENS REA IN CRIMINAL LAW. 115 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(a). The sheriff who arrests under a warrant the driver of the mails, is not indictable for knowingly and wilfully obstructing and retarding the mail (6). As mens rea, or a guilty mind, is, with few excep- tions, an essential element in constituting a breach of the criminal law, a statute, however comprehensive and unqualified it be in its language, is usually understood as silently requiring that this element should be imported into it, unless a contrary inten- tion be expressed (c). A statute, for instance, which in general terms enacted that every person who committed a certain act should be adjudged a felon, would not include a child under seven, or an idiot, or a lunatic during the loss of his reason (d), or a man in a state of mental insensibility caused by intoxica- tion (e); for it would be unreasonable to infer from the mere use of an unqualified term, an intention to repeal the general principle that such persons are not capable of a criminal intention. R. v. Rose, 2 Cox, 329; The LR. 1 COR. 284. Shepherdess, 5 Rob. 266. (d) 1 Hale, 706; Eyston v. (a) Edward v, Trevellick, 4 Studd, Plowd. 465; Bac. Ab. E. & B. 59. Stat. I. 6. See Exp. Stamp, De (6) U.S. » Kirby, 7 Wallace, Gex, 345. ‘ 489, (ec) R. » Moore, 3 CO. & K, (c) See ex. gr. R. » Harvey, 319, 12 Digitized by Microsoft® 116 INTERPRETATION OF STATUTES. Again, an act done in the honest assertion of a right which would be good in law if well founded in fact, but which proves unfounded in fact, would, for the same reason, not fall within a statute which prohibited it under a penalty; unless, indeed, the penalty was in the nature simply of compensation for a civil injury (a). Thus, under a Statute which made it felony for persons tumultuously assembled to de- molish a church or dwelling, they could not be con- victed if the demolition was done in the bona fide assertion of a legal right, though there was a riot in doing it(b). So, if a man cut down a tree or demolished a house standing on land of which he was in undisturbed possession, and believed himself to be the owner, he would not be punishable under Statutes which prohibited such acts in general terms ; though it turned out that his title was bad and that the property was not his(c). If he demanded goods with threats, bona fide believing that they belonged to him, he would not be guilty of robbery, though civilly liable (d). If he forcibly took a girl under sixteen from the custody of her guardian, in the . (a) See ex. gr. Lee v. Simpson, (c) R. v Burnaby, 2 Lord 3 CB. 871. Raym. 900. (6) R. v. Phillips, 2 Moo. C. (d) R. w Hale, 3. & P. 409. C. 235; 5. C. nom. R. » Lang- See also and comp. R. ». Crid- ford, Car. & M. 602. See R.v land,7 E. & B. 853, 27 LJ. MC. Badger, 6 E. & B. 13; sup. p. 287, and Morden v. Porter, 7 108. CB. NS. 641; 29 LJ. MC. 213. Digitized by Microsoft® MENS REA IN CRIMINAL LAW. 117 honest but mistaken belief that he was, himself, in- vested 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 as “unlawfully taking a girl under “sixteen out of the possession and against the will “of the person having the lawful 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 (b), and in ignorance or in contestation of the exclusive right of fishing in it claimed by another, would not be liable to conviction of “ unlawfully “and wilfully” fishing in the private fishery of another (c). On this principle may perhaps rest ‘the general rule of law that the jurisdiction given to justices of the peace, to try an offence summarily, is ousted when a claim of right or title is set up on reasonable grounds (d); though their duty in such cases is, not to acquit, but to forbear from adjudi- cating. But how far ignorance or erroneous belief of a fact which is essential to the offence is material, is a ques- tion which has given rise to some controversy and conflict of decisions. If, as it has been held, a person (a) R, v, Tinkler, 1 F. & F. 301, 32 LJ. 208. See sup. 107. 513. (d) Per Blackburn J. in White (b) Carter v. Murcot,4 Burr. v. Feast, LR. 7 QB. 358; Reece 2163, v. Miller, 51 LJ. MC. 64; 8 (c) R. v. Stimpson, 4B, & 8. QBD. 626. Digitized by Microsoft® 118 INTERPRETATION OF STATUTES. would not fall under the enactment which punishes the pursuit of game on the land of another without the consent of the owner, if he had the consent of the person whom he honestly and reasonably believed to be the owner (a), he would yet be liable to conviec- tion if he trespassed on land which he believed to be part of the property over which he had the license, but which was in fact the property of a different person (b). It seems that where the act done is one prim& facie or usually lawful, calling for no ex- planation or excuse, and is unlawful only under ex- ceptional circumstances, ignorance or erroneous belief regarding those circumstances, is to be regarded as establishing the absence of mens rea(c). Thus a man who takes a girl of fifteen to his house to cohabit with her, (an immoral but not unlawful act,) would not be guilty of taking her against the will of her parents or guardian, if he did not know of their existence (d). The Contagious Diseases (Animals) Act, and an Order in Council under it, which imposed a penalty on any person having in his possession an animal affected with a contagious disease, who did not give notice of it “with all practicable speed”. to a constable, (a) 1& 2Wm. 4,c. 32,8. 30; Id. 900; Legg v Pardoe, 9 CB. R. v. Cridland, 7 E. & B. 853... NS. 289; Barton v. R., 2 Moo. (6) Morden v, Porter, 7 CB. P.C. 19. NS. 641. . (d) R. v Hibbert, LR. 1 C.C. (c) See R. v. Speed, 1 Lord 184; R. v Green, 3 Fost. & F. Raym. 583; R. » Burnaby, 2 274, Digitized by Microsoft® MENS REA IN CRIMINAL LAW. 119 was held to apply only where the person knew that the animal was diseased (a). But here the only speed reasonably practicable could, reasonably, be comput- able only from when the knowledge was acquired. Where a railway Act which “for the better pre- “vention of accidents or injury which might arise” on the railway “from the unsafe and improper car- “riage of certain goods,” enacted that every person who should send gunpowder or similarly dangerous articles by the railway should mark or declare their nature, under a penalty enforceable by im- prisonment, it was held that guilty knowledge was essential to a conviction, and that an agent who had sent some cases of dangerous goods by a railway, without mark or declaration, not only in ignorance of their nature, but misinformed of it by his principal in answer to his inquiries, had not incurred the penalty ; on the ground that his ignorance, under ‘such circum- stances, proved the absence of mens rea (b) ; and yet he was under no legal duty to send the goods, and he might have refused to do so without actual inspection. A similar conclusion was come to where, although there was no knowledge, there were means of knowledge which were neglected. Under the 9 & 10 Wm. 3, c. (a) Nicolls » Hall, LR. 8 489, and Roberts v. Humphries, CP. 322; and see Core v. James, LR. 8 QB. 483, before the LR. 7-QB. 138, and Dickenson licensing Act of 1874. v, Fletcher, LR. 9 CP. 1. See (b) Heane v. Garton, 2 E. é& also Copley v. Brown, LR. 5CP. E. 66. Digitized by Microsoft® 120 INTERPRETATION OF STATUTES. 14, which after reciting that convictions for embezzling government stores were found impracticable, because direct proof of the immediate taking could rarely be made, but only that the goods were found in the pos- session 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). 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 tobacco in his possession, though ignorant of the adultera- tion (2). It may be doubted whether the literal con- (a) R. vw Sleep, 1 L. & C. 44; 30 LJ. MC. 170; R. a Wilmett, 3 Cox, 281; R. a Cohen, 8 Cox, 41. See Aberdare v, Hammett, LR. 10 QB. 162; also a case reported only in the Law Times, where a person “found in possession of the young of salmon,” in contraven-. tion of the Salmon Fisheries Act, 24 & 25 Vict. c. 109, s. 15, was held not liable to conviction, who, though he knew he was in possession, did not know the fish were salmon; Hopton » Thirlwall, 9 LT. NS. 327. (0) 5 & 6 Vict. c. 93; Rw Woodrow, 15 M. & W. 404. See also per Parke B. in Burnby ». Bollett, 16 M. & W. 644; RB. a Digitized by Microsoft® MENS REA IN CRIMINAL LAW. 121 struction of the language, enforcing vigilance for the protection of the public from danger or robbery, by ' visiting negligence (a) as well as misdeed with penal consequences, would not have been more in harmony with the intention, and have more completely promoted the object of the Legislature. On the other hand, where the act done is in its nature a breach of the law by the person who does it, and is divested of that character only when a certain fact exists, the person who does the act in ignorance of that fact, or in erroneous belief respecting it, cannot be said to do it innocently, and is not excused by his ignorance or mistake. Thus, a married woman who married a second husband would be guilty of bigamy, though she honestly believed that the first was dead (b). So, the offence of unlawfully taking a girl under sixteen out of the possession and against the will of her parents, would be committed, although the offender believed, from her appearance and assevera- tions, contrary to the fact, that she was older (c). If ignorance or mistaken belief in such cases disproved ‘the mens rea, a man indicted for burglary would be Trew, 2 Hast, P. C. 821; R. v overruling R. v Horton, 11 Dixon, 3M. & S. 11, 4 Camp. Cox, 145, 670. 12, (c) R. w Prince, LR. 2 C. C. (a) Comp. R. v Stephens, 154. See also R. ». Olifier, 10 and R, v. Walter, cited infra, Cox, 402; R. v. Mycock, 12 p. 125. Cox, 28; R. v. Booth, Id. 231 ; (b) 24 & 25 Vict. c. 100; Rv, Robins, 1 C. & K. 456. R, v Gibbons, 12 Cox, 237, Digitized by Microsoft® 122 INTERPRETATION OF STATUTES, entitled to an acquittal, on proof that when he broke into the house, he wrongly believed it was past 6 aM. (a). It was held, that an Act which punishes an assault on a police officer “in the execution of his duty,” was broken by a person who assaulted an officer so engaged in private clothes, ignorant that he was an officer (b). The offence of receiving two or more lunatics in an unlicensed house is committed, though the persons were received in the belief, based on reasonable grounds, that they were not lunatics (c). Under the special Act which empowered a gas com- pany to make the necessary works for its business, subject to a penalty if it should “ suffer any washings “to be conveyed or to flow” into any stream.or place, corrupting or fouling the water, the company was held liable to the penalty in a case where the washings per- colated through the bottom of its gas tank and polluted a well without the knowledge of its servants (d). There is another class of cases where the absence of mens rea does not control the language of a Statute; and that is where the offence has been committed in ignor- ance or misapprehension of the law, and the Statute prohibiting the act does not expressly make malice or wilfulness or other intent an essential element of the (a) Per Bramwell B. in R. », R. » Bishop, 5 QBD. 259. Prince, ubi sup. (d) Hipkins v. Birmingham (b+) 2 & 3 Vict. c. 47,818; Gas Co, 6 H. & N. 43, 30 LJ. R. v, Forbes, 10 Cox, 362. Ex. 60. (c) 8 & 9 Vict. c. 100, s. 44; Digitized by Microsoft® MENS REA IN CRIMINAL LAW. 123 offence (e). For instance, though a person in posses- sion of naval stores is not liable to conviction unless he knows that they bear the government mark, he would not escape on the ground that he did not know that the possession of such marked goods was pro- hibited. A man who unlawfully fished in a non-tidal river, or trespassed on land in search of game, would not escape conviction because he honestly believed that the public was entitled to fish or shoot there (a) ; such a right not being known to the law. An apprentice. who absented himself from his master’s service, did not escape the penal consequences by proving that he had done so in the honest though erroneous belief, found on his lawyer’s advice, that his indentures were void, and that he was consequently at liberty to leave his service (b). So, a cabman who persists in placing his cab on the premises of a railway company, after being requested to remove it, is penally liable for “wilfully trespassing and refusing to quit,” though he was under the persuasion, which was unfounded, (e) See Ellis v. Kelly, 6 H.& lotta, 1 Dods, 387. N. 222, 30 LJ. MC. 35; Daniel (0) 4 Geo. 4, ¢. 34,8.3 ; Cooper v, Jones, 2 CPD. 351. v. Simmons, 7 H. & N. 707, 31 (a) Hudson v. McRae, 4 B.& LJ. MC. 138, overruling Rider ». 8. 585, 33 LJ. MC. 65; Leath Wood, 29 LJ. MC. 1. See also v. Vine, 30 LJ. MC. 207; Har- Willett v. Boote, 6 H. & N. 26, _greaves v. Diddams, LR.10QB. 30 LJ. MC. 6; and Youle ». 582; Watkins v. Major, LR. Mappin, 30 LJ. MC, 234, 6 H. 10 CP. 662. Seealso The Char- & N, 753. Digitized by Microsoft® 124 INTERPRETATION OF STATUTES. that there existed a legal right to place his vehicle there (a). The principle that mens rea is essential to criminality is subject, in some classes of misdemea- nours, and especially in cases of libel and nuisance, to the more general one which makes a master respon- sible 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 em- ployer’s private advantage or profit, and not in the discharge of a public duty (b). In such cases, the act of the servant, though not in obedience, and even con- trary to his master’s orders, is yet 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) ; and a carrier, whose waggoner had carried (a) Foulger ». Steadman, LR. 8 QB. 65. Comp. Jones v. Tay- 281; Tobin a Reg., 33 LJ. 199, 204, 16 CB. NS. 310. See also lor, 1 E. & E. 20. (6) See the cases collected in Holliday v. St. Leonard, 11 CB. NS. 192, 30 LJ. 361; Hartnall v. Ryde Commissioners, 4 B, & S. 361, 33 LJ. 39; Ohrby v. Id, 5 B. & 8. 743, 33 LJ. 296; Coe v. Wise, 5 B. & 8. 440, 33 LJ. Davies v. Harvey, LR. 9 QB. 433; Stanley v Dodd, 1D. & R. 184. (c) R. v. Dixon, 3 M. &S. 11. See Parsons v. St. Matthews, LR.3 CP. 56; Wilson», Halifax, LR. 3 Ex. 114; Mullins » Collins, LR. 9 QB. 292. Digitized by Microsoft® MENS REA IN CRIMINAL LAW.. 125 in the carrier’s waggon game not sent by a qualified person (when the 5 & 6 Anne, c. 14, was in force), was held liable to conviction for carrying the game, though he was ignorant of the whole transaction (a). The owner of works carried on by his agents and workmen for his profit, was held indictable for a nuisance com- mitted by them in the course and within the scope of their employment, although they had, in committing it, acted against his orders (b). So, newspaper pro- prietors 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 (c). It has been said that the principal or master is liable in such cases, because he supplies the concern with the capital and reaps the profits (d). At all events, he carries on a business in which wrongful acts may be and even are apt to be committed by his agents and servants over whom he has absolute control, and whom therefore he can by the exercise of due diligence, prevent (a) R. v. Marsh, 2 B, & C. 717; but see per Brett J. in R. v. Prince, LR. 2 C. C. 162. (b) R.v. Stephens, 1 QB.792; and see Tuberville v. Stamp, 1 Lord Raym. 264, Carth. 425. (c) R. v. Walter, 3 Exp. 21; R. v. Gutch, M. & M. 443; R. vy. Cuthell, Erskine’s Speeches, Vol. 5. See Scarlett’s Argument in R. vw Burdett, given in his Life by his son, App. p. 321. As regards the present liability of newspaper proprietors, see 6 & 7 Vict. c. 96, s. 7, and R. v. Holbrook, 3 QBD. 60, 47 LJ. QB. 35. (d) Per Lord Tenterden in R. v. Gutch, ubi sup. Comp. The Newport, 10 Moo. 155. Digitized by Microsoft® 126 INTERPRETATION OF STATUTES, from doing wrongful acts; and his ignorance is the result of negligence. In this respect, indeed, it is remarkable that the criminal liability is more extensive than the civil (a). It is necessary, as regards mens rea, not to con- found a guilty mind in the legal sense of the expression, with a guilty conscience or evil intention. A statute which prohibited an act would be violated, though the act were done without evil intention, or even under the influence of a good motive. Thus, a man who sells an obscene publication is subject to the penalty imposed on that act by the 20 & 21 Vict. c. 83, although his object was not to deprave the mind of the reader, but to expose the tenets of a religious sect (b). The master of a ship who, under general instructions to complete his cargo on the best terms, traded with the enemy, would be guilty of the crime (c) of barratry, though he acted solely under the motive of serving his employer to the best advan- tage (d). A railway company which had suffered a weighing machine in its possession to continue out of repair for a fortnight, so that it indicated more than the true weight, was held to fall within the enactment which imposed a penalty for being found in possession (a) See per Byles J. in Parkes (c) Vallejo v. Wheeler, Cowp. v. Prescott, LR. 4 Ex. 182. 143. (6) R. v. Hicklin, LR. 3 QB. (d) Earle v. Rowcroft, 8 East, 360; Steele » Brannan, LR. 126. 7 CP. 261. Digitized by Microsoft® RESTRICTIONS OF OPERATION. 127 of a weighing machine incorrect or otherwise unjust ; although its servants had orders to make a due allow- ance for the defect, when using it (a). Sometimes, to keep the Act within the limits of its object, and not to disturb the existing law beyond what that object requires, it is construed as operative between certain persons, or under certain states of facts, or for certain purposes only, though the lan- guage expresses no such circumscription of the field of its operation, The Act of 1854, for instance, which required, among other things, that when a bill of sale was made subject to a declaration of trust, the declaration should be registered as well as the bill, on pain of invalidity against the assignee, in the event of execution or bankruptcy, was held to apply only to declarations of trust by the grantee for the grantor, but not to trusts declared by the grantee in favour of other persons; the object of the Act being only to protect creditors against sham bills of sale, and being completely attained by requir- ing the registration of the first-mentioned trusts ; while the registration of any others would have been foreign to the purposes of the Act (b). So, the pro- vision in the 8 & 9 Vict. c. 109, which, after making all wagers null and void, enacts that no suit shall be (a) 5&6 Wm. 4,c. 63,8.28; F. 191; Robinson v. Colling- Great Western R. Co. v. Bailie, wood, 34 LJ. CP. 18, 17 CB. 5B. & 8. 928, 34 LJ. MC. 31. NS. 777. See also Hodson ». (6) Hills ». Shepherd, 1 F.& Sharpe, 10 East, 350, Digitized by Microsoft® 128 INTERPRETATION OF STATUTES. maintained to recover money won on a wager or deposited to abide the event, is construed as only pre- venting a party to the wager from suing to recover his winning, but not to prevent him from suing the stakeholder to-recover his deposit (a). So, the general language of the Merchant Shipping Act of 1854, s. 299, which provides that, if damage should arise to person or property from non-observance of the sailing rules, it should be considered as the wilful default of the person in charge of the deck at the time, was confined by a due regard to the object in view, to the regulation of the rights of the owners of ships in cases of collision, and was therefore held not to affect the relations between the master and his owners, so as to make the former guilty of barratry, which would have been altogether foreign to the scope of the Act (b). The 16 & 17 Vict. c. 30, which, after reciting that it was expedient to make provision for preventing the vexatious removal of indictments into the Queen’s Bench, enacted that whenever a certiorari to remove one should be awarded at the instance of the prosecutor, he should enter into a recognizance to pay the costs if unsuccessful; and that if the recog- nizance was not entered into, the indictment should be tried in the Court below, was held to have no application to a prosecutor who removed an indict- ‘ment against a corporate body which was unable to (a) Hampden v, Walsh, 1. (8) Grills », The General Iron QBD.‘189 ; and see Bentley v Screw Co., LR. 1 CP. 600, 3 Elphick, 10 QBD. CP. 476. Digitized by Microsoft® RESTRICTION TO THE SUBJECT. 129 appear by attorney in the inferior Court. In sucha case, the removal of the indictment was a matter of necessity, not option, for it could not be tried by the inferior Court, since the defendant could not appear there ; and it would have been unjust to extend the provision to a case clearly beyond the scope of the Act, which, the preamble showed, was only to check vexatious removals (a). The enactment (16 & 17 Vict. c. 59, s. 19) which makes presentment of any draft on a banker payable to order or on demand, if purporting to be indorsed (though a forgery) by the payee, a sufficient authority to the banker to pay the amount, is in the same way limited in its effect, as in its object, to the relations between banker and customer; and does not prevent the latter from recovering his money from the person who received it (b). The 16th section of the Com- panies Clauses Consolidation Act, which provides that no shareholder shall be entitled to transfer any share after a call, until he has paid up all calls due on all his shares, is only a protection to the company, giving it a lien or charge upon the shares; but it does not affect the validity of a transfer as regards the cre- ditors of the company, if the company has assented to it (c). So, it has been held that the provisions of (a) R. v. Manchester, 7 E.& OP. 513. B. 453, See also Craven » (c) Littledale’s Case, LR. 9 Smith, LR. 4 Ex. 146. Ch, 257. (6) Ogden v Benas, LR. 9 Digitized by Microsoft® 180 INTERPRETATION OF STATUTES. a railway Act which place the management of the company’s affairs in the hands of a certain number of directors, were intended for the protection of the shareholders merely, and that it was not open toa stranger to object that they had not been complied with ‘a). The 158rd section of the Companies Act of 1862, which declares “void” every transfer of shares in a company which is being wound up, unless the Court otherwise orders, was held not to prevent a broker who had bought and paid for shares in a com- pany so situated from recovering from his principal the money so paid (6). In the same way, the Bankruptcy and Insolvency Acts, which, in clear and unequivocal terms vested in the assignee all the property, both present and future, of the bankrupt or insolvent, were held to establish the right of the assignee to the future property only as between himself and the bankrupt or insolvent ; but not to affect the right of the bankrupt or insolvent, as between himself and his debtor, unless the assignee interfered, to sue for a debt which accrued due after the vesting of the property in the assignee ; and the provision contained in the Acts that the bankrupt or insolvent should not have the power to recover such debts, was similarly limited in effect (c). The Bank- ruptcy Act of 1869, which enacts (sect. 23) that the (a) Thames Haven Co. » (c) Herbert v. Sayer, 5 QB. Rose, 4 M. & Gr. 552. 965; Jackson » Burnham, 8 (0) Chapman ». Shepherd, Ex. 173; Jameson » Brick Co., LR. 2 CP, 228, 4 QBD. 208. Digitized by Microsoft® RESTRICTION TO THE SUBJECT. 131 trustee in bankruptcy may disclaim any interest of the bankrupt, and that the property disclaimed is to be deemed surrendered on the day of the adjudication, was held to be limited to the relief of the bankrupt and the trustee in bankruptcy from liability ; but not to affect the rights and liabilities of the lessor and original lessee or underlessee (a). The 38th section of the Companies Act of 1867, which requires that every prospectus shall specify all contracts entered into by the company or by its promoters, before the issue of the prospectus, and declares every prospectus which does not specify them, fraudulent on the part of the promoters and directors who knowingly issued it, as regards persons taking shares, is, literally, wide enough to include every contract made by a promoter even regarding his own private affairs ; but it was limited in construction to the objects of the Act, which was the protection of shareholders. It was held, therefore, to include only such contracts as were calculated to influence persons in applymg for shares (b) ; but not to create any duty towards bondholders (c). So, the Stamp Acts, which enacted that unstamped documents should not be pleaded or given in evidence, or be available in law or equity, were held to mean only that such documents should be unavailable for the (a) Smyth ». North, LR. 7 (b) Twycross v. Grant, 2 CPD. Ex. 242; Exp. Walton, 17 Ch. 469. D. 746; E. and W. I. Dock Co. v. (c) Cornell v. Hay, LR. 8 CP. Hill, L. R. 22 Ch, D.14; 52 Ld. 44, 328, zQ Digitized by Microsoft® 182 INTERPRETATION OF STATUTES. purpose of recovering any debt or property ; but not to extend to cases where the validity of the document was impugned on the ground of fraud or illegality (a). So, the 30 Vict. c. 23, s. 7, which invalidates all con- tracts of sea assurance unless expressed in a policy, and (s. 9) prohibits pleading or giving in evidence any policy which is not stamped, does not prevent the ad- mission of the slip in evidence, on a collateral question of fraud or misrepresentation (b). In the same spirit, the operation of the Act 7 Anne, c. 12, which, with the view of securing the inviolability accorded to ambassadors by the law of nations, enacted that all processes whereby an ambassador or his servant might be arrested, or his goods seized should be null and void, was held not to extend beyond what might be ne- cessary for the protection of the rank, duties, and religion of the ambassador; and not to protect his servant, who rented a house, part of which he let in lodgings, from having his goods taken by distress for non-payment of a parochial rate. Such a house was not necessary for the servant’s residence merely ; and to extend the operation of the Act to such a case would have been to cover ground foreign to its scope and object (c). (a) R. v, Hawkesworth,1 TR. 308, 23 LJ. MC. 29. 450, 2 East, PC. 255; R. ». (2) Ionides », The Pacific In- Gompertz, 9 QB. 824; Ponsford surance Co., LR. 7 QB. 517. v. Walton, LR. 3 CP. 167. (c) Novello v, Toogood, 1 B. Comp. R. v. Overton, 1 Dears, & C. 554, Digitized by Microsoft® CHAPTER IV. SECTION I.—CONSTRUCTION TO PREVENT EVASION. Ir is the duty of the judge to make such construc- tion 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 (0). In fraudem legis facit, qui, salvis verbis legis, senten- tiam ejus circumvenit (c) ; and a statute is understood as extending to all such circumventions, and rendering them unavailing. Quando aliquid prohibetur, prohi- betur et omne per quod devenitur ad illud(d). When the acts of the parties are adopted for the purpose of effecting a thing which is prohibited, and the thing prohibited is in consequence effected, the parties have done that which they have purposely caused, though they may have done it indirectly (e). When the thing done is substantially that which was prohibited, (a) Magdalen College Case, (d) 2 Inst. 48. 11 Rep. 716. (e) Per Blackburn J. in Jef- (6) Bac. Ab, Statute J.; Com. fries v. Alexander, 31 LJ. Ch, Dig. Parlmt, R. 28. 148, 8 HL, 594. (c) 3 Dig. 1, 3, 29. Digitized by Microsoft® 134 INTERPRETATION OF STATUTES. it falls within the Act, simply because, according to the true construction of the statute, it is the thing thereby prohibited (a). Whenever Courts see such attempts at concealment, “they brush away the cobweb varnish,” and show the transaction in its true light(b). They see things as ordinary men do(c), and see through them. Whatever might be the form or colour of the transaction, the law looks to the substance of it (d). In all such cases, it is, in truth, rather the particular transaction than the Statute which is the subject of construction ; and if it is found to be in substance within the Statute, it is not suffered to escape from the operation of the law by means of the disguise under which its real character is masked. Thus, when the Usury Act was in force, it was said that if the contract really was an usurious loan of money, the wit of man could not find a shift to take it out of the Act(e) ; and accordingly, transactions which were ostensibly a sale of land(f), of goods (g), or of (a) Per Lord Cranworth in Philpott v. St. George’s Hospital, 6 HL. 338, 27 LJ. Ch. 72. (0) Per Wilmot C.J. in Collins v. Blantern, 2 Wils. 349. (c) Per Brougham in Warner v, Armstrong, 3 M. & K. 45, (d) Per Lord Tenterden in Solarte v. Melville, 1 Man. & Ry. 204. (e) Per Lord Mansfield in Floyer v. Edwards, Cowp. 114. (f) Doe w Gooch, 3 B. & A. 664; Doe » Chambers, 4 Camp. 1. (g) Floyer ». Edwards, ubi sup.; Davis »v. Hardacre, 2 Camp. 375; Harvey » Arch- bold, 3 B. & C. 626, Digitized by Microsoft® CONSTRUCTION AGAINST EVASION. 135 stock (a), ora lease (b), or an agency (c), or a partner- ship (d), when in reality usurious loans, were held to fall within the Act. So, if a contract be a wager in substance, no matter how the end is brought about, it would be void, though the object were ever so cunningly concealed in the form given to the trans- action (e). An Act which prohibited under a penalty the performance of plays without licence, would extend to a performance where the actors did not come ou the stage, but acted in a chamber below it, and their figures were reflected by mirrors so as to appear to the spectators to be on the stage(f). Lord Campbell’s Act, which requires, under certain circumstances, the insertion of a full apology in a newspaper, for a libel, would not be complied with, if the apology, however suitable in its terms, was printed in such type or in such a part of the paper as would be likely to escape the attention of ordinary readers(g). The (a) Tate v Wellings, 3 TR. 531; Boldero v Jackson, 11 East, 612; White v. Wright, 3 B. & C. 273. (2) Bedo »v. Sanderson, Cro. Jac. 440; Jestons v. Brooks, Cowp. 793. (c) Harris v. Boston, 2 Camp. 348. (d) Enderby v. Gilpin, 5 B. Moo. 571. (e) Grisewood » Blane, 11 CB. 538. Comp. Re Phillips, 30 LJ. Bkcy. 1; per Wilde B. in Jeffries v. Alexander, 8 HL. 594, 31 LJ. Ch. 13; Thacker ». Hardy, 4 QBD. 685. See Hig- ginson v. Simpson, 2 CPD. 289. (f) 6& 7 Vict. c. 68, 5. 2; Day v. Simpson, 18 CB. NS. 680, 34 LJ. MC. 149, (9) 6 & 7 Vict. c. 96, 8. 2; Lafone v. Smith, 3 H. & N. 735, 28 LJ. Ex. 33. Digitized by Microsoft® 136 INTERPRETATION OF STATUTES, Act of 1854 which required the registration of bills of sale of personal chattels, was held to extend to agreements for a bill of sale, constituting an equitable assignment (a). And where the grantor of a bill of sale of furniture remained in possession as the servant of the grantee, with leave to use the furniture as part of his salary, it was held that the grantee was not in possession by his servant, but that the grantor was in possession within the meaning, for the case was within the mischief, of the Act(b). The Acts which pro- tected the monopoly of the Bank of England by pro- hibiting bodies of more than six persons “ to borrow, “ owe, or take up money on their bills or notes, pay- “able at less than six months from the borrow- “ing,” were construed to make it illegal for such a body of bankers to accept a customer's bill at less than six months; for the effect of such a trans- action would admit of competition with the Bank of England by the issue of bills and notes(c). And they were also held to prohibit a joint stock bank (a) 17 & 18 Vict. ¢. 36; Exp. Mackay, LR. 8 Ch.643 ; Edwards v. Edwards, 2 Ch. D. 291 ; Bran- ton v. Griffets, 2 CPD. 212; Exp. Odell, 10 Ch. D. 76 ; but comp. Allsopp v. Day, 7H. & N. 457; Byerley v. Prevost, LR. 6 CP. 144; Marsden v. Meadows, 7 QBD. 80; Woodgate v. Godfrey, 5 Ex. D. 24. (6) Pickard v. Marriage, 1 Ex. D. 364; Exp. Lewis, LR. 6 Ch. 626. See another example in Stallard » Marks, 3 QBD- 412, (c) Anderson v. Bank of Eng- land, 3 Bing. N.C. 539. Digitized by Microsoft® CONSTRUCTION AGAINST EVASION. 137 from engaging with a foreign bank that their manager, who was not a partner, should accept the bills of the foreigy bank, and that they should provide funds for their payment(a). All such transactions were held to come more or less directly within the prohibition to “owe, borrow, or take up money on bills or note” (6). A tenant who covenanted not to assign his lease with- out his landlord’s licence, would be held to have broken his covenant by giving a warrant of attorney to con- fess judgment, if he gave it for the express purpose of enabling the judgment creditor to take the lease in execution; for this was, in effect and intention, an assignment of the lease (c). The transaction would be unobjectionable if divested of the intent to break the covenant (d). A similar warrant of attorney, given by an insolvent to enable a favoured creditor to take his goods in execution, would, in the same way, be with- in the provisions against fraudulent transfers of property (e). 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 (a) Boothy, Bank of England, 6B. &S. 314; 34 LJ. QB. 68. 7 C. & F. 509; Exp. Randleson, (e) Sharpe v. Thomas, 6 Bing. 1 Mont. & M. 86. 416; Croft v. Lumley, 6 HL. (b) Seealso O'Connor», Brad- 672, 27 LJ. QB. 321. See shaw, 5 Ex. 882. 32 & 33 Vict. c 71, s. 92; (c) Doe v Carter, 8 TR. 300. Exp. Griffiths, Ch. D. Feby. 15, (d) Id. 57. See Bills x. Smith, 1883. Digitized by Microsoft® 138 INTERPRETATION OF STATUTES. be enrolled within six months from its execution, and to take effect immediately, and without power of revo- cation or any reservation for the benefit of the donor, has frequently been the subject of such experiments. Thus, a bequest of money to the committee 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 consideration of land being given to a charity, which was substantially the same thing, So, if money were bequeathed to be laid out in building houses, where there was no land already in mort- main (b) to build them on, such a bequest would be construed as an indirect instruction to purchase land for the purpose (c). Where the owner of land, with the object of evading the statutes, executed a deed, which he kept concealed 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 (a) Atty.-Genl. » Davies, 9 1 Bro. C. C. 444n; and Prit- Ves. 535; andsee the judgment chard v. Arbouin, 3 Russ. 456. of Lord Cranworth in Philpott (c) Atty.-Genl. » Tyndall, v. St. George’s Hospital, 6 HL. Ambl. 614; Mather », Scott, 2 349. Keen, 172; Giblett v. Hobson, (>) Comp. Brodie v. Chandos, 3M. & K. 517. Digitized by Microsoft® CONSTRUCTION AGAINST EVASION. 139 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 (a). So, a settlement, under the Poor law, by renting a tenement, was not obtained where the renting was colourable or fraudulent (b). 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 (c) 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(d). 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 (e). Where a woman, after fail- (a) Jeffries v. Alexander, 8 389. HL. 594, 31 LJ. Ch. 9; and (d) Masters v. Child, 3 Salk, per Cur. in Attree ». Hame, 9 66; Tewkesbury ». Twyning, 2 Ch. D. 337, 47 LJ. 863; comp. Bott. 3; comp. R, v. Mattersey, Re Robson, 19 Ch. D. 156, 4B. & Ad. 211; R. v. Halifax, 51 LJ. 337. 2B. & Ad. 211; and BR » (b) R. v. Woodland, 1 TR. Birmingham, 8 B. & C. 29, 261; R. v. Tillingham, 1 B. & (e) Much Waltham v. Peram, Ad. 180; R. w St. Sepulchre, 2 Salk. 474; Westbury », Id. 934. Coston, Id. 532; R. vu. Great (c) See R. v. Astley, 4 Doug. Salkeld, 6 M. & S. 408. Digitized by Microsoft® 140 INTERPRETATION OF STATUTES. ing to obtain a bastardy order where she resided, removed to a neighbouring 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” (a). It would have been different if she had not removed: for the sole object of getting into another jurisdic- tion (0). On this general principle, the Courts have repeatedly refused to review by mandamus, or otherwise, the pro- ceedings of an inferior Court, if within its jurisdiction, when the writ of certiorari has been taken away (c). 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 (d). It is, however, essential not to confound what is (a) R. v. Myott, 32 LJ. MC. 138; R. v. Annandale, 3 TR. 382, 385. (6) R. v. Hughes, Dears. & B. 188 ; 26 LJ. MC. 133; Mas- sey v. Burton, 2 H. & N. 597 ; 27 LJ. Ex. 101. (c) R. v Yorkshire, 5 B. & Ad, 1003,-and 1A. & E, 563; R. v. Eaton, 2 TR. 472. (d) R. v. Bridgnorth, 10 A. & E. 66; Durant v. Withers, LR. 9 CP. 257. But comp. R. »v. Bridgewater, 3 TR. 550; R. Weobley, 2 East, 68; Hughes v. Chatham, 5 M. & Gr. 54; R. v. 8. Kilvington, 5 QB. 216. See Chinnery v. Evans, 11 HL. 115, and Harlock v. Ashberry, 19 Ch. D. 539; 51 LJ. 394. Digitized by Microsoft® CONSTRUCTION AGAINST EVASION. 141 actually or virtually prohibited or enjoined by the language, with what is really beyond the contempla- tion, though it may be within the policy, of the Act; for it is only to the former case that the principle under consideration applies, and not to cases where, however manifest the object of the Act may be, the language is not co-extensive with it(a). An Act of Parliament is always subject to evasion in this sense; for there is no 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 settlement on a year’s service (b). Where a testator after devising 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 instituted, 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 (a) See ex. gr. Etherington v. ({c )Philpott v. St. George’s Wilson, 1 Ch. D. 161; and Hospital, 6 HL. 338; Dent » Pender v. Lushington, 6 Ch. Allcroft, 30 Beav. 335, 31 LJ. D. 70, 46 LJ. 317. 211; and see Edwards ». Hall, (2) R. v. Little Coggleshall, 6 De G. M. & G. 84, 25 LJ. 6M. &S. 264; R. » Mursley, 82. 1 TR. 694. Digitized by Microsoft® 142 INTERPRETATION OF STATUTES. again, where a testator 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 (a). It is not evading an Act to keep outside of it (0). 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 for his customers close to his shop ; the intention making it, substantially and in effect, a sale for consumption on the premises (c) ; a mere sale through a window, to a person who stood on the road outside, would not be an evasion, though the buyer drank the beer immediately on receiving it(d). The occupier of a field adjoining a turnpike does not evade, though he avoids payment of toll, by making a semi- circular road between two gaps in his hedge, one on each side of the toll bar, and driving by it instead of along that part of the highway which forms its (a) Wallgrave v. Tebbs, 2 K. (c) Cross » Watts, 32 LJ. & J. 313, 25 LJ. 241. CP. 73, 13 CB. NS. 239. See (b) See per Lord Selborne in also Brigden v. Heighes, 1 QBD. Macbeth v. Ashley, LR. 2 Se. 330. App. 359. See ex. gr. Shepherd (d) R. v Schofield, LR. 3 QB. v. Hall, 3 Camp. 180; King». 8; Bath » White, 3 CPD. 175. Low, 3 C, & P. 620. Digitized by Microsoft® CONSTRUCTION AGAINST EVASION. 143 chord (a). Nor does a ship-owner evade harbour dues charged on goods landed in it, by landing his goods a few yards outside the boundary of the harbour (6). An enactment which imposes a duty on legacies would not extend to a gift to take effect on the donor’s death, made by a deed which contained a power of revoking the gift; though such a gift has all the essential incidents of a legacy (c). A statute which im- poses a tax, indeed, is always construed strictly ; but this decision shows that if the law closes only one of two doors, it is no evasion of it to use the other, which it has left open. So, the enactment that the sheriff shall retain for fourteen days the proceeds of goods sold in execution when exceeding 501., and, if he receives notice of the debtor’s bankruptcy, shall pay them to the trustee in bankruptcy, would not prevent a creditor for more than 501. from signing judgment for less than that amount, though he did so avowedly to escape from the operation of the Act(d). An agreement that the rent of demised premises should be reduced when and as soon as the income tax was abolished, was held not to fall within the prohibition in the Income tax Act, of all contracts binding the tenant to pay the income tax without deducting it (a) Harding v. Headington, (c) Tompson v, Browne, 3 LR. 9 QB. 157; Veitch v.Exeter, M. & K. 32. 8 E. & B, 986. (d) 32 & 33 Vict. c. 71, 8. 87 ; (8) Wilson v, Robertson, 4 E. Exp. Reya, 6 Ch. D. 332. See & B, 923, 24 LJ. 185. Exp. Abbott, 15 Ch. D, 447. Digitized by Microsoft® 144 INTERPRETATION OF STATUTES. from his rent (a). A railway company, prevented from raising money by loan, may yet procure money by a sale of a portion of its rolling stock for the sum which it requires, retaining the stock by hiring it for a term, on payment of an annual sum which repays the purchase-money with interest (6). A warrant of attorney which authorized the issue of a writ of sequestration on a rectory as often as an annuity granted by the incumbent was in arrear, would be invalid ; for this would amount to a charging of a benefice to pay the annuity, contrary to the Act of the 13 Eliz. c. 20(c). But where the warrant of attorney purported to be merely to secure the payment of an annuity mentioned in a bond which had been given for its payment, the Court refused to set aside | the judgment entered up on the warrant, as it was not a charging of the benefice ; although it appeared, by affidavit, that the object of the parties was, that the judgment should enable the annuitant to obtain a sequestration of the grantor’s living, if the annuity should fall into arrear(d). The Act which required that all bills of sale of personal chattels should be regis- (a) Colbron v Travers, 12 Ad. 673; Saltmarshe v, Hewett, CB. NS. 181, 31 LJ. 257; 1A. & EB 812. Davies v. Fitton, 2 Dru. & War. (d) Colebrook v. Layton, 5 B, 225. & Ad. 578. Comp. Doe ». Carter, (0) Yorkshire RailwayWagon 8 TR. 300, and Jeffries v. Alex- Co. v. Maclure, 21 Ch. D. 309. ander, 8 HL, 594, sup. pp. (c) Flight » Salter, 1 B. & 137, 139. Digitized by Microsoft® CONSTRUCTION AGAINST EVASION, 145 tered within twenty-one days from execution, on pain of being void against creditors, was held not to inva- lidate an arrangement by which a fresh bill of sale was to be given’ every twenty-one days, and none were to be registered until the debtor got into diff- culties, Although such an arrangement was considered to be detrimental to the interests of the revenue, and to be calculated to defeat and delay creditors, and so was contrary to the general policy of the Act, since it left the debtor apparently the owner of property which he had transferred; it was held not to be prohibited by its language, and the last bill of sale, which was duly registered, was held valid against an execution creditor (a). It has been found necessary to suffer an evasion or breach of an Act, where intolerable inconvenience would otherwise result. Though the 33 & 34 Vict. ¢. 97, s. 17, enacts that no document which is not properly stamped shall be receivable in evidence, and (s. 54) that a person who receives a bill of exchange or cheque not duly stamped cannot recover upon it, or make it available for any purpose whatever ; it has been held that if the cheque sued upon has a stamp sufficient on its face, the fact that it was post dated to the know- ledge of the holder, and so was not sufficiently stamped, did not affect its admissibility in evidence; on the (a) Smale v, Burr, LR, 8CP. LR. 20 Eq. 786; Ramsden ». 64; QB..17; comp. Exp.Cohen, Lupton, LR. 9. LR. 7 Ch, 20; Exp. Stevens, Digitized by Microsoft® 146 INTERPRETATION OF STATUTES. ground that a different decision would have introduced the greatest difficulty in the administration of justice, involving an interruption of the trial by collateral inquiries as to facts accompanying the giving of the instrument (a), SECTION IV.—CONSTRUCTION TO PREVENT ABUSE OF POWERS. On the same general principle, enactments which confer powers are so construed as to meet all attempts to abuse them, either by exercising them in cases not intended by the statute, or by refusing to exercise them when the occasion for their exercise has arisen (b). Though the act done was ostensibly in execution of the statutory power, and within its letter, it would nevertheless be held not to come within the power, if done otherwise than honestly, and in the spirit of the enactment. For instance, the power given by modern Bankrupt Acts to a majority of creditors to make arrangements with their debtor, which are made by statute binding on the non-assenting minority, would not be validly exercised so as to have this binding effect, if the conduct of the majority were tainted with fraud ; or even if, from motives of benevolence, the majority had agreed to a composition disproportioned (a) Gatty v Fry, 2 Ex. D. Clarke v. Roche, 3 QBD. 170. 265. See per Blackburn J. in — (6) See per Turner LJ. in Austin v. Bunyard, 6 B. & 8S. Biddulph w. St. George’s Vestry, 687, 34 LJ. 217, But comp. 33 LJ. Ch, 411. Digitized by Microsoft® TO PREVENT ABUSE OF POWERS. 147 to the assets(a). So, the creditor who votes for a composition with his debtor under the 126th section of the Bankruptcy Act of 1869, is bound to vote bond fide for the benefit of the creditors; and if it appears that he gave his vote for the benefit of the debtor, and not for that of the creditors, it would be rejected (b). Malpractice by the debtor in obtaining a single vote suffices to vitiate a creditors’ resolution for liquidation by arrangement under the Bankruptcy Act of 1869 (c). Where, as in a multitude of Acts, something is left to be done according to the discretion of the authority on whom the power of doing it is conferred, the dis- cretion must be exercised honestly and in the spirit of the statute, otherwise the act done would not fall within the statute. ‘According to his discretion,” means, it is said, according to the rules of reason and justice, not private opinion (d) ; according to law and not humour; it is to be, not arbitrary, vague and fanciful, but legal and regular (e) ; to be exercised not capriciously but on judicial grounds and for substantial (a) Exp. Cowen, LR. 2 Ch. (c) Re Baum, 7 Ch. D. 719; 563; see per Lord Cairns, 570; 47 LJ. 48. Exp. Russell, LR. 10 Ch. 255 ; (d) Rooke’s Case, 5 Rep. 100a; Re Page, 2Ch. D,323; ReTerrell, Keighley’s Case, 10 Rep. 140a; 4 Ch. D. 293; Exp. Aaronson, 7 Lee v. Bude R. Co., LR. 6 CP. Ch. D. 713; Exp. Ball, 51 L. J. 576, per Willes J. Ch, 911; Exp. Russell, Ch. D. (e) Per Lord Mansfield in R. Feb. 1883. v. Wilkes, 4 Burr, 2839. (b) Exp. Cobb, LR. 8 Ch. 727. L2 Digitized by Microsoft® 148 ‘INTERPRETATION OF STATUTES. reasons(a). And it must be exercised within the limits to which an honest man competent to the dis- charge of his office ought to confine himself (b); that is, within the limits and for the objects intended by the legislature. Thus, itwas long ago settled that the power given by the 43 Eliz. tothe overseers of parishes to raise a poor rate by taxation of the parishioners in such compe- tent sums as they thought fit, did not authorize an arbitrary rate on each parishioner, but required that the rates should be equal and proportionate to the means of the contributors (c). So, the Highway Act, 5 & 6 Will. 4, c. 50, which provided that if any com- plaint was made against the road surveyor’s accounts, the justices at special highway sessions should hear it, and “make such order thereon as to them should seem “‘meet,” would not authorise them to allow illegal expenses, such as a charge for the use of the surveyor’s horses, contrary tv section 46, which are expressly forbidden to be incurred at all(d). So, overseers, who are required by the 3 & 4 Vict. c. 61, to certify (a) Per Jessel M.R. in re Marshall v, Pitman, 9 Bing. Taylor, 4 Ch. D. 160; and per 601. See Jones v, Mersey Docks, Lord Blackburn in Doherty » 385 LJ. MC. 1; 11 HL 443; Allman, 3 App. 728. and Whitchurch » Fulham (6) Per Lord Kenyon in Wil- Board, LR. 1 Q.B. 233, 35 Li. son v. Rastall,4 TR. 757; R.v. 145. Audley, Salk. 526; R. ». Wavell, (d) Barton » Pigott, LR. 10 Doug. 115. QB. 86, 44 LJ. MC. 5. (c) Early’s Case, Bulstr. 354 ; Digitized by Microsoft® TO PREVENT ABUSE OF POWERS. 149 whether applicants for beer licences are real residents and ratepayers of the parish, are not entitled to refuse the certificate on the ground that in their opinion there are already too many public-houses, or that the beer- shop is not required. They have no right to shut their eyes to the facts, and to refuse to certify, when they are satisfied that the applicant possesses the quali- fications required by the Act(a). Under an enact- ment that no licence should be refused by justices except on one or more of four specified grounds, it was held that justices, in refusing, were bound to state on which of the grounds they based their refusal, as otherwise they might, in abuse of their powers, refuse on other grounds than those to which they were limited (0). Where the discretion has been settled by practice, this should not be departed from without strong reason (c). But if a statute confers a power, with the intention that its exercise shall be subject to the dis- cretion 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 discre- tion in each case, and would not be entitled to govern (a2) R. ». Withyam, 2 Com. R. v Sykes, 1 QBD. 52. Exp. Law Rep. 1657; comp. Rw Smith, 3 QBD. 374. Kensington, 12 QB. 654. (c) 2 Inst. 298. See R. w (0) 32 & 33 Vict. c. 27,8.8; Chapman, 8C. & P. 558. Digitized by Microsoft® 150 INTERPRETATION OF STATUTES. itself by a general resolution, or rule of practice, to give nominal costs in all cases(a); for this would be in effect to repeal the provision ‘of the Act. So, a licensing Act, which empowered justices to grant licences to innkeepers and others, to sell liquors, as in the exercise of their discretion they deemed proper, would not justify a general resolution to refuse licences to all persons who did not consent to take out an excise licence for the sale of spirits, in addition to the licence for the sale of beer (0). So, where a similar Act, after fixing the hours within which intoxicating liquors might be sold, authorised tke 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 (c). 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 bond fide exercise of their judg- ment, what particular localities required other hours for opening and closing, than those specified ; and they (a) R. v Merioneth, 6 QB. (b) RB. v. Sylvester, 2 B. & S. 163; R. v. Glamorganshire, 1 322, 31 LJ. MC. 93; RB. ». L. M. & P. 336; comp. Freeman Walsall, 3 Com. L. R. 100. v. Read, 9 CB. NS. 301, 30 LJ. (c) Macbeth v Ashley, LR. MC. 123. 2 Sc. App. 352. Digitized by Microsoft® TO PREVENT ABUSE OF POWERS. 151 were bound to satisfy themselves that the special cir- cumstances of the particular locality, which they took out of the general rule laid down by Parliament, required that the exception should be made (a). The statute had laid down a general rule, and permitted an excep- tion; but here the exception had swallowed up the rule; and that which might fairly have been an exer- cise of discretion, became no exercise of the kind of discretion meant by the Act (0). (a) See the judgment of Lord (b) Per Lord Cairns, LR. 2 Selborne, Id. 359. Sc. App. 357, Digitized by Microsoft® CHAPTER V. SECTION I.—PRESUMPTIONS AGAINST OUSTING HBSTA- BLISHED, AND CREATING NEW. JURISDICTIONS. Ir is, perhaps, on the general presumption against an intention to disturb the established state of the law, or to interfere with the vested rights of the subject (a), that the strong leaning now rests against construing a statute as ousting 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 emoluments depended mainly on fees (0). It is supposed that the legislature would not make so important an innovation, without a very explicit ex- pression 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 jurisdic- (a) See Jacobs 2 Brett, LR. Tredwen v. Holman, 1 H. & C. 20 Eq. 1. 72, 31 LJ. 398; Edwards ». (6) Per Lord Campbell in Aberayon Insurance Co., 1 QBD. Scott v. Avery, 5 HL. 811, 563; Dawson » Fitzgerald, 1 25 LJ. Ex. 308. So in con- Ex. D, 257. struing contracts, Scott ». Avery; Digitized by Microsoft® PRESUMPTION AGAINST OUSTING JURISDICTION. 1538 tion 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(a). Nor would that Court be ousted of its preventive jurisdiction to stop by injunction the misapplication of poor rates, by the power given to the poor law com- missioners by statute to determine the propriety of all such expenditure (b). It did not follow in either case, that because authority was given to the commissioners, it was taken away from the Court. Acts which give justices and other inferior tribunals jurisdiction in certain cases, not only 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 such tribunals ; but they are even strictly construed when their language is doubtful. Thus, enactments to the effect that “no Court shall intermeddle” in the cases (c), or that the case shall be “heard and finally “ determined” below (d), would not be construed as (a) 43 Geo, 3,¢. 99; Shaftes- v, Whitmore, 1 Hem. & M. 576, bury v. Russell, 1B. & C.666; 2 De Gex. J.& 8. 297, 33 LJ. see also Rochdale Canal Co. » 713. King, 14 QB. 122. (c) R. 2 Moseley, 2 Burr. (6) Atty.-Genl. », Southamp- 1011. ton, 17 Sim. 6. See Birley v. (d) R. v. Plowright, 2 Mod. Chorlton, 3 Beav. 499; Smith 95; 2 Hawk. P. C. c, 27, 8. 23, Digitized by Microsoft® 154 INTERPRETATION OF STATUTES. prohibiting such interference ; and enactments which expressly provide that such proceedings shall not be removed by certiorari to the Superior Court have no application 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 en- trusted to the lower jurisdiction ; or where the party who obtained the order, obtained it by fraud (c). The saying has been attributed to Lord Mansfield that nothing but express words can take away the jurisdiction of the Superior Courts (d); but it may certainly be taken away also by implication (¢). 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 See Jacobs v. Brett, LR. 20 Eq. 1; Chambers v. Green, Id. 552; Hawes v. Paveley, 1 CPD. 418; Bridge v. Branch, Id. 633; Oram v. Brearey, 2 Ex. D. 346. (a) R. v, Derbyshire, 2 Ken. 299; R. v. Somersetshire, 2 B. & C. 816; R. v St. Albans, 22 LJ. MC. 142, R. v Wood, 5 E. & B. 49; RB. v. S. Wales R. Co., 13 QB. 988; Penny w S. E. R. Co., 7 E. & B. 660, 26 LJ. QB. 225; R. «1 Hyde, 7 E. & B. 859, 21 LJ. MC. 94; Exp. Bradlaugh, 9 QBD. 509; 47 LJ. 105. (b) R. v, Cheltenham, 1 QB. 467. (c) R. » Cambridge, 4 A. & E. 121, per Lord Denman ; R. Gillyard, 12 QB. 527; Colonial Bank »v Willan, LR. 5 PC. 417. (d) R. v Abbot, Doug. 553. (e) Per Ashurst J., in Cates v, Knight, 3 TR. 442, and Ship- man v. Henbest, 4 TR. 116; per Jessel M.R. in Jacobs ». Brett, LR. 20 Eq. 6; per Pollock Digitized by Microsoft® AGAINST OUSTING JURISDICTION. 155 Courts over such disputes (a). It is obvious that the provision, from its nature, would be superfluous and useless, if it did not receive a construction which made it compulsory, and not optional, to proceed by arbitration. On similar grounds it was held that no action lay in the Superior Courts on a County Court judgment. The provisions made by the County Court Act for enforcing such judgments would have been defeated, if the jurisdiction of the Superior Courts to entertain such an action had not been ousted (0). Where an Act vested in the trustees of a loan society all its money and effects, and the right of bringing and defending actions touching the property and rights of the society, and, after enabling them to lend money under certain circumstances, and to take notes for such loans in the name of their treasurer for the time being, to secure repayment, authorised a justice, at the suit of the treasurer, to enforce pay- ment by distress ; it was held that the treasurer was B. in Oram »v. Brearey, 2 ExD. 348, vestment Soc. 5 ChD. 726; Huckle v. Wilson, 2 CPD. 410. (a) Crisp v. Bunbury, 8 Bing. 394; and see Marshall »w Nichols, 18 QB. 882, 21 LJ. QB. 343; Boyfield » Porter, 13 East, 200; Exp. Payne, 5 D. & L. 679; Armitage v. Walker, 2K. & J. 211; Reeves v. White, 17 QB. 995, 21 LJ. 170; Wright v Monarch In- Comp. Rochdale Canal ». King, 14 QB. 122. (6) 9 & 10 Vict. c« 95; Berkeley v. Elderkin, 1 E. & B. 805; see Austin v Mills, 9 Ex. 288; Moreton w Holt, 10 Ex. 707. Comp. Edwards ». Coombe, LR. 7 CP. 519. Digitized by Microsoft® 156 INTERPRETATION OF STATUTES. limited to that remedy (a). He had no rights but such as the Statute gave him, and therefore could not sue except in the manner directed (b). But another Court held that the trustees might sue on such notes in the Superior Courts (c), Where an Act imposed penalties and took away the certiorari ; and a subse- quent one, after increasing the penalties and extend- ing the restrictions 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 affectual for carrying out the latter Act as if re-enacted in it; it was held that the clause which took away the certiorari was incorporated in the new Act, and consequently that the jurisdiction of the Superior Courts was ousted (d). 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 is prescribed, there is no ouster of the jurisdiction of the ordinary courts, for they never had any. Thus, where an Act created penalties of 507. and 10/.; and, after enacting that the former should be recovered in the Superior Courts, authorised justices to impose the latter, with powers of mitigation; it was held that the Superior (a) See also Dundalk R. Co, 10 CP. 679. v. Tapster, 1 QB. 667. Comp. (c) Albon v Pyke, 4M. & Mulkern v. Lord, 4 App. 182. Gr. 421. (b) Timms v, Williams, 3 QB. (d) R. » Fell, 1 B. & Ad 413; Prentice v. London, LR. 380. Digitized by Microsoft® AGAINST OUSTING JURISDICTION. 157 Courts had no jurisdiction in respect of the lower penalty (a). Where it was enacted, by the Metro- polis Management Act, that the owners of the houses which formed a street should pay the vestry the estimated cost of paving it, and that the amount should, in case of dispute, be ascertained by, and re- covered before justices; it was held that the pecu- niary obligation and the mode of enforcing it were so indissolubly united, that no action lay against a householder for his contribution (0). The Nuisances Removal Act, 11 & 12 Vict. c, 128, which enacts that if the owner of the offensive pre- mises does not remove the nuisance, the guardians may do so, and that the costs and expenses incurred by them shall be deemed money paid for the use of the owner, and may be recovered as such by them in the County Court, or before two justices, was held to give exclusive jurisdiction to those tribunals (c). But where the Act directs that the new offence which it creates shall be tried by an inferior Court according to the course of the common law, the in- ferior Court tries it as a common law Court, subject to (a) Cates v. Knight, 3 TR. NS. 477, 26 LJ. CP. 243. See 442. Comp. Shipman v. Hen- also Blackburn». Parkinson, best, 4TR. 109; Leigh v. Kent, 125. & E. 71, 28 LJ. MC. 7. 3 TR. 362; Balls v. Attwood, (c) Hertford Union v, Kimp- 1H. BL. 546. ton, 11 Ex. 295, 25 LJ. MC. (6) 18 & 19 Vict. «. 120; 41, St. Pancras v. Batterbury, 2 CB. Digitized by Microsoft® 158 INTERPRETATION OF STATUTES, all the consequences of common law proceedings, 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). .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 improbable that it would create a new juris-. diction with less explicitness ; and therefore a con- struction which would impliedly have this effect is to be avoided ; especially when it would have the effect of depriving the subject of his freehold, or of any common law right, such as the right of trial by jury, or of creating an arbitrary procedure (b). It has been said that the words conferring such a jurisdiction must be clear and. wunambiguous(c); and that an inferior Court is not to be construed into a juris- diction (d). .An Act, for instance, which in providing that compensation should be made to all who sus- tained damage in carrying out certain works, enacted (a) Per Lord Mansfield in per Best C.J. in Looker v. Hal- Hartley ». Hooker, Cowp. 524, comb, 4 Bing. 188. See R. » (6) Warwick v, White, Bunb. Cotton, 1 E. & E. 203; Exp. 106; Kite and Lane’s Case,1B. Storey, 3 QBD. 166. & C. 107, per Lord Tenterden ; (c) Per Keating J. in James R. v Baines, 2 Lord Raym. v.S.E. BR. Co, LR. 7 Ex. 296. 1269, cited by Lord Denman, in (d) Per Fortescue J. in Pierce Fletcher v. Calthrop, 6 QB. 891; v Hopper, 1 Stra. 260. Digitized by Microsoft® AGAINST CREATING NEW JURISDICTION. 159 that “in case of dispute as to the amount,” it should be settled by arbitration, 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 dis- pute (a). However, 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. Thus, an Act which, without expressly empowering any tribunal to try the offence, imposed penalties on any person who exposed diseased animals for sale, unless he showed “to the justices “‘ before whom he is charged,” that he was ignorant of the condition of the animals, and gave him an appeal if he felt aggrieved “ by the adjudication of justices,” was construed as plainly giving justices jurisdiction over the offence (). A recent enactment has been considered as grant- ing jurisdiction by implication, 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 authorising the Queen in council to confer such jurisdiction on any of those (a) R. v. Metrop. Com. Sewers, 7 QB. 416; Johnson » Colam, 1E. & B. 694, 22 LJ. 234. LR. 10 QB. 544. See Stable v. Comp. Bradley v. Southampton Dixon, 6 East, 163; R. v St. Board, 4 E. & B. 1014, 24 LJ. James, Westmr., 2 A. & E. 241; 239; R.v. Burslem Board, 1 E.R. v. Worcestershire, 3 E. & B. & E. 1077, 29 LJ. 242. 488, 23 LJ. MC, 113. (b) Cullen v Trimble, LR. Digitized by Microsoft® 160 INTERPRETATION OF STATUTES, 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 Ad- miralty, where the amount claimed exceeded 3001, 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 (32 & 33 Vict. ¢. 51)), the County Courts on which Admiralty jurisdiction had been thus conferred, were further authorised to try any claim arising out of any agree- ment made in relation to the use or hire of any ship, or in relation to the carriage of any goods in any 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 anomaly of dealing with small cases on ‘different principles of law from large ones; while the apparent object of the enactments was merely to distribute the existing Admiralty jurisdiction (a). (a) See the Alina, 5 Ex. D. the cases there cited. See also 927 ; Everard v. Kendall, LR. Smith v, Brown, LR. 6 QB. 729 ; 5 CP. 428; Simpson v Blues, The Dowse, LR. 3 A. & E. 135; LR. 7 CP. 290; Gunnestad v Allen v, Garbutt, 6 QBD. 165, Price, LR. 10 Ex. 65; Gaudet 50 LJ. 141. vy, Brown, LR. 5 PC. 134, and Digitized by Microsoft® CONSTRUCTION AS REGARDS THE CROWN, 161 SECTION II.—-THE CROWN NOT AFFECTED IF NOT NAMED. On probably similar ground rests the rule com- monly stated in the form that the Crown is not bound by a Statute unless named in it. It has been said that the law is prima facie presumed to be made for subjects only (a); at all events, the Crown is not reached except by express words, or by necessary implication, in any case where it would be ousted of an existing prerogative or interest (b). It is presumed that the Legislature does not intend to deprive the Crown of any prerogative, right or property, unless it expresses its intention to do so in explicit terms, or makes the inference irresistible. Where, therefore, the language of the Statute is general, and in its wideand natural sense would divest or take away any pre- rogative or right from the Crown, it is construed so as to exclude that effect (c). Thus, the compulsory clauses of Acts of Parliament, which authorise the taking of lands for railway or other purposes, such as are contained in the Lands Clauses Act of 1845, would (a) Willion». Berkley, Plowd. Ayscough’s Case, Cro. Car. 526 ;. 236; per Cur. in Atty.-Genl. ~ Huggins v, Bambridge, Willes, Donaldson, 10 M. & W. 117., 241; R. vu Wright, 1 A. & E. (5) Inst. 191, Atty.-Genl. » 437, Allgood, Parker, 3; Bac. Ab. (c) Bac. Ab. Prerog. E. 5; Prerogative, E. 5 (c) ; Co. Litt. Crooke’s Case, Show. 208. 43b.; Chit. Prerogative, 382 ; M Digitized by Microsoft® 162 INTERPRETATION OF STATUTES. not apply to Crown property, unless made so applicable in express terms or by necessary inference (a). Again, as it is a prerogative of the Crown not to pay tolls or rates, or other burdens in respect of property, it was long since established that the Poor Act of Elizabeth, which authorises the imposition of a poor-rate on every “inhabitant and occupier” of property in the parish, did not apply to the Crown, or to its direct and imme- diate servants, whose occupation is for the purposes of the Crown exclusively, and so is, in fact, the occupation of the Crown itself(b). Thus, property occupied by the servants of the State for public purposes, as the Post Office (c), the Horse Guards (d), the Admiralty (e), and even by local police (f), by the judges, as lodgings at the assizes (g), by a county court (A), or for a jail (2), (a) 8 Vict. c. 18; Re Cuck- 360. field Board, 19 Beav. 153, 24 LJ. Ch. 585. (b) 43 Eliz. c. 2. Per Lord Westbury and Lord Cranworth in Mersey Docks Co. v. Cameron, 11 HL, 443, 35 LJ. MC. 22, 25; Amherst v. Somers, 2 TR. 372; R. v. Harrowgate, 15 QB. 1012; R. v. St. Martin’s LR. 2 QB. 493. (c) Smith v». Birmingham, 7 E. & B, 483. (d) Amherst v, Somers, 2 TR. 272; R.v. Jay, 8E. & B. 419. (ce) R. v. Stewart, 8 E. & B. (7) Lancashire v, Shelford, E. B. & E, 230. (g) Hodgson »v, Carlisle, 8 E. & B. 230. (h) R. v. Manchester, 3 E. & B. 336. (c) R. w Shepherd, 1 QB. 170; Beds v, St. Paul, 7 Ex. 650. See the judgments of Blackburn J. and Lord Cran- worth in Mersey Docks Co. a. Cameron, 11 HL. 443, 35 Ld. MC. 10; Leith Comm. ». Poor Inspectors, LR, 1 Se. Ap. 17. Digitized by Microsoft® CONSTRUCTION AS REGARDS THE CROWN. 163 or reformatory school (a), or by the commissioners of public works and buildings in respect of a toll-bridge of which they were in occupation as servants of the Crown (b), was held exempt from poor-rate(c). And property in the occupation of the Sovereign would, also, not be liable to the common law burden of church rates or sewer’s rate ; one reason assigned being that they could not be enforced (d). So, the Royal Dock- yards at Deptford were held not assessable to the land tax(e). But if the tax attached to the land, and not to its owner or occupier, this rule would not be applicable ; and land charged with it in the hands of a subject, would not become exempted on vesting in the Sovereign (/). On the same general principle, the numerous Acts of Parliament which have, at various times, taken away the writ of certiorari, have always been held not to apply to the Crown(g). So, the 13 Geo. 2, c. 18, (a) Shepherd v. Bradford, 16 CB. NS. 369, 33 LJ. MC, 182. (d) Per Dr. Lushington in Smith v. Keats, 4 Hage. 279; See Bro. Ab. Prerog. du Roy, 112; King v. Cook, 3 TR. 519 ; Westover v. Perkins, 2 E. & KE. 57, 28 LJ. MC. 227. (6) R. v. McCann, LR. 3 QB. 677. (c) Comp. Bute v. Grindall, 1 TR. 338; R. v Ponsonby, 3 QB. 14; R. v. Shee, 4 QB. 2; R. v, Stewart, 8 E, & B. 360. Atty.-Genl. v, Donaldson, 10 M. & W. 117. (e) Atty.-Genl. v. Hill, 2M. & W. 160. (f) Colchester v. Kewney, LR. 1 Ex. 368, (g) See ex. gr. R. v, Cumber- land, 3B. &P. 354; R. v. Allen, 15 East, 333; R. v Boultbee, 4A, & E. 498, M2 Digitized by Microsoft® 164 INTERPRETATION OF STATUTES. s. 5, which limits the time for issuing that writ to six months from the date of the conviction (a), and the 12 & 18 Vict. c. 45, s. 5, which authorises the Quarter Sessions to give costs to the successful party in any appeal (b), do not apply to the Crown, (the prosecutor), but only to the defendant. On the same ground, it would seem, the 4 Anne, c. 16, s. 4, which authorised a “defendant or tenant,” with the leave of the Court, to plead several matters, was held not to extend to defendants in suits by or on behalf of the Crown (c); 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 (d). The Statutes of Limita- tion (¢) and Bankruptcy (f) have always been held not to bind the Crown ; so, also, the Debtors Act of 1869 (g), and the 5 & 6 Hd. 6, c. 16, against the sale (a) R. vw Farewell, 2 Stra. 1209; R. wv James, 1 East, 303n; R. w Berkeley, 1 Ken. 80. (b) R. v. Beadle, 26 LJ. MC. 111,7E. & B, 492. (c) Atty.-Genl. v Allgood, Parker, 1 ; Atty.-Genl. v. Donald- son, 7 M. & W. 422, 10M. & W. 117; R. v, Abp. of York, Willes, 533; Hall v Maule, 4 A. & E. 283. (d) Mountjoy v. Wood, 1 H. & N. 58; Atty.-Genl. ». Con- stable, 4 Ex. D. 172; Atty.- Genl. v. Barker, LR. 7 Ex. 177; Re Henley, 9 ChD. 469. (ec) 11 Rep. 68b. and 74b; Lambert v. Taylor, 4 B. & C. 138, 6th point; Rustomgee R., 1 QBD. 487, 2 QBD. 69. (f) Exp. Russell, 19 Ves. 165; Exp. Postmaster-Genl., 10 ChD. 595. (g) Re Smith, 2 Ex. D. 47. Digitized by Microsoft® CONSTRUCTION AS REGARDS THE CROWN. 165 of offices (a). The Interpleader Act was held not to apply to cases where the Crown was interested (0). The provision of the Statute of Frauds which made writs of execution binding on the goods of the judg- ment debtor only from the time of the delivery of the writ to the sheriff for execution, was held not to affect the earlier rule of law, (which bound the goods from the teste of the writ,) where an extent was issued at the suit of the Crown(c). The Statute of Amend- ments of 4 Ed. 3, st. 1, ¢ 6, which provided that clerical errors in records should be amended at once, without giving advantage to “the party” who had challenged the misprision, did not include the Crown ; for, it was said, it had never been named “a party ” in any Act of Parliament (d). The Crown, however, is sufficiently named in a statute, within the meaning. of the maxim, when an intention to include it is manifest. For instance, the 20 & 21 Vict. c. 48, which entitles (by section 2), either party, after the hearing, by a justice, of ‘ any information or complaint” which he has power to de- termine, to apply for a case for the opinion of one of (a) Huggins » Bainbridge, Grover, 1 Cl. & F. 74; Up- Willes, 241. pom v. Sumner, 2 W. BI. 1251 ; (6) Candy v, Maugham, 6 M. Edwards v. R. 9 Ex. 628. & Gr. 710. (d@) R. w% Tuchin, 2 Lord (c) R. % Wynn, Bunb. 39; Raym.1066. See also Tobin »v, R. v. Mann, 2Stra.754; Barden R., 14 CB. NS. 505, and Thomas v, Kennedy, 3 Atk. 739; Giles v. R., LR. 10 QB. 44, Digitized by Microsoft® 166 INTERPRETATION OF STATUTES. the Superior Courts; and after authorising (by section 4) the justice to refuse the application, if he deems it frivolous, provides that it shall never be refused when made by, or under the direction of the Attorney- General, and directs (by section 6) the Superior Court, not only to deal with the decision appealed against, but to make such order as to costs as it deemed fit, was held by the Queen’s Bench to include the Crown, and to authorise an order against it for the payment of costs. The ianguage of the second section was wide enough to include the Crown; and as the fourth referred to the Crown as plainly as if it had spoken expressly of Crown cases, the language of the sixth authorising costs was construed as applying to such cases also, as well as to cases between subject and subject (#). But, although the Crown be named in some sections, this does not necessarily extend to it the operation of other parts of the Statute (0). It is said that the rule does not apply when the Act is made for the public good, the advancement of religion and justice, the prevention of fraud, or the suppression of injury and wrong (c); “for religion, “justice, and truth are the sure supporters of the “ crowns and diadems of kings ” (d) ; but it is probably (a) Moore v. Smith, 1 E. & (c) Case of Ecclesiastical per- E. 597, 28 LJ. 126. See The- sons, 5 Rep. 14a, Magdalen Col- berge v. Landry, 2 App. 102, and lege Case, 11 Rep. 70b-73a; R. Cushing v. Dupuy, 5 App. 409. v. Abp. of Armagh, Stra, 516; (6) Exp. Postmaster-General, Bac. Abr. Prerogative, E. 5. 10 ChD. 595. (d) 5 Rep. 14b. Digitized by Microsoft® CONSTRUCTION AS REGARDS THE CROWN. 167 more accurate to say that the Crown is not excluded from the operation of a statute where neither its pre- rogative, rights, nor property are in question. The Statute de donis(a); the Statute of Merton, against usury running against minors(b); the 22 Hen. 3, c. 22 (Marlbridge), against distraining freeholders to produce their title deeds(c); the 32 Hen. 8, con- cerning discontinuances(d); the 31 Eliz. against simony (¢); the 13 Eliz., c. 10, respecting ecclesiastical leases(f'), were held to apply to the Crown, though not named in them (g). So, the 11 Geo. 4 & 1 Will. 4, c. 70, which was passed for the better administration of justice, and enacted that writs of error upon judg- ments given in any of the Superior Courts, should be returned to the Exchequer Chamber, was held to apply to a judgment on an indictment (h), and on a petition of right (2); although the Crown was not named or referred to in the Act. No prerogative was affected by this construction (k). (a) 13 Ed. 1 ; Willion v. (f) 5 Rep, 14a, 11 Rep. 66b, Berkley, Plowd. 223; 11 Rep. Stra. 516. 72a. (g) See Bac. Ab. Prerog. E. 5. (b) 20 Hen. 3; Co. Litt. 120a, (h) R. v. Wright, 1 A. & E, note 3. 434, (c) 2 Inst. 142. (t) De Bode v R. 13 QB, (d) 2 Inst, 681. 464, (e) Co. Litt. 120a, note 3. (k) Per Cur. Id. 379. Digitized by Microsoft® CHAPTER VI. SECTION I.—PRESUMPTION AGAINST INTENDING AN EXCESS OF JURISDICTION. ANOTHER general presumption is that the Legisla- ture does not intend to exceed its jurisdiction. Primarily, the legislation of a country is territorial. The general rule is, that extra territorium jus dicenti impune non paretur ; leges extra territorium non obli- gant (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 county, but its ships, whether armed or unarmed, and the ships of its subjects on the high seas or in foreign tidal waters, and foreign private ships within its ports. They apply also to all foreigners within its territories as regards criminal (b), police, and, indeed, all other matters except some questions of personal status or (a) Dig, 2, 1, 20. of extradition; R. v. Ganz, 9 (6) So that an American com- QBD, 93, 51 LJ. 419; and see mitting a crime in Holland and Atty.-Genl. v. Kwok Ah Sing, flying to England is regarded as_ LR. 5 PO. 179. a Dutch subject for the purposes Digitized by Microsoft® AGAINST EXCEEDING JURISDICTION. 169 capacity, in which, by the comity of nations, the law of their own country, or the lex loci actds or contractts 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 (b), in every part of the world (c) ; and, indeed, on such matters as personal status or capacity it is understood always to do so(d); but, with that excep- tion, in the absence of an intention clearly expressed or to be inferred either from its language, or from the object (a) See Niboyet v. Niboyet, 4 PD. 19, per Brett L.J.; San Theodoro v. San Theodoro, 5 PD. 79: Story, Confl. L. 100, et seqq. comp. Worms v. De Valdor, 49 LJ. Ch. 261; Le Sueur vw. Le Sueur, 1 PD. 139; Firebrace v. Firebrace, 4 PD. 63. (b) Co. Litt. 129; Story, Confl. L. s. 21; Sussex Peerage, 11 Cl & F. 85, 146; Mette ». Mette, 1 Sw. & Tr. 416, 28 LJ. P. & M. 117. (c) Our law has at different times made treason, treason- felony, burning the Queen’s ships and magazines, breaches of the foreign Enlistment Act, homicide, bigamy, and slave dealing, punishable when com- mitted by British subjects in any part of the world; also any offences committed by them on board any foreign ship to which they do not belong (30 & 31 Vict. 124); also, offences by them in native States in India (33 Geo. 3, c. 52, s. 67), in Turkey, China, Siam, and Japan (6 & 7 Vict. c. 94, and 28 & 29 Vict. c. 116); and in some parts of Africa, Australia, and Polynesia (6&7 Wm. 4,¢.573; 24 & 25 Vict.c. 31; 26 & 27 Vict. c. 35; 34 Vict. c. 8; 9 Geo. 4, c. 83; 35 & 36 Vict. c. 19). (d) See ex. gr. Brook v. Brook, 27 LJ. Ch. 401; Story Confl. L. s. 114; Lolley’s Case, 1 R. & R. 236. See also Story Confl. L. s. 100 et seqq. ; Wheat. Elem. Internat. L., pt. 2, c 2, ss. 6, 7. Digitized by Microsoft® 170 INTERPRETATION OF STATUTES. or subject matter, or history of the enactment, the presumption is that Parliament does not design its Statutes to operate on them, beyond the territorial limits of the United Kingdom (a). fore, to be read, usually, as if words to that effect had been inserted in them (>). 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 not in express terms extend its prohibition to subjects abroad (c). An act of bankruptcy committed abroad, such as an assignment by a trader of all his effects, did not make him lable to the bankrupt laws until they were amended by extending them expressly to acts whether within the realm or elsewhere (d). A Statute which authorized a Court to make an order They are, there- against a person after he had been served with a summons, was held not to give jurisdiction to make it when the service had been effected abroad (e). The (a) Rose v. Hinely, 4 Cranch, 241, per Marshall C.J.; The (c) 1 Jac. 1, co. 11; 1 Hale P.C. 692. Zollverein, Swab. 90, per Dr. Lushington ; Cope v. Doherty, 4K.& J. 357,2De G. & J. 614, 27 LJ. Ch. 660. (b) Per Pollock C.B. in Ros- seter v. Cahlmann, 8 Ex. 361 ; and per Cur. in The Amalia, 1 Moo. NS. 471. (d) Inglis v Grant, 5 TR. 530; Norden v. James, 2 Dick. 533. See 6 Geo. 4, c. 16,8. 3, 32 & 33 Vict. c. 71,5. 6, § 2. (ec) 7&8 Vict. c. 101; Rw Lightfoot, 6 E. & B, 822, 25 LJ. MC. 115. Digitized by Microsoft® AGAINST EXCEEDING JURISDICTION. 171 5 & 6 Will. 4, c. 63, which prohibits the sale of liquids otherwise than by imperial measure, would not be con- sidered 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 supposition that the Legis- lature intended that English subjects should carry 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 territorial jurisdiction of Parliament (c). 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, ce. 11), for instance, which was, according to the pre- amble, 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 (a) Rosseter v. Cahlmann, 8 (e) Scrimshire », Scrimshire, Ex, 361. 2 Hagg. Cons. 371, Story, Confl. (6) Per Parke B. Id. L, s, 121. Digitized by Microsoft® 172 INTERPRETATION OF STATUTES. incapacity, which attached to the person and followed him all over the world (a) ; though the marriage were valid according to the law of the country where it was celebrated (b). So, the 5 & 6 Will. 4, c. 54, which declared “all marriages between persons within the “ prohibited degrees” null and void, was held to create a personal incapacity in all British subjects domiciled in the United Kingdom, though married in a country where such marriages are valid (c). Where an Englishman, after marrying an English- woman in England, became domiciled in America, it was held that he continued subject to the English Divorce Act (d). This wider effect has been given even to a criminal . statute, where such must have been manifestly its in- tention. The 5 Geo. 4, c. 113, which made it felony for ‘any persons” to deal in slaves, or to transport them, or equip vessels for their transport, was held to apply to British subjects committing any such offences on the coast of Africa, the notorious scene of the crimes which it was the object of the Act to suppress (e) ; if (a) The Sussex Peerage, 11 M. & A. 1293; see Bond w. Bond, Cl. & F. 85. Id. 148. ¢ (6) Swift v. Swift, 3 Knapp, (e) R. w% Zulueta, 1 Car. & 257. K, 215 ; Santos ». Ilidge, 6 CB. (c) Brook w Brook, 27 LJ. NS, 841, 28 LJ. 317; overruled Ch. 401; 9 HL.193. SeeStory, on another point, 29 LJ. 348, Confl. L. s. 86, and also s. 100. 8 CB. NS. 861. (d) Deck v. Deck, 29 LJ. P. Digitized by Microsoft® ‘HARMONY WITH INTERNATIONAL LAW. 173 not in every other part of the world also (a) ; though it was not in express terms declared to be applicable abroad. As the Courts of British Colonies were em- powered by Act of Parliament to punish certain offences committed at sea with, among other things, transportation, the Act which abolished transpor- tation and substituted penal servitude, was held to extend to the Colonies, though it made no mention of them (6). SECTION II—-PRESUMPTION AGAINST A VIOLATION OF INTERNATIONAL LAW. Under the same general presumption that the Legislature does not intend to exceed its jurisdic- tion, every statute is to be so interpreted and applied, as far as its language admits, as not to be incon- sistent with the comity of nations, or with the estab- lished rules of international law (c). 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 construction is possible, it would be adopted, in order (a) See per Bramwell B.,29 », Brown, 12 CB. 801, 22 LJ. LJ. CP. 352. CP. 3; Bluntschli, Voelkerrecht, (b) 12 & 13 Vict. c. 96; 20 8, 847; per Dr. Lushington in & 21 Vict. c. 3; R. v Mount, The Zollverein, Swab. 98, and LR. 6 PC, 283. The Annapolis, Lush, 295. (c) Per Maule J. in Leroux Digitized by Microsoft® 174 INTERPRETATION OF STATUTES. to avoid imputing such an intention to the Legisla- ture(a). All general terms must be narrowed in construction to avoid it(b). For instance, although foreigners are subject to the criminal 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 organisation (d), a nation has no jurisdiction over offences committed by a foreigner out of its territory, including its ships and waters as already mentioned (e) ; and the general British subjects, or residents within those settlements by per- sons not the subjects of any (a) Per Cur. in U.S. v, Fisher, 3 Cranch, 390, and Murray ». Charming Betsy, Id. 118. (b) Per Lord Stowell in Le Louis, 2 Dods, 229. (c) Wheat. Elem. Int. L., pt. 2, c. 2.; and see the cases collected in The Parlement Belge, 5 PD. 197; The Constitution, 4 PD. 39, 48 LJ. 13. (d) See ex. gr. Ortolan, Dipl. de la Mer, i. 285. By the 34 Vict. c. 8, offences committed within twenty miles from our West African Settlements on civilized power, are made cogniz- able by the Superior Courts of the Settlements. (e) Sup. 168. See Wheaton’s ‘Elem. Internat. L, pt. 2, ¢ 2, 8. 9; The Parlement Belge, 5 PD. 197; R. vw Anderson, LR. 1 CC. 161; R. wv. Seberg, Id. 264; R. v, Carr, 10 QBD. 76; R. Lopes, 1 D. & B. 525, 27 Ld. MC. 48; R. vw. Sattler, Id. ; R. v. Lesley, 1 Bell, 220, 29 LJ. Digitized by Microsoft® HARMONY WITH INTERNATIONAL LAW. 175 language of any criminal statute’ would be so re- stricted in construction as not to violate this principle. Thus, the 9 Geo. 4, ¢ 31, s. 8 (re-enacted by the 24 & 25 Vict. c. 100, s. 10), which enacted that when any person, feloniously injured abroad or at sea, died in England, or receiving the injury in England, died at sea or abroad, the offence should be dealt with in the country where the death or injury éccurred, would not authorize the trial of a foreigner who inflicted a wound at sea in a foreign ship, of which the sufferer afterwards died in England (a). So, it has been re- peatedly decided in America that an Act of Congress which enacted that any person committing robbery in “any vessel on the high seas”’ should be guilty of piracy, applied only to robbery in American vessels, and not to robbery in foreign vessels even by an American citizen (b). It was held that a foreigner, while navigating a foreign ship on a voyage to a foreign port, was not triable by the Courts of this country for a manslaughter committed on the voyage MC. 97. See as to ships, the judgment of Lindley J. in R. w Keyn, 2 Ex.D. 93, 94. (a) R. v, Lewis, Dears. & B. 182, 26 LJ. MC.; and see R. v. Depardo, 1 Taunt. 26; R. v. De Mattos, 7 C. & P. 458, Nea Hoong v. R., 7 Cox, 489; R. v. Bjornsen, 34 LJ. MC. 180. The 267th section of the Mere. Ship- ping Act of 1854, would seem for this reason limited to British subjects ; and sect. 527 ; Harris v. Franconia, 2 CPD. 173. (6) U.S. » Howard, 3 Wash. 340; U.S. v, Palmer, 3 Wheat. 610; U.S. w Klintock, 5 Wheat. 144; U.S. v. Kessler, Bald. 15, cited by Cockburn C.J. in R. v, Keyn, 2 ExD. 172. Digitized by Microsoft® 176 INTERPRETATION OF STATUTES, within three miles of the English Coast and in a British ship (a). An Act of Parliament which autho- rized the commanders of our ships of war to seize and prosecute “all ships and vessels ” engaged in the slave trade, was construed as not intended to affect any right or interest of foreigners contrary to the law of nations (b). Though speaking in just terms of in- dignation of the horrible traffic in human beings, it spoke only in the name of the British nation. Its prohibition of the trade as contrary to the principles of justice, humanity, and sound policy, applied only to British subjects; it did not render it unlawful as regarded foreigners(c). It was even held that a foreigner who was not prohibited by the law of his own country from carrying it on, was entitled to recover in an English Court damages for the seizure of a cargo of his slaves by a British man-of-war ; for, our Courts being open to all aliens in amity with us, and the act of the man-of-war being wrongful, the only question was what injury the plaintiff had sustained from it (d). So, although a foreigner who contracts debts, even (a) R. » Keyn, 2 ExD. 63, So held by seven judges against Bix. (b) Le Louis, 2 Dods. 214: St. Juan Nepdmuceno, 1 Hagg. 265; The Antelope, 10 Wheat. 66; see also R. v Serva, 1 Den. 104. Comp. The Amedie, 1 ihe 240. (c) Per Best J, 3B & A 358. 7 (d) Madrazo v Willes, 3 B. & A, 353, See also Santos » Illidge, 6 CB. NS. 841. Comp. Forbes v. Cochrane, 2 B, & C. 448, Digitized by Microsoft® HARMONY WITH INTERNATIONAL LAW. 177 abroad (a) and commits an act of bankruptcy in England, would be liable to the English Bankrupt Laws ; he would not fall within them if he committed the act of bankruptcy abroad, although the enactment made it an act of bankruptcy, whether committed “within this realm or elsewhere” (bd). And an Act which gave the Court of Admiralty jurisdiction over “all claims whatsoever” relating to salvage reward for saving lives has been held not to extend to the salvage of life on a foreign ship more than three marine miles from our shore (c). So, as it is a rule of all systems of law that real property is exclusively subject to the laws of the State within whose territory it lies, any Act which dealt in general terms with the real estate of a bankrupt or lunatic, for instance, would be construed as not extending to his lands abroad (d), or even in our (a) Exp. Pascal, 1 ChD. 509. (6) Exp. Blain, 12 ChD. 522; see also Exp. Smith, cited in Alexander v. Vaughan, Cowp. 402; Bulkeley v. Schutz, LR. 3 PC. 764; Bateman ». Service, 6 App. 386; Exp. O’Loghlen, LR. 6 Ch. 406; Davis v. Park, LR. 8 Ch. 862n; Exp. Crispin, LR. 8 Ch. 374. | (c) 17 & 18 Vict. c. 104, ss. 458, 476; The Johannes, Lush. 112, 30 LJ. P. M. & A. 91. (d) Selkrig v. Davies, 2 Rose, 311, 2 Dow. 250; Cockerell v. Dickens, 3 Moo. P. C. 1383. See also Sill v. Worswick, 1 H. BI. 665; Phillips » Hunter, Id. 402; Hunter v Potts, 4 TR. 182; Re Blithman, LR. 1 Eq. 23; Freke v. Carbery, 16 Eq 461; Waite v. Bingley, 21 ChD. 674; Story, Confl. L. ss. 428, 551, &e. Digitized by Microsoft® 178 INTERPRETATION OF STATUTES. Colonies, unless it clearly appeared that the Act was intended to reach them (a). But a statute which imposed a stamp duty on all conveyances of land executed in England would obviously not be so limited in construction (b). It being also a general principle that personal pro- perty has, except for some purposes, such as pro- bate(c), no other situs than that of its owner, the right and disposition of it are governed by the law of the domicile .of the owner, and not by the law of their local situation(d). The Bankrupt Acts, therefore, which effect an assignment of a bankrupt’s personal property, would properly be construed as applying to such property everywhere (e). When an Act imposes a burden in respect of ‘personal property, it would be construed, as far as its language permitted, as not intended to contravene the general principle(f). Thus, the 36 Geo. 3, ¢. 52, which imposed a duty on “ every legacy given by any ‘« will of any person out of his personal estate,” and the Succession Duty Act, 16 & 17 Vict. ce. 51, which (a) See Re Hewitt’s Estate, (c) And see Hart ». Herwig, G W. R. 537; Re Scofield, 22 LR. 8 Ch. 860. LT. 322; Re Groom, 11 LT. (d) Story, Confl. L. s. 376. NS. 336. Comp. Re Internat. (ce) See the cases cited sup. Pulp, &c., Co., 3 ChD. 594, 45 177, note (d). LJ. 446. (f) See ex. gr. Grenfell ». (6) Re Wright, 11 Ex. 458, Inland Rev. Com, 1 Ex. D. 25 LJ. 49. 242. Digitized by Microsoft® HARMONY WITH INTERNATIONAL LAW. 179 imposes a duty on every “ disposition of property ” by which “any person” becomes “entitled to any “ property on the death of another,” was held not to apply where the deceased was a foreigner, or even a British subject domiciled abroad, though the property was in England(«). But they would affect personal pro- perty abroad, if the deceased was domiciled in England, though a foreigner (b). The Interpleader Act does not empower our Courts to bar the claim of a foreigner residing abroad (c). 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 (d) ; for the (a) In re Bruce, 2 Cr. & J. 436; Arnold v. Arnold, 2M. & Cr, 256 ; Thomson v. The Adv.- Genl., 12 Cl. & F. 1; Wallace ». The Atty.-Genl., LR. 1 Ch. 1; Hamilton v, Dallas, ] ChD. 257. See also Udney v. East India Co, 13 CB, 733, 22 LJ. 260; Erichsen v. Last, 50 and 51 LJ. QB. 570 and 86; Cesena Sulphur Co. v. Nicholson, 1 Ex. D. 428 ; Calcutta Jute Co. v. Nicholson, Id.; Sully » Atty.-Genl, 5 H. & N. 710, 29 LJ. 464; Re Atkinson, 21 ChD. 100. Comp. the Atty.-Genl. v. Campbell, LR. 5 HL. 524; Re Cigala’s Settle- ment, 7 ChD. 351, 47 LJ. 166; Re Atkinson, 51 LJ. Ch. 452. (6) Atty.-Genl. v. Napier, 6 Ex. 217. (c) Patorni v. Campbell, 12 M. & W. 277; Lindsey v Barron, 6 CB, 291. (d) Per Cur. in The Marianna Flora, 11 Wheat, 40; The Zoll- n2 Digitized by Microsoft® 180 INTERPRETATION OF STATUTES. Courts cannot question the authority of Parliament, or assign any limits to its power (a). Thus, the fourth section of the Statute of Frauds, which enacts that “no action shall be brought” in respect, among others, of contracts not to be performed within a year, unless they be in writing, was construed literally as regulating the procedure of our Courts, and, therefore, as prohibiting a suit on a contract made in France and in accordance with French law, but not in conformity with the formalities required by our law(b). But this construction has been questioned(c); and having regard to the principle under considera- tion, the enactment might reasonably have been con- fined to those contracts which it was within the pro- vince of Parliament to regulate. verein, Swab. 96; The Johannes, Id. 188, 80 LJ. P. M. & A. 94; The Amalia, 32 LJ. P. M. & A. 193. As to the Hovering Acts (39 & 40 Vict. c. 179, embodying the 16 & 17 Vict. 5 212), see Le Louis, 2 Dods. 245 ; Church v. Hubbard, 2 Cranch, 187. See also 2 & 3 Vict. c. 73. (a) Comp. Bonbam’s Case, 8 Rep. 118a; Day v. Savage, Hob. 87; London v. Wood, 12 Mod. 688; 1 Kent Comm. 447. (6) Leroux »v. Brown, 12 CB, 801, 22 LJ. 1; recognized by Lush J. and Mellor J. in Jones v. Victoria Graving Dock, 2 QBD. 323. (c) See Williams v. Wheeler, 8 CB. NS. 299; Gibson v. Hol- land, LR. 1 CP. 8, per Willes J. ; and the notes to Birkmyr ». Darnell, and Mostyn »v. Fabrigas, 1 Sm. LC. See also Story, Conf. L. s, 285n., observing on Acebal v. Levy, 10 Bing. 376. Digitized by Microsoft® AS TO CONFERRING RIGHTS ON FOREIGNERS. 151 SECTION IJI.—HOW FAR STATUTES CONFERRING RIGHTS AFFECT FOREIGNERS. It may be added, in connection with this topic, that as regards the question how far statutes which confer exceptional rights 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 filling any character of which foreigners are capable are mentioned, foreigners would be comprehended in the statute (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 duty of that legislature to protect ; that is, its own subjects, inclu- ding in that expression, not only natural born and naturalized subjects, but also all persons actually within its territorial jurisdiction; but that as regards aliens resident abroad, the legislature has no concern to protect their interests, any more than it has a legiti- mate power to control their rights (b). In this view, it would be presumed, in interpreting a statute, that (a) Per Maule J. in Jefferys per Wood V.C. in Cope » v. Boosey, 4 HL. 895. Doherty, 4 K. & J. 357, 27 Ea, (b) See per Jervis C.J. in Ch. 601; Comp. per Lord West- Jefferys v. Boosey, 4 HL. 946; bury in Routledge v. Low, LR. per Lord Cranworth, Id, 955; 3 HL. 100. Digitized by Microsoft® 182 INTERPRETATION OF STATUTES. the legislature did not intend to legislate either as to their 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 foreign author resident abroad (b). The decision would pro- bably 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 protect a foreign author who was in the British dominions at the time of publication (d). It was held also that a foreigner was entitled to main- tenance, and to gain a settlement, under the poor laws(e). And it was decided in the Court of Admiralty that the 9 & 10 Vict. c. 93, which gives a right of action to the personal representative of a person killed by a wrongful and actionable act or neglect, extended to the representative of a foreigner who had been killed on the high seas, in a foreign ship, (a) Per Turner L.J. in Cope ». (c) Per Lord Cranworth, in Doherty, 27 LJ. Ch. 609, 2 De Jefferys v. Boosey, ubi sup. G. & J. 624. (d) Routledge v. Low, LR. 3 (6) 8 Anne, c. 19; Jefferys HL. 100. v. Boosey, 4 HL. 815 ; dubitante (e) R. v Eastbourne, 4 East, Lord Cairns in Routledge » 103, Low, LR. 3 HL, 100, Digitized by Microsoft® AS TO CONFERRING RIGHTS ON FOREIGNERS. 183 in a collision with an English vessel (a). But it has been questioned whether that Court has any jurisdic- tion whatever under that Act (0). On the other hand, it has been held that the 7&8 Vict. c. 101, which empowered the mother of a natural child to sue its putative father for its maintenance, did not extend to a foreign woman who had become preg- nant in England, but had given birth to the child abroad (c). The history, as well as the language of the enactment, showed that the liability arose from the birth of the child in this country (d). In the converse case of conception abroad and birth in England, the law would extend to the mother (e). The benefit of those enactments which, prior to the Merchant Ship- ping Act of 1862, limited the liability of shipowners for damage done, without their own fault, by their servants, to other ships, was held not to extend to foreign vessels ; one reason being that the object of the Legislature, in giving such a privilege, was to encou- rage the national shipping only, by removing the terrors of a liability commensurate with the damage (a) The Gulfaxe, LR. 2 Ad. & Ec. 325; The Explorer, LR. 3 Phillimore J., Id. See The Beta, LR. 2 PC. 447 ; and Reuss Ad. & Ec. 289. (6) Smith v. Brown, LR. 6 QB. 729; and see yer Bramwell LJ. and Brett L.J. in The Fran- conia, 2 PD. 163. Comp. per Baggalay L.J., James L.J., and ». Bos, LR. 5 App. 176. (c) R. v Blane, 13 QB. 769. (d) Per Coleridge J., Id. 773. (ce) Hampton v. Rickards, 43 LJ. MC. 133. Digitized by Microsoft® 184 INTERPRETATION OF STATUTES, done(a). But they were held to protect a British ship in a suit by a foreign ship, whether the collision took place in British waters (b) or on the high seas (c). In the latter case, the protecting enactment applied in express terms to foreign as well as British ship- owners ; and though it would probably have been read as if the words “within British jurisdiction” had been inserted (d), if the Act had been considered as exceeding the legislative powers of Parliament to control the natural rights of foreigners, there was no such en- croachment in fact, in its full operation. For the nature and measure of legal remedies are governed by the lex fori ; and it is no breach of international law, or any interference with the rights of foreigners, to de- termine what redress is to be given to suitors who resort to our Courts(e). A foreigner, for instance, was liable to arrest in this country for a debt con- tracted abroad, though it would have exposed him to no such peril there; and he would be barred in our (a) The Carl Johann, 1 Hagg. 113 ; Cope v. Doherty, 4 K. & J. 357,2 De G.& J. 614. The Wild Ranger, 1 J. & H. 180, 31 LJ. 206. See The Saxonia, Lush. 410, 31 LJ. 201. (6) The General Iron Screw Co. v7. Schurmanns, 1-Jo. & H. 180, 29 LJ. Ch. 877. (c) The Amalia, 1 Moo. NS. 47, 32 LJ. P.M. & A. 197. (d) See the Dumfries, Swab. 63. (e) The Amalia, ubi sup. ; The Vernon, 1 W. Rob. 316; Bank of U. S. v Donnally, 8 Peters, 361. See Jackson » Spittall, LR., 5 CP. 542; Re Haney’s Trusts, LR, 10 Ch. 275; Chartered Merc. Bk. 2 Netherland Steam Navig. Co., App., Jany. 17, 1883. Digitized by Microsoft® REMEDIES GOVERNED BY LEX FORI. 185 Courts by our Statute of Limitations, though he was not by the prescription of his own country (a). The provisions of the Admiralty Court Act of 1861, which give (by ss. 4 and 5).to the Court of Admiralty juris- diction over any claims for the building of any ship, and also for necessaries supplied to any ship elsewhere than in the port to which she belongs, unless the owner be domiciled in England, were held to be con- fined to British ships, on the ground of the impro- bability that the British Parliament had intended to legislate for foreigners in foreign ports(b). But the seamen of a ship of any nation are entitled to sue for wages in the Admiralty Court, under the 10th section of the same Act, which gives that Court jurisdiction over any claim by a seaman of any ship for wages (c). In a recent case it was held that as the English sailing rules are not binding on foreign ships on the high seas, a foreign ship was precluded, in a collision suit, from imputing to the British ship with which the collision occurred, a breach of any of those rules ; on the ground that it had no right to benefit by rules by which it was not, itself, bound (d). (a) De la Vega v. Vianna, Ch. 816 ; Alliance Bank ». Cary, 1 B. & Ad. 284; Don wv. Lipp- mann, 5 Cl. & F. 1; Genl. Steam Navig. Co. v. Guillou, 11 M. & W. 877; Lopez v. Burslem, 4 Moo. P.C. 300; British Linen Co, v. Drummond, 10 B. & C. 903; Huber ». Steiner, 2 Bing. NC, 202; Finch v. Finch,45 LJ. 5 CPD. 429, 49 LJ. 781; Re Reuss Kostritz, 49 LJ. P. & M. 67; The Leon, 6 PD. 148, 50 LJ. PD. 59. (6) The India, 32 LJ. P. M. & A, 185. (c) The Nina, LR. 2 PC. 38. (d) The Zollverein, Swab. 96. Digitized by Microsoft® CHAPTER VIL. SECTION I.—-REPUGNANCY. —REPEAL BY IMPLICATION.— ACTS IN, OR INVOLVING, THE NEGATIVE. AN author must be supposed to be consistent with himself; and, therefore, if in one place he has ex- pressed his mind clearly, it ought to be presumed that he is still of the same mind in another place, unless it clearly appears that he has changed it(a). In this respect, the work of the Legislature is treated in the same manner as that of any other author; and the language of every enactment must be so construed, as far as possible, as to be consistent with every other which it does not in express terms modify or repeal. The law, therefore, will not allow the revocation or alteration of a statute by construction when the words may have their proper operation without it(b). But it is impossible to will contradictions; and if two passages are irreconcilable, the earlier stands impliedly repealed by the latter (c). Leges posteriores priores (a) Puff. L.N. b. 5, ce 12, (c) Co, Litt. 112; Shep. 8. 9. Touchst. 88 ; Grot. b. 2,¢. 16, s. (6) Per Bridgman C.J. in 43; Sims v Doughty, 5 Ves. 243 ; Wyn v. Lyn, Bridg. Rep. by Constantine v. Constantine, 6 Bannister, 117. Ves, 100; Morral v Sutton, 1 Digitized by Microsoft® REPUGNANT SAVING CLAUSE. 187 contrarias abrogant. Ubi due contrarie leges sunt, semper antique obrogat nova (a). A difference, indeed, has been said to exist in this respect between the effect of a saving clause or exception and a proviso in a statute. When the proviso appended to the enacting part is re- pugnant to it, it unquestionably repeals the enact- ing part(b); but it is said by Lord Coke that when the enactment and the saving clause (which reserves something which would be otherwise included in the words of the enacting part (c) ) are repugnant— as where a statute vests a manor in the king, saving the rights of all persons, or vests in him the manor of A. saving the rights of A.—the saving clause is to be rejected, because otherwise the enactment would have been made in vain(d). One authority which he cites for this proposition is the case of the reversal of the Duke of Norfolk’s attainder, by an Act of Mary. That Act declared that the earlier Statute of 38 Henry VIIL, which had attainted the Duke, was no Act, but utterly void, providing, however, that this reversal should not take from the grantees of Henry VIII. or Edward VI. any lands of the Duke which those kings had granted to them ; and this provision was held Phil. 533; Brown v. G. W. R. (c) Co. Litt. 47a; Shep. Co., 9 QBD. 753, per Field J. Touchst. 78. (a) Livy, b. 9, c. 34. (d) Alton Wood's Case, 1 Rep. (6) Atty.-Genl. » Chelsea 47. See Yarmouth v, Simmons, Waterworks, Fitzg. 19. 10 ChD. 518. Digitized by Microsoft® 188 INTERPRETATION OF STATUTES. inoperative to save the rights of the grantees. But this resulted, it is said, not because the saving clause was repugnant to the enacting part, but because the latter, in declaring the attainder void, in effect esta- blished also that the lands of the Duke had never vested in the Crown; that none, consequently, had ever passed to the grantees; and that there was thus no interest to be saved on which the clause could operate (a). The illustrations given by Coke are cases of con- veyance of land ; and the rule as regards the construc- tion of repugnant passages in a conveyance by deed has always been that the earlier of them prevails (b). But it may be questioned whether there is any solid ground for this distinction between a saving clause and a proviso in a statute. 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. It had been held that where a statute merely re-enacts the provision of an earlier one, it is to be read as part of the earlier statute, and not of the re- enacting one, if it is in conflict with another passed after the first, but before the last Act ; and therefore does not repeal by implication the intermediate one (c). (a) Plowd. 565; see Savings Touchst. 81, Hard. 94; Fur- Institution v. Makin, 23 Maine, nivall v Coombes, 5 M. & Gr. 370. 736. " (6) Co. Litt. 112; Shep. — (c) Morisse v. Royal British Digitized by Microsoft® ‘REPEAL BY IMPLICATION. 189 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). 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 licence, it would obviously be impos- sible to save the former from the repeal implied in the latter (b). The Highway Act which enacted that “no “action ” for anything done under it should be begun after three months from the cause of action, was so clearly inconsistent, as regards actions against justices, with the 24 George 2, which limited the time to six months, that it necessarily repealed the later (c). But even when the later statute 1s in the affirmative, it is often found to involve that negative which makes Bank, 1 CB. NS. 67, 26 LJ. 1882. See Clarke v. Gant, 8 Ex. 62; per Willes J. citing Wallace v, Blackwell, 3 Drew. 538; and see R. v, Dove, 3 B. & A. 596. (a) R. v. Baines, 12 A. & E. 227; Allen v, Flicker, 10 A. & E. 640, per Patteson J.; R. v. Russell, 13 QB. 237; Dean ». Green, Lord Penzance, Nov., 252, 22 CJ. 67. (6) Read » Story, 30 LJ. MC. 110, 6 H. & N. 423; remedied by 24 & 25 Vict. c. 21, 8. 3. (c) 5&6 Wm. 4, c. 50,8. 109, 24 Geo. 2, c. 44, 3 8; Rix v. Borton, 12 A. & E. 470. Digitized by Microsoft® 190 INTERPRETATION OF STATUTES. it fatal to the earlier enactment (a). Thus, the Public Health Act of 1848, in enacting that “every action” against a Board of Health or its officers should be hrought within six months, involved the negative plainly, and so impliedly repealed, as regards actions against them under the earlier Highway Act, the pro- vision of the latter Act which limited the time for actions under that Act to three months (b). If an Act requires that a juror shall have twenty pounds a year, and a new one enacts that he shall have twenty marks, the latter necessarily implies, on pain of being itself inoperative, that the earlier qualification shall not be necessary, and thus repeals the first Act(c). The 53 Geo. 3, c. 127, giving power to two justices to enforce the payment of a church rate, when its validity was undisputed and the sum due was under ten pounds, provided that where the validity was disputed, the justices should forbear from adjudicating, and pro- vided that nothing in the Act should alter or affect the jurisdiction of the Ecclesiastical Courts to decide cases touching the validity of the rate, or where the sum exceeded ten pounds, was held to repeal the jurisdic- - tion of the latter Courts, where it was given to the justices, the provisoes showed that an alteration in the (a) Bac. Ab, Stat. D.; Foster’s Taylor v. Metham Board, 47 LJ. Case, 5 Rep. 59. See Lord OP. 12; see also Boden a. Smith, Blackburn’s judgmentinGarnett 18 LJ. CP. 121. v, Bradley, 3 App. 966. (c) Jenk. Cent. 2, 73, 1 BL (6) 5&6 Wm. 4,c. 50,s.109, Comm. 89. 11 & 12 Vict. o 63, s. 139; Digitized by Microsoft® REPEAL BY IMPLICATION—-NEGATIVE ACTS. 191 jurisdiction was intended (a). The 5 & 6 Vict. c. 22, s. 16, which authorised the Secretary of State to remove to Bethlehem Hospital any prisoner confined in the Queen’s prison who was of unsound mind, was held, as regards such prisoners, to repeal impliedly the earlier enactment of 1 & 2 Vict. c. 110, s. 102, which provided that a prisoner for debt of unsound mind should be discharged after certain inquiries and forma- lities (6). 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 charge- able to the parish in which he comes to inhabit ; and another, after reciting this provision, repealed it, and enacted that no person 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). (a) Rickards v. Dyke, 3QB. gian, 4 B. & S, 249, 32 LJ. 256; Ricketts » Bodenham MC. 225, dissentiente Cock- 4A. &E. 442, burn C.J. (b) Gore v. Grey, 13 CB. NS. (d) 43 Eliz. c. 2,8. 6, 17 Geo. 2, 138, 32 LJ. CP. 106. c. 38,8.4; R. v. Worcestershire, (c) 13 & 14 Car. 2,¢. 12, and 5 Man. & S. 457, 35 Geo. 3, c. 101; R. » Lian- Digitized by Microsoft® 192 INTERPRETATION OF STATUTES. The Nuisances Removal 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 cognisance of cases where title to real property was in question ; for it would have been inoperative if the Court could not decide the question of ownership (a). So, where justices were empowered to punish sum- marily acts of malicious damage to property, except when done “ under a fair and reasonable supposition ” of a right, it was held that this proviso impliedly repealed, pro tanto, the general principle which ousts the jurisdiction of justices when a bond fide claim of right is asserted; and that the justices were not bound to abstain from adjudicating until satisfied that the act had been done under a fair and reasonable - supposition of right (b). So, where one act empowered justices to enforce the payment of costs given by the Queen’s Bench on appeal against convictions, except where the party lable was under recognizances to pay such costs; and a later one authorized the Quarter Sessions to give costs in “any appeal,” to be recovered in the manner provided by the first Act ; it was held that the exception in that Act was impliedly repealed, (a) 11 & 12 Vict. c. 123,83, 299. 9 & 10 Vict. c. 95, 8. 58; R. wu (6) White v. Feast, LR. 7 Harden, 2 E. & B. 288, 22 LJ. QB. 353. Digitized by Microsoft® REPEAL BY IMPLICATION-—NEGATIVE ACTS. 198 and that a distress warrant had been properly issued against the party liable, though he was under recog- nisances (a). The Judicature Act of 1873 repealing in general 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). An enactment that the custos rotulorum shall nominate a fit person to be clerk of the peace quamdiu bene se gesserit, impliedly repealed an earlier one which authorised the appointment durante bene placito; for a grant under the former would be inconsistent with one under the latter of the above Acts(c). Where an Act made it actionable to sell a pirated copy of a work with know- ledge that it was pirated, and a subsequent Act con- tained a similar provision, but without any mention of guilty knowledge, it was held that the earlier Act was so far abrogated that an action was maintainable (a) 11 & 12 Vict. c. 43,8.27, in Mersey Docks v. Lucas, 51 12 & 13 Vict. c. 45, 8.5; Free- LJ. QB.116; Gardner v. Whit- man v. Read, 9 CB. NS. 301, ford, 4 CB. NS. 665. 30 LJ. MC. 123. (c) Owen v. Saunders, 1 Lord (6) Garnett v. Bradley, 3 App. Raym. 159. 944. See also per Jessel MR. Digitized by Microsoft® 194 INTERPRETATION OF STATUTES. for a sale made in ignorance of the piracy (a). Where one Act imposed a penalty of 5s. for killing or selling a wild bird between March and August, unless it was proved that the bird had been brought from abroad before March ; and a later one, after reciting that this enactment was insufficient for the protection of wild birds during the breeding season, imposed a penalty of 20s. for killing or possessing a wild bird between February and July, it was held that the later Act impliedly repealed the earlier Act, so that it was no excuse that the bird had been imported (b). Where an Act required that a consent should be given in writing ‘attested by two witnesses, and a subsequent 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). The 1 Eliz. c. 1, which empowers the queen to autho- rise ecclesiastical persons to administer ex officio oaths to supposed offenders, was impliedly repealed by the 16 Car. L., which took away the oaths(d). 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 (a) West » Francis, 5B. & A. per Jervis C.J. in Jeffreys a 737 ; Gambart » Sumner, 5 H. Boosey, 4 HL. 943; and per & N. 51, 29 LJ. Ex. 98. Lord Wensleydale in Kyle +. (4) Whitehead v. Smithers, Jeffreys, 3 Macq. 611, 31 LJ. 2 CPD. 553. Ex. 355n. (c) Cumberland v. Copeland, (d) Birch v, Lake, 1 Mod. 1H. & C. 194, 31 LJ. Ex. 353; 185. Digitized by Microsoft® REPEAL BY IMPLICATION. 195 registered and who gave security, it was held that the earlier was repealed pro tanto by the later Act (a). : Where a statute contemplates in express terms that its enactments will repeal earlier Acts, by their incon- sistency 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 trustees of a turnpike to keep their accounts and proceedings in books to which “all persons” should have access, the General Turnpike Act, which recited the great import- ance that one uniform system should be adhered to in the laws regulating turnpikes, and enacted that former laws should continue in force, except as they were thereby varied or repealed, directed that the trustees should keep their accounts in a book to be open to the inspection of the trustees and creditors 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 the proceedings given by the first Act to “ all persons” was repealed (0). Again, if the co-existence of two sets of provisions would be destructive of the object for which the later was passed, the earlier would be repealed by the later. Thus, when a local Act empowered one body to name (a) Exp. Carruthers, 9 East, (6) R. v Northleach, 5 B, & 44, Ad, 978. a 2 Digitized by Microsoft® 196 INTERPRETATION OF STATUTES. the streets and to number the houses in a town, and another local Act gave the same power to another body, the earlier would be superseded by the later Act; for, to leave the power with both, would be to defeat the object of the Legislature (a). Butifone 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 (6). 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 productive of inconve- nience; for the just inference from such a result would be that the Legislature intended to take the earlier right away(c). Thus, the Joint Stock Banking Act of 7 Geo. 4, c. 46, which besides limiting and varying the common law liabilities of members of banking companies, provided 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 (d), for from the nature (a) Daw » Metropolitan 429. Board, 31 LJ. CP. 223, 12 CB. (6) Phipson v Harvett, 1 C. NS. 161. See Cortis v Kent, M. & R.473. Comp. Brown. z. Waterworks, 7 B. & C. 314; G. W.R. Co, 51 LJ. QB. 529. R. v. Middlesex, 2 B. & Ad. 818; (c) See inf. chap. 8, s. 1. Bates v, Winstanley, 4 M. & S. (d) Steward v. Greaves, 10 Digitized by Microsoft® REPEAL BY IMPLICATION. 197 of the case, this must have been what the Legislature intended (a). In other circumstances, also, the inconvenience or incongruity 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 tanto 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 service. 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 begin- ning the afternoon service at one or at five P.M. an intention too singular to be lightly attributed to the Legislature (6). M. & W. 711; Chapman 2, Mil- vain, 5 Ex. 61, 1 LM. & P. 209; Davison v. Farmer, 6 Ex. 252; O'Flaherty v. McDowell 6 HL. 142. See also Green ». R. 1 App. (H.L.), 513. Roles ». Rosewell, and Hardy v. Bern, 5 TR. 538, (a) Per Lord Cranworth in O'Flaherty v. Mc Dowell, 6 HL. 157. See Cowley v, Byas, 5 ChD. 944. (6) R. vw Whiteley, 3H. &N. 143; Whiteley v Heaton, 27 LJ. MC. 217, SC. See Harris v. Jenns, 9 CB. NS. 152; 30 LJ. 183; R. » Senior, 1 L. & C. 401, 33 LJ. MC. 125; R. v. Bucks, 1 E. & B, 447; R. -», Knapp, 22 LJ. MC. 139, 8.0. See another example of a simi- lar kind, in Manchester (Mayor) v. Lyons, 22 Ch. D, 277. Digitized by Microsoft® 198 INTERPRETATION OF STATUTES. An intention to repeal an Act may be gathered from its repugnancy to the general course of subsequent legislation. Thus the 7 Geo. 1, c. 21, which pro- hibited bottomry loans by Englishmen to foreigners on foreign ships engaged in the Indian trade, was held to have been silently repealed by the subsequent en- actments 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). SECTION II.—CONSISTENT AFFIRMATIVE ACTS. But repeal by implication is not favoured (6). It is a reasonable presumption that the Legislature did not intend to keep really contradictory enactments in the statute-book, or to effect so important a measure as the repeal of a law without expressing 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. It is sometimes found that the conflict of two statutes is apparent only, as their objects are different, and the language of each is therefore restricted, as (a) The India, Br. & L. 221. in 32 & 33 Vict. c. 68; Re See also R. v. Northleach, 5 B. Yearwood’s trusts, 5 Ch. D. & Ad. 978. Comp. per Ex. Ch. 545, in Shrewsbury v. Scott, 6 CB. (b) Foster's Case, 11 Rep. NS. See another illustration 63a. Digitized by Microsoft® CONSISTENT AFFIRMATIVE ACTS. 199 pointed out in the preceding chapter, to its own object or subject. When their language is so confined, they run in parallel lines, without meeting. Thus the real property statute of limitations, 3 & 4 Will. 4, c. 27, which limits the time for suing for the recovery of land (which 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 & 3 Will. 4, c. 100, which enacts that claims to ex- emption from tithes shall be valid after non-payment for thirty years; for the former Act dealt with con- flicting claims to the right of receiving tithes which are admittedly payable ; while the latter related to the liability to pay them (a). In the one case, tithe was real property, in the other, a chattel (6). So, the 1 & 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 hereditaments in which the judgment debtor had an interest, was held to be limited to the property of debtors who had the power of charging their property, that is, to lay rectories, advowsons, and tithes, and so (a) Ely (Dean of) v Cash,15 2 L. M. & P. 268 and 271; M. & W. 617. Grant v. Ellis, 9 M. & W. 113; (6) Ely (Dean of) ». Bliss, 2 Manning. v. Phelps, 10 Ex. 59, De G. M. & G. 459. See also 24 LJ. 62; Harden v. Hesketh, R. v. Everett, 1 E. & B. 273; 4H. & N. 175, 28 LJ. 137. Adey v. Trinity House, 22 LJ. Comp. R. v Everett, 1 E. & B. QB. 3, 5.C.; Hunt » Gt. 273,22 LJ.3; Re Knight, 1 Ex. Northern R. Co, 10 CB. 900, 802. Digitized by Microsoft® 200 INTERPRETATION OF STATUTES. did not conflict with or repeal by implication the 13 Eliz. c. 10, which makes void all chargings of ecclesiastical property in ecclesiastical hands (a). 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 occasional only, and both therefore can stand (0). 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 workhouse, or for the support of the poor, was held unaffected by the 4 & 5 Will. 4, c. 76, 8. 77, which inflicted a fine of 5/., 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 (c). It had been de- cided 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 indi- vidual pauper (d). The 56 Geo. 3, c. 50, (relating to the sale of farm stock in execution), in providing that no assignee in (a) Hawkins v. Gathercole, ChD. 27. 6 McN. De G & G. 1, 11, (c) Robinson v. Emerson, 4 24 LJ. Ch. 332. H. & C, 352. (6) Re Murphy, 2 QBD. 397. (d) Proctor v. Manwaring, 3 See another, Exp. Attwater, 5 B.& A. 145, Digitized by Microsoft® CONSISTENT AFFIRMATIVE ACTS. 201 bankruptcy or under a bill of sale, and no purchaser of farm stock, should be entitled to dispose of any stock intended for use on the land in any other manner than the tenant ought to have disposed of it, was limited in construction to the purchases from tenants ; but as not affecting the 2&3 W. & M. c. 5, which imposes on the landlord the obligation of selling distrained goods at the best price, and therefore as not justifying him in selling under the conditions of the 56 Geo. 3 (a). The later Act showed no intention to modify the law of distress. So, an Act which imposes, for police purposes, a penalty for retailing excisable liquors without a ma- gistrate’s license, would not be affected by an excise Act of later date, which, after imposing a duty on persons licensed by magistrates, 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 (b). The 1 Will. 4, c. 64, which imposes on beer retailers licensed by the Excise, a penalty of from 10/. to 20/., on conviction before justices, for selling beer made otherwise than of malt and hops, or for mixing any drugs with it, or for diluting it, was held not to affect the 56 Geo. 3, c¢. 58, which punished with a penalty of 2001. any retailer of (a) Ridgway v. Stafford, 3E. 519; R. v Downes, 3 TR. 560. & B. 563; Hawkins v. Walrond, See Buckle v. Wrightson, 5 B. 1 CPD. 280. & 8. 854, 34 LJ. 43; and Ash (6) R. » Hanson, 4 B. & A. v, Lynn, LR. 1 QB. 270. Digitized by Microsoft® 202 INTERPRETATION OF STATUTES. beer who had in his possession, or put into his beer, any colouring matter or preparation in lieu of malt and hops ; partly because the objects of the two en- actments were not identical, the Jater one having solely a sanitary object in view, and the protection of the consumer ; while the earlier was aimed as much at the repression of frauds on the revenue (a). It is to be added, also, that the 56 Geo. 3, c. 58, was. expressly kept in force by the 1 Will. 4, c. 51, passed a week before the 1 Will. 4, c. 64. Where a general intention is expressed, and also a particular intention which is incompatible with the general one, the particular intention is considered an exception to the general one (b). Even when the later, or later part of the enactment is in the negative, it is sometimes reconcilable with the earlier one by so treating it. If, for instance, an Act in one section authorised a corporation to sell a particular piece of land, and in another prohibited it to sell “ any land,” the first section would be treated not as repealed by the sweeping terms of the other, but as an exception to it (c). In this manner two Acts passed in 1833 were construed as reconcilable. (a) Atty.-Genl. v. Lockwood, M. & W. 615; Taylor a Old- 9M. & W. 878. See Palmer ham, 4 ChD. 395, 46 LJ. 105. Thatcher, 3 QBD. 350. (c) Per Romilly M.R. in De (b) Per Best, CJ. in Churchill Winton v Brecon, 28 LJ. Ch. v. Crease, 5 Bing. 180. Andsee 600. ex. gr. Pilkington ». Cooke, 16 Digitized by Microsoft® NEGATIVE ‘ACTS AFFIRMATIVE INTER SE. 203 The 3 & 4 Will. 4, c. 27,8. 42, which provided that no action for rent, or for interest on money charged on land should be brought after six years, and the 3 & 4 Will. 4, c. 42, passed three weeks later, which provided that no action for rent reserved by lease under seal, or for money secured by bond or other specialty, should be brought after twenty years, were construed as reconcilable, by holding that the later enactment was an exception out of 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 they were secured by cove- nant or other specialty, in which case twenty years’ arrears were recoverable (a). 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). For instance, the (2) Hunter v. Nockolds, 1 Mc. N. & Gord, 640, Paget ». Foley, 2 Bing. NC. 679, Sims ». Thomas, 12 A. & E. 535, Hum- frey v. Gery, 7 CB. 567. See also Cobham vw. Dalton, LR. 10 Ch. 655; Re Deere, Id. ; Richens v. Wiggins, 3 B. & §. 953, 32 LJ. 144. Comp. Round v. Bell, 30 Beav. 121. Rent is a specialty debt within the 32 & 33 Vict. c. 46, in the administra- tion of assets, Talbot v. Shrews- bury, LR. 16 Eq. 26, 42 LJ. 877; Re Hastings, 6 ChD. 610, 47 LJ. 137, (6) Per Maule J. in Clack ». Sainsbury, 11 CB. 695, 2 L. M. & P. 627, 631. Digitized by Microsoft® 204 INTERPRETATION OF STATUTES. 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 Vict. c. 37, that “no” bill or note payable at twelve months or less should be void on that ground, but with the additional provision that the Act was not to apply to loans on real security ; and it was held that the last-mentioned Act did not repeal the 3 & 4 Will. 4. The negative words, in which both were ex- pressed, had reference to the Act of Anne; but 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). Further, it is laid down generally, that when the later enactment is worded in affirmative terms only, without any negative expressed or implied, it does not repeal the earlier law (b). Thus, an Act which authorised 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, and would therefore not repeal it by implication (c). The 7 & 8 Will. 3, c 34, s. 4, which provided that (a) Clack v. Sainsbury, ubi (6) Co. Litt. 115a, Anon, sup.; Nixon v. Phillips, 7 Ex. Lofft, 465; Muir v. Hore, 47 188, 21 LJ. 88; Exp. Warring- LJ. MC. 17. ton, 3DeG. M. &G. 159, 22 LJ. (ec) Co. Litt. 115a, 2 Inst. Bank, 33. 200. Digitized by Microsoft® CONSISTENT AFFIRMATIVE ACTS. 205 when a quaker refused to pay tithe or church rates, it should be lawful for two justices to order and enforce payment if the sum due was under ten pounds, was held not to repeal the 27 Hen. 8, which gave jurisdiction to the Ecclesiastical Courts in such mat- ters (a). So, an Act which imposes a liability on certain persons to repair a road, would not be con- strued as impliedly exonerating the parish from its common law duty to do so(b). A bye-law which authorised the election of “ any person” as chamber- lain of the city of London was not deemed incon- sistent with an earlier one which required of the candidates a certain qualification, but was limited to eligible persons (c). A local Act, in directing that the chimneys of buildings should be built of such materials as the Corporation approved, did not affect the provi- sions of the earlier general Act (3 & 4 Vict. c. 85, s. 6), which required that chimneys should be built of stone or brick (d). A bye-law made under the 74th (a) R. v Sanchee, 1 Lord due of divine origin, Lecky, Raym. 323. Many of the clergy, in the 18th century, persisted, in consequence, in suing quakers in the Ecclesiastical Courts for such trivial sums as 4s. or 5s, in order to inflict heavy costs and imprisonment. Walpole tried to alter the law, but the Church cried out that it would be perse- cution to compel the clergy to recover before magistrates a Hist. Eng. in 18th cent., vol. i. p. 260, (6) R.v. St. George’s Hanover Square, 3 Camp. 222; R. wv Southampton, 21 LJ. MC. 201; Gibson ». Preston, LR. 5 QB. 219. (c) Tobacco Pipe Makers ». Woodroofe, 7 B. & C. 838. (d) Hill v, Hall, 1 Ex.D. 411, Digitized by Microsoft® 206 INTERPRETATION OF STATUTES. 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 Regulation Act of 1869, which requires that children under thirteen employed in a workshop shall be sent to school for at least ten hours weekly (a). 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 (b). A bond by a col- lector, with one surety, good under the ordinary law, would not be deemed invalid because the Act which required it enacted that the collector should give good security by a joint and several bond with two sureties at least (c). The 30 & 31 Vict. c. 142, which authorises a judge of the Superior Court in which an action is brought, to send the case for trial to a County Court, was con- strued as not impliedly repealing the earlier enact- (a) 30 & 31 Vict. c 146, Ambergate R. Co. v. Midland R. s. 24; Berry v Cherryholm, Co., 2 E. & B. 793. 1 Ex. D. 457. - (c) Peppin v. Cooper, 2 B. & (b) 7 Vict. c. 15; Caswell» ) East Gloucestershire R. lessee, the lease shall be void, Co. », Bartholomew, LR. 3 Ex. is construed as voidable only at 15, Comp., however, R. v. the option of the lessor. The Staffordshire, 7 Fast, 549, and literal construction would en- Exp, Parbury, 3 De G. F. & J. able a lessee to get rid of an 80, sup., p. 12. onerous lease by wilfully break- Digitized by Microsoft® 252 INTERPRETATION OF STATUTES. On similar grounds, probably, enactments which avoid or abridge the effect of conveyances, contracts, and instruments, have generally received a construction more compatible with the obvious object and policy of the Legislature than with the natural meaning of the language: Thus, the Actof William 3, which declared void all conveyances of property “in order to multiply “ voices,” does not apply where the vendor is not privy to the illegal object (a). Though the Act of 13 Eliz. c. 10, made “utterly “ void and of none effect, to all intents, constructions, and purposes,” all leases by ecclesiastical persons and bodies, other than for twenty-one years or three lives, the prohibited leases have always been held valid as against the lessor, when a corporation sole, and even when a corporation aggregate with a head, during the life of its head (b); probably on the principle of a personal estoppel by reason of a personal’ interest in the head of the corporation (c). When it has no head, indeed, the Act receives necessarily its primary and natural meaning ; and the lease is void ab initio (d ). If it did not make the lease altogether bad, the latter (a) Marshall v Bown, 7 M. & Gr. 188; Hoyland v. Bremner, 2 CB. 84; sup. 107. (0) Bishop of Salisbury’s Case, 10 Rep. 606. Co, Litt. 45a; Lincoln College Case, 3 Rep. 60a ; Bac. Ab. Leases, H. See also Roberts v. Davy, 4 B. & Ad. 664; Davenport % R., 3 App. 115. (c) Per Lord Cairns, 4 App. 333. (d) Magdalen Hosp. v. Knotts, 4 App. 324, Digitized by Microsoft® AGAINST IMPAIRING OBLIGATIONS. 253 would be altogether good (a); which would be con- trary to every possible construction of the Act. An Act which required that indentures for binding parish apprentices should be for the term of seven years at least, declaring that otherwise they should be “void to all intents and purposes, and not available “in any court or place for any purpose whatever,” was held, nevertheless, to make an indenture for a shorter term only voidable at the option of the master. or apprentice ; or at all events to leave it so far valid that service under it sufficed to gain a settlement (b). The Act of 3 Hen. 7, ¢. 4, which declared that gifts of goods and chattels in trust for the donor and in fraud of his creditors should be “ void and of none effect,” was early held to be so only as to those who were prejudiced by the gift, but not as between the parties(c). And the 13 Eliz. c. 5, would not include a conveyance for valuable consideration, though made | with intent to defeat an execution creditor (d). Even as regards the persons prejudiced, the transaction is not void ipso facto, but only voidable at their op- (a) Per Cresswell J. in Young Burgess’s Case, 15 ChD. 507. »v, Billiter, 25 LJ. QB. 178, 6 (c) Ridler » Punter, Cro. E, & B. 1. Eliz. 291; Bessey » Windham, (6) 5 Hlizs « 4; R. v St. 6 QB. 166. See Philpotts v. Nicholas, 2 Stra. 1066, Ca. Philpotts, 10 CB. 85. Temp. Hardw. 323; Gray ». (d) Wood ». Dixie, 7 QB. Cookson, 16 East, 13; R.v. St. 892; Darvill v. Terry, 6 H. & Gregory, 2 A. & E. 107; Oakes N. 807, 30 LJ, Ex. 354, vy. Turquand, LR, 2 HL, 325; Digitized by Microsoft® 254 INTERPRETATION OF STATUTES, tion(a). The 137th section of the Bankrupt Act of 1849, which enacted that a judge’s order to enter up judgment, made against a trader with his consent, should be “null and void to all intents and purposes “whatever,” if not filed as required by the Act, was construed as making the judgment void only as against his assignees, but not as against himself. A literal construction would have enabled the trader to treat his creditor who took out execution on the judg- ment to which he had consented, as a trespasser (0). On the same ground, a section which declared a war- rant of attorney under certain circumstances “void to “all intents and purposes,” was held to mean only that it was void against the assignees in bankruptcy of the person who had given it; although in another section the warrant was declared to be “ void against “the assignees” if not filed. The difference in the language of the two sections was considered by the majority of the Court as insufficient to establish any substantial difference of intention, when the conse- quence would be to enable a person to defeat his own act (c). Though the Sunday Act has the effect of avoiding contracts made on Sunday by and with tradesmen and (a) See the cases in Young Dowl. 350. wv. Billiter, 6 E. & B. 1, 8 HL. (c) Morris v. Mellin, 6 B. & 682. C. 446; Bennet v. Daniel, 10 (5) Bryan v. Child, 1 L.M. B. & ©. 500. See Davis », & P. 429; Green v Gray, 1 Bryant 6 B. & ©, 651, Digitized by Microsoft® IMPAIRING OBLIGATIONS. 255 other classes of persons, in the course of their ordinary calling, the invalidity affects only those persons who, when contracting with them, knew their calling ; but those who dealt with them in ignorance of it would be entitled to sue on thé contract (a). Tn all these cases the intention of the Legislature was considered as completely carried out by the re- stricted scope given to its enactments. But where, having regard to the general policy of the Act as well as to the language and the structure of the sentence, it would not have that effect, the words abridging or avoiding the effect of instruments, contracts, and deal-. ings would receive their primary and natural meaning. — Thus, in the Bills of Sale Act of 1854, assignments not registered were null and void in the full and natural sense of the words (b); and so, contracts for the sale of a ship and marine insurances (c) not in ‘conformity with the Ship Registry Act of 8 & 9 Vict. (d). It was held that the owner of a vessel who pledged the ship’s certificate of registry for good consideration, might redemand the certificate, and sue the pledgee if he did not return it, though thus defeating his own act; the 50th section of the Merchant Shipping Act of 1854 and the plain policy of the law expressly forbidding all dealings with the (2) Bloxome »v Williams, 3 (ec) Re Arthur Assoc., LR. B. & C. 232. 10 Ch. 542, 44 LJ. 509. (b) See ex. gr. Richards v. (d) Duncan v, Tindall, 13 James, LR. 2 QB. 285. CB, 258. Digitized by Microsoft® 256 INTERPRETATION OF STATUTES, certificate except for the purposes of navigation (a). So, in the case cited’ in an earlier page, where an Act recited the mischiefs occasioned by binding parish apprentices without the sanction of justices, and enacted that no indenture of such apprenticeships should be valid unless approved by two justices, under their hands and seals; it was held that an indenture, approved under hand but not under seal, was abso- lutely void (6). The same effect was given, in an action by the trustees against their lessee for rent which had been made payable to them, to an Act which provided that every lease of turnpike tolls should: make the rent payable to the treasurer, in default of which it should be “null and void ” (c). Where a statute not only declares a contract void, but imposes a penalty for making it, it is not voidable merely (d). The penalty makes it illegal. In general,. however, it would seem that where the enactment has relation only to the benefit of particular persons, the word “void” would be understood as “ voidable” only, at the election of the persons for whose protec- tion the enactment was made, and who are capable of protecting themselves; but that when it relates to (a) Wiley v. Crawford, 1 B. (c) Pearse v. Morrice, 2 A. & & S. 253, 30 LJ. 319. E. 84. Comp. Hodson ». Sharpe, (b) R. v. Stoke Damerell, 7 10 Fast,. 350.. B. & C. 563, sup. p. 9. See (d) Gye v. Felton, 4 Taunt, also R. v. Bawbergh, 2B.&C. 876, 222, Digitized by Microsoft® RETROSPECTIVE OPERATION AS REGARDS RIGHTS. 257 persons not capable of protecting themselves, or when it has some object of public policy in view which requires the strict construction, the word receives its natural full force and effect (a). SECTION IV. — RETROSPECTIVE OPERATION. — 1. AS REGARDS VESTED RIGHTS.—2. AS REGARDS PROCEDURE. Upon the presumption that the Legislature does not intend what is unjust rests the leaning against giving certain statutes a retrospective operation (b). Nova constitutio futuris formam imponere debet, non precteritis. They are construed as operating only on cases or facts which come into existence after the statutes were passed (c), unless a retrospective effect be clearly intended. It is chiefly where the enactment would prejudicially affect vested rights, or the legal character of past transactions, that the rule in question prevails. Every statute, it has been said, which takes away or impairs (a) See per Bayley J. in R. (c) Per Erle C.J. in Midland v. Hipswell, 8 B.&C. 471. See R. Co. v Pye, 10 CB. NS. 191; also Betham v. Gregg, 10 Bing. er Cockburn CJ. 2 QBD. 269 ; 352, and Storie » Winchester, per Pollock CB. in Young v. 17 CB. 953. Hughes, 4 H. & N. 76; Vansit- (6) 2 Inst. 292. tart v. Taylor, 4 E. & B. 910. 8 Digitized by Microsoft® 258 INTERPRETATION OF STATUTES. 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 considera- tions already past, must be presumed, out of respect to the Legislature (a), to be intended not to have a retrospective operation (b). Thus, the provision of the Statute of Frauds, that no action should be brought to charge any person on any agreement made in con- sideration 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 (c). The Mortmain Act, in the same way, was held not to apply to a devise made before it was enacted (d). 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 apportionable 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 opera- tion (e). The testator was presumed to have in view (a) Per Chancellor Kent in Dash v. Van Kleek, 7 Johnson, 502, &e. (6) Per Story J. in Soc. for 227; 2 Mod. 310; Ash v. Abdy, 53 Swanst. 664. See also Doe v. Page, 5 QB. 767 ; Doev. Bold, 11 QB. 127. Propag. of Gosp. v. Wheeler, 2 Gallison, 139; and see per Chase C.J. in Calder v. Bull, 3 Dallas, 390. (c) Gilmore v Shuter, 2 Lev. (d) Atty.-Genl. v Lloyd, 3 Atk. 551; Ashburnham ». Brad- shaw, 2 Atk. 36. (e) Jones vz. Ogle, LR. 8 Ch. 192, Digitized by Microsoft® RETROSPECTIVE OPERATION AS REGARDS RIGHTS. 259 the state of the law when he made his will. The con- trary presumption that the testator who left his will unaltered after the Act was passed, intended 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 maintained for a wager, applied only to wagers made after the Act was passed (b); and the Kidnapping Act of 1872, which made it unlawful for a vessel to carry native labourers 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 Vict. c. 19, which declared that extra-parochial places should, for poor-law and_ other purposes, be deemed parishes, was held not retrospective, so as (a) Per Jessel MR. in Has- (c) 36 & 37 Vict. c 19, luck v. Pedley, 19 Eq. 274. Burns v. Nowell, 5 QBD. 444, (6) Moon v Durden, 2 Ex. 49 LJ. 468. 22; Pettamberdass v. Thacokor- (d) Hickson v. Darlow, ChD. seydass, 7 Moo. PC. 239. See Feby. 1883. Exp. White, 33 LJ. Bey. 22. 82 Digitized by Microsoft® 260) INTERPRETATION OF STATUTES. to confer the status of irremovability on a pauper who had resided in such a place for five years before the Act (a). 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 (b). Even a statute which confers a benefit, such as abolishing a tax, would not be construed re- trospectively, 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 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 (c). 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-executing 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 (a) R. » St. Sepulchre, 28 4», Lucas, 3 App. 582. LJ. MC. 187, 1 E. & E. 813 ; and (b) Exp. Hutchins, 4 QBD. see R. v. Ipswich Union, 2QBD. 90. -269 ; Sunderland v. Sussex, 51 (c) Prince v, U.S., 2 Gallison, LJ. MO. 33; Barton Regis % 204. Liverpool, 3 QBD. 295 ; Gardner Digitized by Microsoft® RETROSPECTIVE OPERATION AS REGARDS RIGHTS. 261 the Act (a). To apply such an enactment to past transactions, even though the property had been com- pletely distributed among the creditors who had signed, would have been so unjust, that it was jus- tifiable to seek any means of getting rid of the appa- rent effect of the word “now,” which was accordingly understood as restricted to arrangements not com- pleted but yet binding in equity at the time when the Act was passed. So, a non-trader was held not liable to adjudication as a bankrupt in respect of a debt contracted before the enactment, which first made non-traders liable to the bankruptcy laws (b). 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 operation ; though the payment was not made till after it was in force (c). Although the Divorce Act, 20 & 21 Vict. c. 85, provided that when a magistrate’s order for protecting a deserted married woman’s property against her husband was made, the woman should be, and “be deemed to have been gins, 13 CB. NS. 220; 32 LJ. (a) 12 & 13 Vict. c. 106; 131. Comp. Elston v. Braddick, Waugh v. Middleton, 8 Ex. 352, 22 LJ. Ex. 109; Marsh ». Hig- gins, 9 CB. 551; 1L. M. & P. 253; Larpent v. Bibby, 5 H.L. 481; 24 LJ. QB. 301; Noble v. Gadban, 5 H.L. 504; Exp. Phoenix Bessemer Co., 45 LJ. Ch. 11. See also Reed v, Wig- 2 Cr. & M. 435; Exp. Dawson, LR. 19 Eq. 433. (>) Williams v. Harding, LR. 1 HL. 9. (c) Re Earl Cornwallis, 25 LJ. Ex. 149, 11 Ex. 580. Digitized by Microsoft® 262 INTERPRETATION OF STATUTES. “ 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 desertion (a). She had no right to sue before the order was obtained, and the Act did not intend to cast a liability on the defendants that they were not already under, and take away their detenae from them, by such an order (0). 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 “ from thenceforth” ; the interpolation being deemed justifiable to avoid the apparent injustice of giving a retrospective effect to the disclaimer, and making a man a trespasser by re- lation (c). But this construction was rejected by the Common Pleas, on the ground that the enactment really worked no injustice in operating retrospec- tively (d). The first section of the Mercantile Law Amendment Act of 1856, which provides that no fi, fa. shall pre- (a) The Midland R. Co. » (c) Perry v. Skinner, 2 M. & Pye, 10 CB. NS. 179, 30 LJ. W. 471; and per Cresswell J. CP. 314. in Stocker v Warner, 1 CB. (6) Per Erle CJ. Id.; Comp. 167. Warne v, Beresford, inf. 271. (d) R. v Mill, 10 CB. 379. Digitized by Microsoft® RETROSPECTIVE OPERATION AS REGARDS RIGHTS. 268 judice the title to goods, of a bond 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 retrospective, would have divested him of a right which he had acquired (a). The 14th section of the same Act, which provides that a debtor shall not lose the benefit of the Statute of Limitations 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 (6). 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 (c). The 23 & 24 Vict. c 38, s. 4, which enacted that no judgment which had not already been, or should not thereafter be entered and docketed, should have any preference against heirs or personal repre- (a) Williams v. Smith, 4H. & B. 778, 27 LJ. QB. 448. & N. 559, 28 LJ. Ex. 286. (c) Re Suche & Co., 1 ChD. (6) Jackson v. Woolley, 8E. 48. Digitized by Microsoft® 264 INTERPRETATION OF STATUTES. sentatives, in the administration of the property of the deceased debtor, did not, for a similar reason, extend to a judgment obtained against a debtor who had died before the Act was passed (a). But a statute is not retrospective, in the sense under consideration, because a part of the requisites for its action is drawn from atime antecedent to its passing (0). If the debtor, in the case just mentioned, had not died until after the Act, the omission to register would have been fatal ; as that step was made by the Act essential to the creditor’s right, and it would not be giving a retrospective operation to the Act to apply it to a state of circumstances not past and complete, but continuing after it was passed. The 5th section of the Mercantile Law Amendment Act, which entitles 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 opera- tion (c). The 2nd section of the Infants’ Relief Act, which enacts that no action shall be brought on a rati- fication, made after majority, of a contract made during infancy, was held to apply to ratifications of contracts (a) Evans v. Williams, 2 Dr. 2. Portsea, 7 QBD. 384, 50 LJ. & & 324, 34 LJ. 661. 144. Exp. Dawson, 19 Eq. (0) Per Lord Denman in R. 433. v. St. Mary, 12 QB. 127; R. v (c) Re Cochran’s Estate, LR. Christchurch, Id. 149. See R. 5 Eq. 209. Digitized by Microsoft® RETROSPECTIVE OPERATION AS REGARDS RIGHTS. 265 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 Con- veyancing 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). In general, when the law is altered pending an ac- tion, 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 treat- ment “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 (d). An administration bond given to (a) Exp. Kibble, LR. 10 Ch. Quilter v. Mapleson, 9 QBD. 373. 672. (v) Page v. Bennett, 2 Giff. (d) Thistleton v. Frewer, 31 117, 29 LJ. Ch. 398. LJ. Ex. 230; Wright v. Green- (c) 44 & 45 Vict. c. 41,8.14; royd, 1B. & 8. 758, 31 LJ. 4. Digitized by Microsoft® 266 INTERPRETATION OF STATUTES. the Ordinary not being assignable until the 21 & 22 Vict. c. 95, an action begun by the assignee before that Act was passed, was held not maintainable after it came into operation (a). It is hardly necessary to add, that whenever the intention is clear that the Act should have a retro- spective operation, it must unquestionably be so con- strued, however unjust and hard the consequences may appear (b). Thus, an Act (33 & 34 Vict. c. 29, s. 14), which enacted that every person “convicted of felony” should for ever be disqualified from selling spirits by retail, and that if any such person should take out, or have taken out a licence for that purpose, it should be void, was held to include a man who had been con- victed of felony before, and had obtained a licence after the Act was passed. Although the expression “ convicted of felony ” might have been limited to per- sons who should thereafter be convicted, yet, as the object of the Act was to protect the public from having beerhouses kept by men of bad character, the language was construed in the sense which best advanced the remedy and suppressed the mischief; though giving, perhaps, a retrospective operation to the enactment (c). Comp. Leman v, Housley, LR. Bing. 615. 10 QB. 66. Snr: (c) Hitchcock v. Way, 6 A. (a) Young v. Hughes, 4H.& &E. 947; R.. Vine, LR.10 QB. N. 76. 195, 44 LJ. MC. diss. Lush J. ; (b) See ex. gr. Stead v. Carey, Chappell v. Purday, 12M. & W. 1 CB. 496; Bell v Bilton, 4 303. Digitized by Microsoft® RETROSPECTIVE OPERATION AS REGARDS RIGHTS. 267 The provision in the Bankrupt Act of 6 Geo. 4, which protected “all payments made or which should there- “ after be made” by a bankrupt before his bankruptcy, necessarily had a retrospective effect, unless the expres- sion of payments “made” were to be altogether nugatory (a). After the passing of Lord Tenterden’s Act, 9 Geo. 4, ¢. 14, which enacted that in actions grounded upon simple contracts, no verbal promise should be “ deemed sufficient evidence” of a new con- tract 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 re- ceived in evidence in an action begun before, but not tried till after the passing of the Act (b). This deci- sion has been supported on the ground that the time for deciding what is or is not evidence, is when the trial takes place ; 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 (c). But some stress is also to be laid on the circumstance that the Act did not come into operation until eight months after its passing ; for the concession of this interval seemed to show that the hardship in question had (a) Churchill ». Crease, 5 (c) Per Cresswell J. in Marsh Bing. 177. v. Higgins, 9 CB. 551, 1 L. M. (6) Hilliard v. Lenard, M. & & P. 263. But comp. sup., M. 297; Towler v. Chatterton, p. 265, 6 Bing. 258. Digitized by Microsoft® 268 INTERPRETATION OF STATUTES. been in the contemplation of the legislature, and had been thus provided for (a). So, an Act which was passed in August, but was not to come into operation till October, made non-traders liable to bankruptcy, applied to a person who contracted a debt and com- mitted an act of bankruptcy between those dates. It was considered that no injustice was done, since the Act had told him what would be the consequence of contracting the debt, before he contracted it (b). On this ground, also, it was held that the 11 & 12 Vict. c. 43, 8. 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 (c); though the interval between the passing of the Act and its coming into operation was only six weeks. If the Act had come into immediate operation, it was observed, the hardship 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 in- timation that the Legislature had provided it as the (a) Per Park J. 6 Bing. 264. QB. 343, 21 LJ. MC. 193. See (6) Exp. Rashleigh, 2 ChD. per Bovill C.J. in Ings v. London 9; comp. Williams ». Harding, and 8S. W. R. Co., LR. 4 CP. LR. 1 HL. 9. 19, (c) R. » Leeds R. Co, 18 Digitized by Microsoft® RETROSPECTIVE OPERATION AS REGARDS RIGHTS. 269 period within which proceedings respecting antecedent matters might be taken (a). In the same way the 10th section of the Mercan- tile Law Amendment Act, 1856, which enacted that no person should be entitled 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 inference that no such intention had been entertained, as none was expressed, as regards cases under the 10th section (0). In both of the above cases, however, the construc- tion, 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, in both, it seems to fall within the general principle that the presump- tion against a retrospective construction has no appli- cation to enactments which affect only the procedure and practice of the Courts (c), even where the altera- tion which the statutes makes has been disadvan- tageous to one of the parties. Although to make a law for punishing that which, at the time when it was (a) Per Lord Campbell, 18 ». Bingham, LR. 4 Ch. 735. QB. 346. (c) Wright v. Hale, 6H. & N. (6) Cornhill v Hudson, 8 KE. 227; 30 LJ. Ex. 40, & B. 429; 27 LJ. QB. 8; Pardo Digitized by Microsoft® 270 INTERPRETATION OF STATUTES. done, was not punishable, is contrary to sound prin- ciple; a law which merely alters the procedure may, with perfect propriety, be made applicable to past as well as future transactions (a); and no secondary ‘meaning is to be sought for an enactment of such a kind. No person has a vested right in any course of procedure (b). He has only the right of prosecution or defence in the manner prescribed for the time being, by or for the Court in which he sues; and if an Act of Parliament 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, 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). (2) Macaulay’s Hist. Eng. vol. iii. 715; and vol. v. 43. (6) Per Mellish L.J. in Costa Rica 2. Erlanger, 3 ChD. 69. See ex. gr. The Dumfries and other cases, sup. 184. (c) See the judgments of Wilde B. in Wright v. Hale, 30 LJ. Ex. 40; 6H. & N. 27; and of Lord Wensleydale in Atty.- Genl. v. Sillem, 10 HL. 704, 33 LJ. Ex. 227 ; and yer James LJ. in Warner v, Murdoch, 4 ChD. 752. (d) See ex. gr. Cornish ». Hocking, 1 E. & B. 602, 22 LJ. Digitized by Microsoft® RETROSPECTIVE OPERATION AS REGARDS PROCEDURE, 271 The general principle, indeed, seems to be that alterations in the procedure are always retrospective, unless there be some good reason against it (a). 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 plaintiff was entitled to judgment (b). When the Legislature gave a new remedy by the Ad- miralty Acts of 1840 and 1861, for enforcing rights in the Admiralty, those Acts were held to extend to rights which had accrued before the new remedy had been provided (c). 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 recovered more than a year and a day before the Act was passed, and which therefore could not have been put in force under the previous state of the law without revival (d). The enactment 6 & 7 Vict. c. 73, s. 87, which made at- 142; Dash v. Van Kleek, 7 & W. 848, Johns. 503; The People v. Tib- (c) The Alexander Larsen, 1 betts, 4 Cowen, 392. W. Rob. 288. See The Iron- (a) See per Lord Blackburn sides, Lush. 458; 31 LJ. PM. in Gardner v. Lucas, 3 App.603, & A. 129. and Kimbray v. Draper, LR. 3 (d) Boodle v Davis, 8 Ex, QB. 163. 351, 22 LJ. Ex. 69. (6) Warne v. Beresford, 2 M. Digitized by Microsoft® 272 INTERPRETATION OF STATUTES. torneys’ 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 (a). On this principle, it was held that the 3 & 4 Will. 4, c. 42, 8. 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 (b); and though Littledale, J. (c), and afterwards Parke, B. (d), disapproved of the decision, it appears to have been generally concurred in by the Courts (e). So, the Common Law Procedure Act of 1860, which deprives a plaintiff, in an action for a wrong, of costs, if he recovers by verdict less than five pounds, unless the judge certifies in his favour, was held to apply to actions begun before the Act had come into operation, but tried after(f); and a similar effect was given to the County Courts Act of 1867, as (a) Binns ». Hey, 1 Dowl. & (c) 1A. & E. 341. L. 66; Brooks v. Bockett, 9 (d) In Pinhorn v. Sonster, 8 QB. 847 ; Scadding v. Eyles, Id. Ex. 138, 21 LJ. 337. 858. (e) Per Channell B. in Wright (6) Freeman v. Moyes, 1 A.& Hale, 30 LJ. Ex. 43; per E. 338; Pickup v. Wharton, 2 Wood V.C. in Re Lord, 1K. & C. & M. 405; Grant». Kemp, Id. J. 90, 24 LJ. Ch. 145. 636 ; Exp. Dawson, LR. 19 Eq. (f) Wright v Hale, 6 H. & 433. N. 227, 30 LJ. Ex. 40. Digitized by Microsoft® RETROSPECTIVE OPERATION. 278 regards giving security for costs(a). The provision which extended the time for making decrees nisi abso- lute from three to six months, applied to suits pending when the Act came into operation (0). But the new procedure would be presumedly inap- plicable, where its application would prejudice rights established under the old (c); or would involve a breach of faith between the parties. For this reason, those provisions of the Common Law Procedure Act of 1854, s. 82, 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 opera- tion (d). Where a special demurrer stood for argument befor 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 (e). The judg- ment was, in strictness, due before the Act, and the delay of the Court ought not to affect it. (a) Kimbray v. Draper, LR. 3 QB. 160. See another in- stance in Watton v. Watton, LR. 1 P. & D. 227. (6) Watton v, Watton, 1 P. & M. 227. (c) Exp. Phoenix Bessemer Co., 45 LJ. Ch. 11. (d) Hughes v Lumley, 24 LJ. QB. 29; 4 E. & B. 274. Vansittart v. Taylor, 4 E. & B. 910, 24 LJ. QB. 198. (e) Pinhorn v. Sonster, 21 LJ. Ex. 336, 8 Ex. 138. See also R. v. Crowan, 14 QB. 221; Hobson v. Neale, 8 Ex. 131, 22 LJ. 25, 179. Digitized by Microsoft® CHAPTER IX. SECTION I,—MODIFICATION OF THE LANGUAGE TO MEET THE INTENTION. Wuere 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, presumably not intended, a construction may be put upon it, which modifies the meaning of the words, and even the structure of the sentence (a). This is done, sometimes by giving an unusual meaning to particular words; sometimes by altering their 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 possibly have intended what its words signify, and that the modifications thus made are mere corrections of careless language, and really give the true intention. (a) See per Alderson B. in Williams, 1 M. & W. 99; and Atty.-Genl. ». Lockwood, 9 M. Hollingworth v. Palmer, 4 Ex. & W. 398, and Miller v Salo- 267: per James LJ. in Exp. mons, 7 Ex. 475, 21 LJ. 188; Rashleigh, 2 App. 13 ; Grot. de per Parke B. in Becke v. Smith, B, & P. b. 2, c. 16,8. 12 (4). 2M. & W. 195; Wright 2, Digitized by Microsoft® MODIFICATION OF THE LANGUAGE. 275 In a case already mentioned (a), where a colonial ordinance, passed to give effect to the treaty between this country and China, authorised the extradition to the Chinese government of any of its subjects charged with having committed “ any crime or offence against “the laws of China,” the Privy Council construed these words as limited to those crimes and offences which are punishable by the laws of all civilized nations ; and as not including acts, which though “against the laws of China,” would be innocent in Europe (b). As the literal meaning of the words was wide enough to include political offences against the law of a foreign State, an English Court might feel bound to think it impossible that they could have been used in that sense. But it might be doubted whether the other party to the treaty understood our stipulation in the same narrow sense ; or, indeed, whether it did not understand it as including, above all others, those crimes which all governments are most desirous tu punish, viz., those against them- selves (c). When it was settled that the Statute of Limitations, 21 Jac. 1, c. 16, applied to India (d), it was necessary to construe, for that purpose, the expression “ beyond the seas,” as meaning out of the (a) P. 31. ce. 8, and in the 37 & 38 Vict. (b) Atty.-Genl. v. Kwok Ah ¢, 38, Sing, LR. 5 PC. 197. (d) E. I. Co. v Paul, 7 Moo. (c) The same wide expres- 85. sions are used in the 34 Vict. Digitized by Microsoft® 276 INTERPRETATION OF STATUTES. 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 returned, but died abroad (0). An Act which made it penal “to be in possession “of game after 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 applying only where the possession did not begin until after the close of the season ; that is, the words “to begin” were interpolated before “ to be in posses- “sion” (c). Where one section enacted that if the plaintiff recovered a sum “ not exceeding ” five pounds he should have no costs, and another, that if he reco- vered “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 reco- vered was exactly five 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 exceeding” (d). The Insolvent Act, which invalidated voluntary convey- (a) Ruckmaboye » Lulloo- (c) 2 Geo. 3, c. 19, 39 Geo. 3, boy, 8 Moo. 4. ce. 34; Simpson », Unwin, 3 B. (6) Townsend v. Deacon, 3 & Ad. 134, Ex. 707; and see Forbes v. (d) Garby v. Harris, 7 Ex, Smith, 1] Ex. 161. 591, 21 LJ. 160. Digitized by Microsoft® MODIFICATION OF THE LANGUAGE. 277 ances made by insolvents “ within three months before “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 in- tended (a). The Bankruptcy Act of 1869, providing that all the property acquired by the bankrupt “ during the con- “tinuance” of the bankruptcy should be divisible among his creditors, and providing also that he 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 con- tinuance of the bankruptcy or the earlier discharge of the bankrupt. ‘This construction was deemed neces- sary to avoid leaving the bankrupt incapable of ac- quiring property after he had given up everything to his creditors, simply because the property had not been realised, and consequently the bankruptcy not closed (0). (a) Becke v. Smith, 2 M. & ss. 15 & 48; Ebbs v. Boulnois, W. 198. LR. 10 Ch. 479. (6) 32 & 33 Vict. c« 71, Digitized by Microsoft® 278 INTERPRETATION OF STATUTES. It is obvious that the provisions in numerous sta- tutes 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 unequi- vocal sense, convey ; since an act done in accordance with law is not actionable, and therefore needs no special statutory protection (a). Such provisions are obviously intended to protect, under certain circum- stances, acts which are not legal or justifiable (0) ; and the meaning given to them by a great number of decisions seems, in the result, to be that they give protection in all cases where the defendant did, or neglected (c) what is complained of, under colour of the statute ; that is, being within the general purview of it, and with the honest intention of acting as it autho- rised, 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 (d). Thus, if an Act authorised the arrest of (a) Per Cur. in Hughes v. 4 TR. 553; Parton v. Williams, Buckland, 15 M. & W. 346. 3 B. & A. 330; Roberts ». (0) See ex. gr. Warne v. Orchard, 2 H. & C. 769, 33 LJ. Varley, 6 TR. 443. 65; Hughes v. Buckland 15 M. (c) Wilson v. Halifax, LR. & W. 346; Booth » Clive, 10 3 Ex. 114, Newton v. Ellis, 5 CB. 827, 2 L. M. & P. 283; E. & B. 115, 24 LJ. 337. Carpue v. London and Brighton (d) See, among many other R.Co., 5 QB. 747; Tarrant ». authorities, Greenway ». Hurd, Baker, 14 CB. 199; Burling ». Digitized by Microsoft® MODIFICATION OF THE LANGUAGE. 279 a person who entered the dwelling-house of another at night with intent to commit a felony (24 & 25 Vict. c. 96,8. 51), an arrest made in the honest and not unreasonable, but mistaken belief that the person arrested had entered with that intent, would be pro- tected. But he would not be protected if he had acted under a misconception, not of the facts, but of the law; as if, for instance, his belief was that the person had only attempted to enter; a different, offence, for which the enactment in question does not authorise arrest; or if, where the law justified an immediate apprehension, an arrest was made which was not immediate (a). The reasonableness of the belief is immaterial, if the belief be honest ; though it is an important element in determining the question of honesty. An 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 Harley, 3 H. & N. 271; Hop- kins v. Crowe, 4 A. & E. 774; Kine v. Evershed, 10 QB. 143 ; Hermann v. Seneschal, 13 CB. NS. 392, 32 LJ. 43 ; Downing v. Capel, LR. 2 CP. 461; Leete v. Hart, Id. 3 CP. 322; Cham- berlain v, King, Id. 6 CP. 474 ; Selmes v. Judge, Id. 6 QB. 724; Mason v. Aird, 51 LJ. QB. 244; Dennis v. Thwaites, 2 ExD. 21; Downing v. Capel, LR. 2 CP. 461. (a) Griffith v. Taylor, 2 CPD. 194 ; Morgan v, Palmer, 2 B. & C. 729. Digitized by Microsoft® 280 INTERPRETATION OF STATUTES. question relating to those matters, to a certificate of indemnity declaring 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 supposed that any answer, however false or contemptuous, was equally intended (a). It is observable that this inter- polation was made in the Act, notwithstanding that it repealed an earlier enactment which had protected the witness only when he made “ true” discovery. The 374th section of the Merchant Shipping Act, 1854, which enacts that no license granted by the Trinity House to pilots “shall continue in force beyond “the 31st of January,” after its date, but that “the “same may be renewed on such 31st of January in “every year, or any subsequent day,” was construed as meaning, not that, the renewed licenses must be issued on or after that day, but that they should take effect from the 31st of January. This departure from the strict letter was justified by the great inconve- nience which would have resulted from a rigid ad- herence to it, since it would have left the whole ‘district for a certain period, probably days, possibly weeks, without qualified pilots (0). In the 7th section of the Railway and Canal Traffic Act of 1854, which enacts that railway and canal com- panies shall be liable for the loss or any injury done to (a) R. v. Hulme, LR. 5 QB. (b) The Beta, 3 Moo. NS. 377. 23. Digitized by Microsoft® MODIFICATION OF THE LANGUAGE. 281 “any horses, cattle, or other animals” (which would include a dog) entrusted to them for carriage, with the proviso that no greater damages should be recovered for the loss of, or injury done to “any of such animals ” beyond the sums thereinafter mentioned,—specifying certain sums for horses, neat cattle, sheep and pigs, but making no mention of dogs,—the proviso was read, in order to reconcile it with the enacting part, as dealing only with “any of the following of such “animals” (a). Where a railway company was made liable to make good the deficiency in the parochial rates arising from their having taken rateable property, “ until its works were completed and liable to assess- “ ment,” the House of Lords held that the intention was that the liability should cease as regards any one parish, as soon as that portion of the line which ran through it was completed ; in other words, that the Act was to be read as fixing the liability when “ its “ works in the parish were completed ” (0). A case in the Queen’s Bench may be cited as furnishing a remarkable example of judicial modifica- tion for the purpose of supplying an apparent case of omission, and avoiding an injustice and absurdity, (a) Harrison v. London and lation in Perry v. Skinner, 2 M. Brighton R. Co., 2B. & 8. 122, & W. 471, sup. p. 262. 29 LJ. 209; reversed on another = (6) East London R. Co. », point, Id., and 31 LJ. 113; R. Whitechurch, LR. 7 HL. 89, v. Strachan, LR. 7 QB. 463. sup. p. 21. See another instance of interpo- Digitized by Microsoft® 282 INTERPRETATION OF STATUTES. such as the Legislature was presumed not to have intended.. Under the 11 & 12 Vict. c. 110, an insol- vent prisoner for debt might be discharged from im- prisonment, either upon his own petition, or upon the petition of any of his creditors. The 10 & 11 Vict. c. 102, in abolishing the circuits of the Insolvent Commissioners, and transferring their jurisdiction to the County Courts, provided that “if an insolvent “ petitions,” the Insolvent Court should refer his peti- tion to the Court of the district where he was impri- soned ; but it omitted all mention of cases where the petitioner was a creditor. The Court, however, con- sidered that an intention to include the latter suffi- ciently appeared. To confine the section to its literal meaning would involve the unjust result that, though a vesting order might be made, and the debtor be de- prived of his property, he would remain imprisoned. The words “if an insolvent petitions” were accord- ingly understood to have merely put that case as an example of the more general intention, viz. “if a “ petition be presented.” For the purposes of the Legislature, it was immaterial whether the petition was the insolvent’s or the creditor’s (a). 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 (a) R. v. Dowling, 8 E. & B. 605; Exp. Greenwood, 27 LJ. 28. S.C. Digitized by Microsoft® MODIFICATION OF THE LANGUAGE. 283 would defeat the real object of the enactment, it may, or rather it should, be eliminated (a). The Carrier's Act, 1 Will. 4, ¢. 68, which enacts that a carrier shall not be responsible for the loss of articles delivered for carriage, unless the sender de- clares 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 delivered to his servant elsewhere than at the office, and no declara- tion 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 (0). An Act (25 & 26 Vict. c. 114) which authorised constables 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 authorise-a constable to summon a man whom he saw on a footway, 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 (a) Per Lord Abinger in that case the elimination was Lyde v. Barnard, 1 M. & W. not necessary, 2 CPD. 99. 115 ; per Brett LJ. in Stone ». (>) Baxendale v. Hart, 6 Ex. Yeovil, 1 CPD. 701; though in 769, 21 LJ. 123; per Cam. Scac. Digitized by Microsoft® 284 INTERPRETATION OF STATUTES. that “the enormous absurdity ” of requiring an actual bodily search under such circumstances was intended ; and such a departure from the language of the Act was therefore considered as really meeting the true intention (a). So, the 35 Geo. 3, c. 101, which em- powered justices to suspend, in case of sickness, the order of removal of any pauper who should be “brought before them for the purpose of being re- “moved,” was construed as authorising such suspen- sion without the actual bringing up of the pauper before the justices ; as the literal construction would have defeated the humane object of the enactment (0). To carry out the intention of the Legislature, it is occasionally found necessary to read the conjunctions “or” and “and,” one for the other. The Statute of Charitable Uses, for instance, 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 (c). The 1 Jac. 1, c. 15, which made it an act of bank- ruptcy 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 (a) Hall v. Knox, 4 B. & S. 587, the statute was construed 515, 33 LJ. MC. 1. See also strictly and literally. sup. p. 249. But in Clarke ». (6) R. v Everdon, 9 East, Crowder, LR. 4 CP. 638, and 101. Turner v. Morgan, LR. 10 CP. (c) Duke, Charit. Uses, 134. . Digitized by Microsoft® MODIFICATION OF THE LANGUAGE. 285 to bankruptcy every trader who left his home even for an hour, if a creditor called during his absence for payment. This absurd consequence was avoided, and the real intention 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 the design of delaying or defeating creditors (a). 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” should be read as “ or,’ and that a carriage repassing with different horses was not 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 (b). 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, o7 unless 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 (a) Fowler v. Padget, 7 TR. Dowl. & R. 257, wrongly re- 509. See also R. v. Mortlake, ported in the marginal note in 6 East, 37. 4B. & C. 200, (b) Waterhouse v, Keen, 6 Digitized by Microsoft® 286 INTERPRETATION OF STATUTES. 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 (a). 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, ¢. 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 con- struing it ‘‘ by equity,” and converting the disjunctive “or” into “and” (b). The Court of Queen’s Bench, on one occasion, held that the power given to justices by the Highway Act, 5 & 6 Will. 4, c. 50, to order the diversion of a highway, when it appeared “ nearer or “more commodious to the public,” was limited to cases where the new road was both nearer and more com- modious (c) ; but the same Court lately held that the power was exercisable when the new road was either the one or the other (d). Statutes which authorise persons to do acts for the benefit of others, or, as it is sometimes said, for the public good or the advancement of justice, have often given rise to controversy when conferring the authority (a) Metrop. Board v. Steed, 648; Wright v. Frant, 4 B. & 8 QBD. 445, 51 LJ. 22. S. 119, 32 LJ. MC. 204. See (6) Co, Litt. 272a. Harrington v. Ramsay, 8 Ex. (c) R. v. Shiles, 1 QB. 910. 326, 22 LJ. 460; Oldfield a (d) R. v. Phillips, LR. 1 QB. Dodd, 8 Ex. 578, Digitized by Microsoft® MODIFICATION OF THE LANGUAGE. 287 in terms 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 com- pulsory force (a), and so would seem to be modified by judicial exposition. On the other hand, in some cases, the authorised person is invested with a discre- tion, 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 church- wardens and overseers “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 disburse- ments had been made and not been paid. ‘“ May be “done,” it was observed, is always understood in such cases as “must be done” (db). So, where a statute directed that churchwardens should deliver their ac- counts to justices, and enacted that the latter “shall “and they are hereby authorised and empowered, if they “shall so think fit,” to examine the. accounts, and dis- (a) Per cur. in R. vw Tithe 2 Salk. 209; R. v. Derby, Skin. Commrs., 14 QB. 474. 370. S.C. (b) R. v. Barlow, Carth. 293, Digitized by Microsoft® 2868 INTERPRETATION OF STATUTES. allow unfounded charges, it was held that the justices could not decline to enter upon the examination (a), or be at liberty. to allow charges not sanctioned by law (b).. Though the 11 & 12 Vict. c. 42, s. 9, enacts that justices “ may” issue a summons on an information laid before them only, “if they shall think fit,” it was held that they were not.at liberty to refuse it on any extraneous considerations, such as that the prosecution was inexpedient (c). A charter which granted to the steward and suitors of a manor “ power and authority ” to hold a Court to hear civil suits, was held to make it obligatory to hold it when necessary (d ). Again, the Tithe Commutation Act (5 & 6 Vict. c. 54, s. 7) which enacts that if any agreement for the commutation of tithes made before the Act, which was not of legal validity, should appear to the Tithe Commissioners to give a fair equivalent for the tithe, they “shall be “empowered ” to confirm it, or, if unfair, to confirm it nevertheless, and to award such a rent-charge as would make it a proper equivalent, and to extinguish the tithe; it was considered that the Commissioners were ‘bound to make any such agreement between the parties the basis of their own settlement, and were not (a) R. v. Cambridge, 8 Dowl. 305. See R. v. Lancashire JJ., 89; comp. R. v. Norfolk, 4 B. & Ad. 238. (b) Barton v. Pigott, LR., 10 QB. 86; 44 LJ. MC. 5. (c) R. v. Adamson, 1 QBD. 901; R. v ‘Fawcett, 11 Cox, QBD., March 15, 1883. (d) R. vw Havering-atte- Bower, 5 B. & A. 691; R. w Hastings, Id. '692n., both better reported in 2D. & R. 176, and 1D. & R. 148, Digitized by Microsoft® MODIFICATION OF THE LANGUAGE. 289 at liberty to throw it wholly aside in carrying out the general policy of the Act, viz., tithe extinction (a). So, in Backwell’s Case, Lord Keeper North held, and of the same opinion were all the judges, that the statute which enacted only that the Chancellor ‘“ should have full power” to issue a commission of bankruptcy against a bankrupt trader, on the petition of his creditors, imperatively required its issue ; declaring that “may” was in effect “must” (b). Under the County Court Act, which enacted that the Superior Court “may ” give the plaintiff the costs of his action, if he lived more than twenty miles from the defendant, it was held that the Court was bound to give them in every case in which the plaintiff and defendant dwelt more than that distance apart (c). The general Order which makes it “lawful” for the Court to order the production of such documents in the possession of a party relating to the action, “as the Court thinks “right,” gave the Court no discretion to refuse an inspection in any case where the documents were not privileged by law from inspection (d). An Act which made it “lawful” for a Court to stay proceedings (a) R. v. Tithe Comm. 14 acc. Crake v. Powell, 2 E. & B. QB. 474. 210, overruling Jones v. Harri- (b) 13 Eliz.c.7; 1Jac.c.15; son, 6 Ex. 328. Backwell’s Case, 1 Vern. 152, (d) Judic. A. 1875, Ord. 31, 2 Ch. Ca. 190; Eq. Ca. Ab. 52. rv. 11; Bustros v. White, 1 QBD. (ce) McDougal v. Paterson, 423. 11 CB. 755,2 L. M. & P. 681; Digitized by Microsoft® 290 INTERPRETATION OF STATUTES. in actions against companies under liquidation until proof of the plaintiff's debt (a) ; and one of the bank- ruptey rules which provides that where the Court has given no directions as to the disallowance of the costs of improper or unnecessary proceedings, the taxing- master “may” look into the question, were held equally imperative (b). An Act which empowered a vestry to make a paving rate, and provided that when it appeared to the vestry that the rate was not incurred for the equal benefit of the whole parish, it “might” exempt the party not benefited, was held to impose a duty and not merely to confer a power on the vestry, to apportion the burden when the case arose (c). On the other hand, where it was enacted that “it “should be lawful” for the Superior Courts to issue commissions to examine witnesses and parties abroad, it was held that the Court was not bound to issue such a commission simply on proof that the persons whose evidence was required were ‘abroad, but that it was in the discretion of the Court to determine upon the special circumstances of each case, whether it was advisable in the interests of justice to issue itor not(d). So, under “a statute which enacted that where a county bridge is (a) Marson -v. Lund, 13 QB. Co, 8E. & B 212, 27 LJ. MC. 664, 177. (0) Baines v Wormsley, 47 (d)1&2Wm. 4, ¢. 22; Cas- LJ; Ch. 144; Add. rules, 1875, telli v. Groom, 18 QB. 490 r. 18. 21 LJ. 308. (c) Howell London Dock Digitized by Microsoft® MODIFICATION OF THE LANGUAGE. 291 narrow, “it shall and may be lawful” for the Quarter Sessions to order it to be widened, it was held, having regard to the nature of the Court entrusted with the power, and to the subject-matter, which might involve other considerations besides the width of the bridge, such as the cost of the proposed work and its possible disproportion to any public benefit likely to be derived from it, that it was discretionary to make the order or not (a). Again, the enactment that if part of the consideration for an annuity were returned, or paid in goods, or retained on any pretence, “it should be lawful” for the Court to cancel the annuity deed, if it should appear that ‘‘any such “ practices ” had been used ; the Court considered that this last expression limited the enactment to cases where any of the forbidden acts had been done malo animo, and held that it was in their discretion to set the deed aside or not(b). The Church Discipline Act, which enacts that in every case of a clergyman charged with an ecclesiastical offence, or concerning whom a scandal may exist of having committed such an offence, “it shall be lawful” for the bishop, on the application of any person complaining of it, or if he thinks fit, on his own motion, to appoint a commission to examine witnesses, to ascertain if there be sufficient (a) 43 Geo. 3, c. 59; Re Barber v. Gamson, 4 B, & A. Newport Bridge, 2 E.& E.377, 281; Girdlestone v. Allan; 1 B. 29 LJ. MC. 52. & C. 61. (b) 5 Geo. 4, & 14, 8. 6; Digitized by Microsoft® 292 INTERPRETATION OF STATUTES. prima facie ground for instituting further proceedings, was held to leave it discretionary with the bishop to appoint a commission, on receiving such a complaint. Having regard to the pre-existing state of the law and the character of the bishop’s office, it was considered that it was his duty, before issuing the commission, to determine on the expediency of instituting the prose- cution, taking into his consideration the nature, credibility, or importance of the charge, and the status, solvency, and religious character of the complainant, as well as the general interests of the Church (a). This subject underwent much discussion in the last- mentioned case, and elicited various views. The Queen’s Bench held that it was imperative to issue the commission where a complaint had been made of an ecclesiastical offence (b). According to Lord Cairns, such words as “it shall “be lawful,” are always simply permissive (c) or en- abling. They confer a power, and do not, of them- selves, do more. But there may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the persons for whose benefit. the power is to be exercised, which may couple the power with a (a) 3 & 4 Vict. c. 86; Rv. (Bp.) 5 App. 214. Chichester (Bp.), 2 E. & E. 209, (6) 4 QBD. 245. 29 LJ. 23; R. v. Oxford (Bp.), (c) 5 App. p. 223. 4 QBD. 525; Julius 2. Oxford Digitized by Microsoft® MODIFICATION OF THE LANGUAGE. 293 duty, and make it the duty of the person in whom the power is reposed to exercise it when called upon to do so; it lies on those who contend that an obligation exists to exercise the power, to show in the circum- stances of the case something which, according to the above principles, created that obligation; and the cases decide only that where a power is de- posited with a public officer for the purpose of being used for the benefit of persons who are specifically pointed out, and with regard to whom a definition is supplied by the legislature of the conditions upon which they are entitled to call for its exercise, that power ought to be exercised, and the Court will require it to be exercised (a). Lord Blackburn’s opinion was that the enabling words gave a power which prima facie might be exercised or not ; but that they were compulsory whenever the object of the power was to effectuate, not any object for the public good or of general interest or concern, but only a private legal right (0). Lord Justice Bramwell considered that a statute giving a power obviously meant that the power should be exercised; that where the conditions of those cases are always the same,—as where, for instance, the power to give costs depends on the single fact whether the plaintiff lived within or beyond twenty miles from the defendant,—the statute must mean that the power should be exercised in all those cases, and so (a) 5 App. p. 222. (b) Id. 244, Digitized by Microsoft® 294 INTERPRETATION OF STATUTES. is compulsory ; but that when the circumstances vary, the words empowering but not commanding are not obligatory (a). This last view, pointing evidently to the distinc- tion between ministerial and judicial acts, suggests an explanation of the question which may be here offered. When a statute enacts that a candidate at an elec- tion “may” be present at a polling place, or that a clergyman accused of an ecclesiastical offence “may ” attend the proceedings of the commission appointed to inquire into the accusation, or that a company “ may” construct a railway (b), or that a plaintiff “may” sue in one action for injury done to his wife as well as to himself (c), it confers a privilege or license which the donee may exercise or not at pleasure, having only his own convenience or interests to consult; and the word “may” is then plainly permissive only. But it would be difficult to believe that Parliament ever in- tended to commit powers to public persons for public purposes for exercise or non-exercise in any such spirit. An enactment that a court or person “may” swear witnesses (d); or that a justice “may” issue a (a) 4 QBD. 553. 283. (6) York ». N. Midland R. (c) Brookbank v. Whitehaven Co., 1 E. & B, 858, 22 LJ. 225; RB. Co, 7H. & N. 834, 31 LJ. Great Western R. Co. % RB. 1 349. E, & B. 874. See also Nicholl (d) Per Cockburn CJ., in R. 2, y, Allen, 1 B, & 8, 934, 31 LJ, Oxford (Bp.), 4 QBD. 245. Digitized by Microsoft® MODIFICATION OF THE LANGUAGE. 295 summons on complaint of an offence, or the Chancellor a commission in a case of bankruptcy, is no mere per- mission to do such acts, with a corresponding liberty to abstain from doing them. Whenever the act is to be done for the benefit of others, the word “may,” or any of its equivalents, simply confers a power or capacity to do the act. It is facultative not per- missive ; and neither by its own connotation, nor by force of any legal principle does it necessarily imply an option to abstain from doing the act. On the con- trary, it is a legal, or rather a constitutional principle, that powers given to public functionaries or others for public purposes or the public benefit, are always to be exercised when the occasion arises. Whether this is to be done by the authorized persons on their own initiative, indeed, or only on the application of those who have a right to the exercise of the power, is a subordinate question which may depend on the language or object of the statute, or on the con- stitution, whether executive or judicial, of the autho- rized body or persons, or of their course of practice. But as regards the imperative character of the duty, it was laid down by the King’s Bench (a) that words of permission in an Act of Parliament, when. tending to promote the general benefit, are always held to be compulsory ; and as regards Courts and judicial functionaries, who act only when applied to, the same (a) R. v. Hastings (Mayor), 1 D. & R. 48, Digitized by Microsoft® 296 INTERPRETATION OF STATUTES. rule was in substance re-stated by the Common Pleas, in laying down that whenever a statute confers an authority to do a judicial act (the word “judicial” being used evidently in its widest sense), in a certain case, it is imperative on those so authorized to exer- cise the authority when the case arises, and its exercise is duly applied for by a party interested and having a right to make the application ; and that the exercise _ depends, not on the discretion of the Courts or judges, but upon proof of the particular case out of which the power arises (a). The Supreme Court of the United States similarly laid it down that what public officers are empowered to do for a third person, the law requires shall be done whenever the public interest or individual rights call for the exercise of the power; since the latter is given not for their benefit, but for his, and is placed with the depositary to meet 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, but to impose a positive and absolute duty (0). (a) McDougal »v. Paterson, Bell v. Crane, LR. 8 QB. 481 ; 11 CB. 755, 2 L. M. & P. 687. R. v South Weald, 5 B. & S. In some cases, this rule seems 391, 33 LJ. 193; De Beauvoir to have been overlooked, and ~v. Welch, 7 B. & C. 266. See the word “may” construed also R. v. Norfolk, 4 B. & Ad. as simply permissive. Seeex. 238. gr. R.v. Eye, 4 B. & A. 271, (b) Supervisors v U. 8S, 4 Jones v. Harrison, 6 Ex. 328; Wallace, 446. Digitized by Microsoft® MODIFICATION OF THE LANGUAGE. 297 There is, therefore, abundant authority for the pro- position that such powers as are here under considera- tion are invariably imperative ; and that it is the duty of those to whom they are entrusted to exercise them whenever the occasion contemplated by the Legislature arises. And having regard to this implied duty, the enabling or facultative terms in which the power may be couched, such as “it shall be lawful,” are to be re- garded merely as the usual mode of giving a direc- tion (a) ; as importing that it is not to be lawful to do otherwise than as directed (6). 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 (c), or to issue a commission to administer a bankrupt estate (d), or that a plaintiff might have his costs when he lived a certain distance from the defendant (e), it left no other ques- (a) Per Mellish, L.J. Id. 265. (c) R. v. Barlow, sup. p. 287. and per Jessel MR. in Ex parte (d) Backwell’s Case, sup. p. Jarman, 4 Ch. D. 838. 289. (6) Per James L.J. in Re (e) McDougal » Paterson, Neath and Brecon R. Co., LR. sup. p. 289. 9 Ch. 264. Digitized by Microsoft® 298 INTERPRETATION OF STATUTES. tion 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 defendant’s abodes were at the prescribed distances. Nor is the power made less imperative in any such cases by express references to the discretion of the authorized person. The duty of issuing a summons (a), or of examining the churchwarden’s accounts (b), 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 indi- vidual shareholder of it, if he failed after due dili- gence 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 case in which the Court was satisfied that the specific facts indicated by the statute existed—viz., that the debt was unpaid, that due endeavours had been made, and had failed, to put in force the execution against the company (c), and, it may be added, that the creditor had done nothing to disentitle him to (a) R. v. Adamson, sup. p. CBNS. 67 ; Hill » London & 288. Co. Insur. Co., 1 H. & N. 398; (b) R. v Cambridge, sup. comp. Shrimpton » Sidmouth, p. 288. &e., R. Co. LR. 3 CP. 80, (c) 7 & & Vict. c. 110; decided on the 8 Vict. c. 16... Morisse v. British Bank, 1 Digitized by Microsoft® MODIFICATION OF THE LANGUAGE, 299 execution against 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 “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 cer- tain 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 sum- moned 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” (0). In all such cases they must exercise the power; they must ‘think fit” to do so whenever the occasion 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 . (a) Scott v. Uxbridge, R. Co., and R. v, Adamson, sup. p. 288. &c., LR. 1 CP. 596. (c) Supervisors v. U. S., 4 (0) R. v Finnis, 28 LJ. MC. Wallace, 446. 201; R. v. Boteler, 33 LJ. MC. (d) Galena » Amy, 5 Wal- 101. See also R. » Cambridge, lace, 705. Digitized by Microsoft® 300 INTERPRETATION OF STATUTES. that there were no other means in possession or pros- pect 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 (a), “be “resolved in the negative ” (0). 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 exer- cising the power or not at pleasure when the occasion did arise, but only of determining whether the occa- sion 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 con- ferred, 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” (c). (a) Adverting to R. » Bar- magistrates “shall be at liberty, low, sup. p. 287. in their free and unqualified dis- (6) In R. » Lancashire JJ., cretion,” to grant or refuse beer QDB. March 15, 1883, a similar _ licenses. view seems to have been taken (c) R. v Cumberland, 4 A. & of the 45 & 46 Vict. c. 34,8.1, E. 695. which enacts that licensing Digitized by Microsoft® MODIFICATION OF THE LANGUAGE. 301 Whether the language was facultative only or manda- tory, 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 enactment 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 exer- cise of their discretion (a), 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 (b). In the case of the annuity (c), 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 con- (a) See sup. 147. 305. (6) R. v, Adamson, 1 QBD. (c) Barber v, Gamson, sup. 201; R. v Fawcett, 11 Cox, p. 291. Digitized by Microsoft® 302 INTERPRETATION OF STATUTES. sideration had been paid or not; but as the statute was construed to require the further fact that the re- tention 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 entrusted to, and, indeed, could be determined only by the judicial discretion of the Court. It could hardly be 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 (6) ; nor, if his own judicial discretion, unin- fluenced 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). (a) Castelli » Groom, sup. (c) See the concluding re- p. 290. marks of Lord JusticeBramwell’s () Per Lord Blackburn, 5 judgment in 4 QBD, 555, App. 241. . Digitized by Microsoft® MODIFICATION OF THE LANGUAGE. 803 In one sense, indeed, a power is never obligatory when the discretion of its depositary is left to de- termine 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 prin- ciple, 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. 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 occa- sion 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 con- struction 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 ascer- tained only by the judicial discretion (a). (a) It has been said that this posed that they intended to bind principle does not apply to the themselves by their own bye- construction of a bye-law pur- law; R. v. Eye, 2D. & R. 172; porting to authorize its makers per Abbott C.J. and Bayley J. to do an act for the public 175, benefit. It was not to be sup- Digitized by Microsoft® 304 INTERPRETATION OF STATUTES. An omission which the context shows with reason- able certainty to have been unintended may be sup- plied, at least in enactments which are construed beneficially, as distinguished from strictly. Thus, when the 33rd section of the Fines and Recoveries Act (3 & 4 Will. 4, c. 74), in providing that if the protector of a settlement should be (1) a lunatic, or (2) convicted of felony, or (8) an infant, the Court of Chancery should be the protector in lieu of the lunatic or the infant, omitted the case of the convict of felony, it was held by Lord Lyndhurst that the omission might be supplied, in order to give effect to the manifest inten- tion. Without it, the mention of the case of felony, in the first part of the sentence, was insensible, and it necessarily implied the missing words (a). So, where a statute enacted that suits “against” an association should be brought in the district where it was esta- blished, without making any provision for suits “ by” the association ; but an earlier Act had in a similar clause provided for suits both by and against; the Supreme Court of the United States held that the omission in the later Act was accidental, and might be supplied (b). The 6th section of Lord Tenterden’s (a) Re Wainwright, 1 Phil. wills, Greenwood v. Greenwood, 258. See also in deeds, Spyve .y, Topham, 3 East, 115; Dent y Clayton, 33 LJ. Ch. 503; Wilson v. Wilson, 5 H. L. C. 40, 23 LJ. Ch. 697; and in LR. 2 ChD. 375; Re Redfern, 6 ChD. 133, 47 LJ. Ch. 17. (6) Kennedy ». Gibson, 8 Wallace, 491. Comp. Hancock v. Lablache, 3 CPD. 197. Digitized by Microsoft® MODIFICATION OF THE LANGUAGE. 305 Act furnishes another example of clerical neglect which was treated in the same spirit. It enacts that no action shall be brought in respect of a representation made by one person concerning the conduct or credit of another, to the intent that the latter “may obtain “credit, goods, or money upon,” . .. . unless the re- presentation was in writing. The text is clearly im- perfect. Lord Abinger, while deeming any conjectural transposition of the words inadmissible, held that the word ‘‘upon” must be rejected as nonsensical ; but Baron Parke considered that the Court was at liberty either, by transposition, to read the passage “ may ‘obtain goods or money on credit,” or to interpolate after “upon” the words “such representations ” (a). In statutes governed by the principle of strict construction, such emendations have been refused (0). Clerical errors may be read as amended; as where, for instance, an Act refers to another by title and date, and mistakes the latter (c). It bas been asserted that no modification of the lan- guage of a statute is ever allowable in construction, except to avoid an absurdity which appears to be so, not to the mind of the expositor merely, but to that of the Legislature ; that is, when it takes the form of a repugnancy (d). In this case, the Legislature shows (a) Lyde v. Barnard, 1 M. & (c) 2 Inst. 290; Anon, Skinn. W. 101, 115. 110; R. v. Wilcock, 7 QB. 317 ; (6) See Underhill »v. Long- Re Boothroyd, 15 M. & W. 1. ridge, &e., inf., p..331. (d) Per Willes J. in Motteram x Digitized by Microsoft® 306 - INTERPRETATION OF STATUTES. in one passage that it did not mean what its words signify in another; and a modification is therefore called for, and sanctioned beforehand, as it were, by the author. But the authorities do not appear to sup- port this restricted view. They would seem rather to establish that the judicial interpreter may deal with careless and inaccurate words and phrases in the same spirit as a critic deals with an obscure or corrupt text, when satisfied, on solid grounds (a), from the context or history of the enactment, or from the injustice, inconvenience, or absurdity of the consequences to which it would lead, that the language thus treated does not really express the intention, and that his amendment probably does. SECTION II.—EQUITABLE CONSTRUCTION. The practice of modifying the language, and con- trolling the operation of enactments, however, was formerly carried to still greater lengths. It used to be laid down that a remedial statute should receive an equitable construction ; so that cases out of its letter” should, if within the general object or mischief of the Act, be brought within the remedy which it provided(0). v. E. C. R. Co., 7 CB. NS. 558, (a) Comp. Green v Wood 29 LJ. 64; Abel v. Lee, LR. 6 sup. 23, 24, and cases cited, p. CP. 371; Christopherson v, 20, Lotinga, 15 CB. NS. 809; 33 (b) Co. Litt. 24b; Bac. Ab. LJ. 371; per Brett J.in Boon Statute I. 6; Com. Dig. Parlia- v. Howard, LR. 9 CP. 305. ment, R. 13. Digitized by Microsoft® EQUITABLE CONSTRUCTION. 307 It is to be observed, indeed, that this expression is often used in the older authorities in a different sense. Lord Mansfield said that equity was synonymous with the intention of the Legislature (a); and in this sense an equitable construction is plainly free from objuction. 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 (0b), and which applied the 2 Hen. 5, c. 3 (requiring that a juror should have “lands” worth forty shillings), to the cestui que use, and not to the feoffee, when the legal estate was in the latter (c), would seem to fall within the now recognized ordinary rules of construc- tion. The 4 Ed. 3, ¢ 7, which gave executors 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 (d); but the decision was strictly on the letter of the Act. It turned on the construction of the word “ trespass,” which was held to mean a wrong done generally, and of “trespassers,” which was held to mean wrong- doers (e). The decision that the Statute of Gloucester, (a) R. v. Williams, 1 W. Bl. (e) Per Lord Ellenborough in 95. Knubley v. Wilson, 7 East, 135. (t) Corbet’s Case, 1 Rep. 88. It was held to extend to all (c) Co, Litt. 272b. torts except those relating to the (d) Russell ». Prat, Leon. testator’s freehold, or where the 194. injury was of a purely personal x 2 Digitized by Microsoft® 308 INTERPRETATION OF STATUTES. 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 (a). 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 tenant does not replevy in five days), that an action lies against the landlord who sells before the expiration of five days, though after impounding (b), or after a tender of the rent and expenses within that time (c), or for less than the best price (d); no more seems to have been intended than that a cause of action was given by implication (e) against the landlord who thus abused the power of sale thereby conferred on him. But the expression has been more generally used in other senses. In the construction of old statutes, it nature. See Williams wv. Cary, (6) Wallace v. King, 1 H. BI. 4 Mod. 403, 12 Mod. 71; Ber- 13. See also Pitt ». Shew, 4 B. wick v. Andrews, 2 Lord Raym. & A. 208; Harper ». Taswell, 973 ; Bradshaw v. Lanc.& York. 6 C. & P. 166. R. Co., LR. 10 CP. 189; Leg- (c) Johnson v. Upham, 2 E. gatt v. Gt. Northern R. Co, 1 & E. 250, 28 LJ. 252. See R. QBD. 599. See per Bramwell » Cox, 2 Burr. 785; R. 2. L.J. in Twycross v. Grant, 4 Younger, 5 TR. 449. CPD. 45. (d) Com. Dig. Distress, D. 8. (a) Co. Litt. 53a; 2 Inst. (e) See Chapter XII. s. 2. 302. Digitized by Microsoft® EQUITABLE CONSTRUCTION. 309 has been understood as extending to general cases the application of an enactment which, literally, was limited to a special case. Thus, the Statute of West- minster 1 (3 Ed. 1, ¢. 4), which enacted that a vessel should not be adjudged a wreck, if a man, a dog, or a cat escaped from it, was regarded as exempting a vessel from such adjudication, by an equitable construction, if any other animal escaped, those named being put only for example (a). The 46th chapter of the same statute, which directed the judges of the King’s Bench to hear their causes in due order, was extended, on the same principle, to the judges of the other Courts (6) ; and the Statute of Westminster 2, c. 31, which gave the bill of exceptions to the ruling of the judges of the Common Pleas, was similarly held applicable, not only to the other judges of the Superior Courts, but to those of the County Courts, the Hundred, and the Courts Baron ; their judges being still more likely to err(c). The 5 Hen. 4, c. 10, which forbade justices of the peace to commit to any other than the common jail, was held to be equally imperative on all other judicial functionaries (d). The Statute of 1 Rich. 2, c. 12, which forbade the Warden of the Fleet to suffer his prisoners for judgment debts to go at large, until they had satisfied their debts, was held to include all jailors (ec). The Statute of Gloucester (6 Ed. 1), c. 11, (a) 2 Inst. 167, 5 Rep. 107. Hutchinson, 4 Bing. NC. 83. (6) 2 Inst. 256. (d) 2 Inst. 43. (c) 2 Inst. 426; Strother v. (e) Platt v, Lock, Plowd. 35. Digitized by Microsoft® 310 INTERPRETATION OF STATUTES. in speaking of London, was considered as intending to include all cities and boroughs equally ; the capital having been named alone for excellency (a). The statute, or writ of circumspecte agatis, 13 Ed. 1, which directs the judges not to interfere with the Bishop of Norwich or his clergy in spiritual suits, was construed as protecting all other prelates and ecclesiastics, the Bishop of Norwich being put but for an example (6). This kind of construction, which would not be tolerated now (c), was said to have been given to ancient statutes in consequence of the conciseness with which they were drawn (d) ; though the specific ex- pressions used can hardly be considered more concise than the more abstract terms for which they were, possibly, substituted. It has been explained, also, on the ground that language was used with no great precision in early times, and that Acts were framed in harmony with the lax method of interpretation con- temporaneously prevalent (e). It has also been ac- counted 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 (f). The ancient practice of (a) 2 Inst. 322. 30b; per Lord Brougham in (6) 2 Inst. 487. Gwynne v. Burnell, 6 Bing. NC. (c) Per Pollock C. B, in Miller 561. v. Salomons, 7 Ex. 475, 21 LJ. (e) Per Lord Ellenborough in 197, Wilson v. Knubley, 7 East, 134, (d) 2 Inst. 401; 10 Rep. (7) Sedg. Interp. Stat. 311. Digitized by Microsoft® EQUITABLE CONSTRUCTION. 3ll having the statutes drawn by the judges from the petitions of the Commons and the answers of the King (a) may also contribute to account for the wide latitude of 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 indulgence. But an equitable construction has been applied also to more modern statutes, and in a sense departing still more widely from the language. 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 never- theless held, notwithstanding these negative terms, that where an action was brought within six years, but abated by the death of either party, a reasonable time —that is, a year, computed, not from tle death, but from the grant of administration—was to be granted by an equitable construction of the statute beyond the period given, to bring a fresh action by or against the personal representatives of the deceased (0). The provision of the Statute of Frauds, which pro- hibits the enforcement of agreements for the purchase 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 (a) Co. Litt. 272a; sup. 49. Mornington, 7 E. & B. 283, 27 (6) Hodsden ». Harridge, 2 LJ. 439. See also Piggott v. Wms. Saund, 64a; Curlewis » Rush, 4 A. & E. 912. Digitized by Microsoft® 312 INTERPRETATION OF STATUTES. 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 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 (c). This doctrine, however, which was said by Eyre, C.B., to have raised the very mischief which the statute in- tended to prevent (d), and which would probably have found no more favour at a later period in equity (e), was never recognized by the courts of common law (/). (a) Per Lord Hardwicke in Atty.-Genl. v. Day, 1 Ves. 221. (6) Per Turner L.J. in Lincoln v. Wright, 4 De G. & J. 16, 28 LJ. Ch. 705; Haigh v. Kaye, LR. 7 Ch. 474; Williams ». Evans, LR. 19 Eq. 547, 44 LJ. Ch. 319; Ungley v. Ungley, 5 ChD. 887, 46 LJ. 854. (c) Per Lord Redesdale in Bond v. Hopkins, 1 Sch. & Lef. 433. See also Atty.-Genl. ». Day, 1 Ves. 221; Lester v. Fox- croft, 1 Colles, 108, and Tudor’s Eq. Ca., where the later autho- rities are collected ; 2 Story Eq. Jur. s. 752 et seq.; Webster v. Webster, 27 LJ. Ch. 115; Wil- son v. West Hartlepool Co., 2 De G. J. & G. 475, 34 LJ. Ch. 241; Nunn v. Fabian, LR. 1 Ch. 35. See Alderson v, Mad- dison, 7 QBD. 178, and Hum- phreys v. Green, 10 QBD. 148. (d) O'Reilly v. Thompson, 2 Cox, 273. (e) See ex. gr. Hughes v, Morris, 2 De G. M. & G. 349, 21 LJ. Ch. 761. (7) Boydell x. Drummond, 11 Digitized by Microsoft® EQUITABLE CONSTRUCTION. 313 Similar considerations affected the construction which was put upon the Register Act, 7 Anne, c. 20, which, after reciting that frauds were committed by means of secret conveyances, enacted that deeds and wills affecting lands, either at law or in equity, should be adjudged fraudulent and void against subsequent purchasers, unless a memorial of them were registered. It was nevertheless held that such instruments, though unregistered, were valid against subsequent purchasers who had notice of them (a). It has been doubted whether the efficacy of the Act was not materially im- paired by such a departure from its letter (6). On similar grounds, it would seem, although the various Acts of Parliament which created stocks since the beginning of the reign of George I. provided that no method of assigning or transferring the stock, except that provided by the Act, should be valid or available in law, and directed that the owner of stock might devise it by will, attested by two witnesses, it was established by repeated decisions that, notwithstanding such express terms, stock might be disposed of by an unattested will; it being held that, if not valid as a devise, the will nevertheléss bound the executor as a direction for the disposition of the stock (c). East, 142, 159; Cocking ». (0) Per Sir W. Grant in Wyatt Ward, 1 CB. 858. v. Barwell, 19 Ves. 439 ; and see (a) Le Nevev. Le Neve, Amb. Doe v. Alsop, 5 B. & A. 142. 436; Davis v. Strathmore, 16 (c) Ripley v. Waterworth, 7 Ves. 419; Willis » Brown, 10 Ves. 440; Franklin v. Bank of Sim. 127. England, 1 Russ. 589. Digitized by Microsoft® 314 INTERPRETATION OF STATUTES, This principle of equitable construction has, how- ever, fallen into discredit. It was condemned, indeed, by Lord Bacon, who declared that non est interpre- tatio,.sed divinatio, que recedit a litera (a); Lord Tenterden lamented it (b), and pronounced it danger- ous (c); and it may now be considered as altogether discarded as regards the construction of most modern statutes (d). Statutes are now to be considered as framed with a view to equitable as well as legal doctrines (e). For instance, the fact that an execu- tion creditor had notice, when his debt was contracted, that his debtor had given a bill of sale to another person which was not registered, was held not to pre- vent the execution creditor from availing himself of the non-registration (/). Where, indeed, a modern statute is strictly (g) in pari materia with one which has already received an equitable construction, that construction is extended to it on the general principle that they form together one body of law, and are to be construed together (h). Thus, the 3 & 4 Will. 4, c. 42, s. 3, which limits the time for bringing actions on bonds and other specialties to twenty years, in language identical with that used (a) Adv. of Learning. (ce) Per James L.J. and Mel- (2) R. » Turvey, 2B. & A. lish L.J., 2 ChD. 296, 297. 522. (7) Edwards v, Edwards, 2 (c) Brandling v. Barrington, ChD. 291, 45 LJ. 56. 6B. & ©. 475. (g) Comp. Adam ». Inhabts. (d) See per Jessel M.R. in of Bristol, 2 A. & E. 389. Exp. Walton, 17 ChD. 750. (4) Sup. 35 ct seq. Digitized by Microsoft® STATUTES CONTRARY TO EQUITY OR REASON. 815 in the 21 Jac. c. 16, s. 3, respecting simple contract debts, received the same equitable construction as had been given to the last-named Act; and the adminis- trator of the obligor of a bond which had been put in suit in 1831, in which year the action abated by the death of the obligor, was held to be liable to be sued in 1858, within a year from the grant of letters of administration (a). It may not. be out of place to mention here that the expression “the equity of a statute” is sometimes used as meaning the principle or ground of a rule adopted from analogy to a statute. For instance, the 6 Rich. 2, which provided that a writ should abate, if the declaration showed that the contract sued upon was made in a different county from that mentioned in the writ, is said to have led, by the equity of that statute, or the analogy which it furnished, to the intro- duction, by the judges, in the reign of James I.,.of the practice of changing the venue on motion, where there was no variance between the writ and declaration, as to the place where the cause of action arose (b). It was formerly asserted that a statute contrary to natural equity or reason (such as one which made a man a judge in his own case), or contrary to Magna (a) Sturgis y. Darrell, 4.H. Salk. 670; 1 Saund. 74 (2); & N. 622, 28 LJ. 366. Tidd. Pr. c. 25. (6) Knight » Farnaby, 2 Digitized by Microsoft® 316 INTERPRETATION OF STATUTES. Charta, was void ; for, it was said, jures nature sunt immutabilia ; they are leges legum; and an Act of Parliament can do no wrong (a). But such dicta cannot be supported. They stand as a beacon to be avoided, rather than as an authority to be followed (0). The law on this subject cannot be better laid down than in the following words of a great American authority : “It is a principle in the English law that an Act of Parliament, delivered in clear and intelligible terms, cannot be questioned, or its authority con- trolled, in any court of justice. ‘It is,’ says Sir W. Blackstone, ‘ the exercise of the highest authority that ‘the kingdom acknowledges upon earth. When it is said in the books that a statute contrary to natural equity and reason, or repugnant, or impossible to be performed, is void, the cases are understood to mean that the Courts are to give the statute a reasonable construction. They will not readily presume, out of respect and duty to the lawgiver, that any very unjust or absurd consequence was within the contemplation of the law. But if it should happen to be too palpable in its direction to admit of but one construction, there is no doubt, in the English law, as to the binding efficacy of the statute. The will of the Legislature is (a) Bonham’s Case, 8 Rep. acted as to Magna Charta by 118a; City of London v. Wood, 42 Ed. 3, c. 1, Co. Litt. 81a. 12 Mod. 687; Day »v. Savadge, (b) See per Willes J. in Lee Hob. 87 ; Mercers v. Bowker, 1 . Bude R. Co., LR. 6 CP. 582. Stra. 639; 3 Inst. 111. So en- Digitized by Microsoft® STATUTES CONTRARY TO EQUITY OR REASON. 317 the supreme law of the land, and demands perfect obedience. ‘ But while we admit this conclusion of the English law, we cannot but admire the intrepidity and powerful sense of justice which led Lord Coke, when Chief Justice of the King’s Bench, to declare, as he did in Doctor Bonham’s case, that the Common Law doth control Acts of Parliament, and adjudges them void when against common right and reason. The same sense of justice and freedom of opinion led Lord Chief Justice Hobart, in Day v. Savadge, to insist that an 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 extravagant, 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 dangerous conceits of his own uttered for law, to the prejudice of the crown, parliament, and subjects ” (a). (a) 1 Kent Comm. 447. Digitized by Microsoft® CHAPTER X. SECTION I.—STRICT CONSTRUCTION.—PENAL LAWS. Tue rule which requires that penal and some other statutes shall be construed strictly was more rigorously applied in former times, when the number of capital offences was one hundred and sixty or more(a); when it was still punishable with death to cut down a cherry-tree in an orchard, or to be seen for a month in the company of gipsies (2). But it has lost much of its force and importance in recent times, since it has become more and more generally recognised that the paramount duty of the judicial interpreter is to put upon the language of the Legislature, honestly and faith- fully, 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 principle that it is for the Legislature, not the Court, to define a crime and ordain its punishment(c). It is unquestionably a reasonable expectation that, when (a) 4 Bl. Comm. 18. Accord- (b) 4 Bl. Comm. 4. ing to Sir S. Romilly, it was, (c) U. S&S. v Wiltberger, 5 in his time, two hundred and Wheat. 95. thirty. Digitized by Microsoft® STRICT CONSTRUCTION OF PENAL LAWS. 319 the former intends the infliction of suffering, or an encroachment on natural liberty or rights, or the grant of exceptional exemptions, powers, and privileges, it will not leave its intention to be gathered by mere doubtful inference, or convey it in “cloudy and dark “words” only (a), but will manifest it with rea- sonable clearness. The rule of strict construction does not, indeed, require or sanction that suspicious scrutiny of the words, or those hostile conclusions from their ambiguity or from what is left unexpressed, which characterise the judicial interpretation of affidavits ‘in support of ex parte applications (0), or of magistrates’ convictions, where the ambiguity goes to the juris- diction (c). Nor does it allow the imposition of a restricted meaning on the words, wherever any doubt can be suggested, for the purpose of withdrawing from the operation 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 (d); to misread the statute and mis- understand its purpose (¢). “A Court is not at liberty (a) 4 Inst. 332. (0) See ex. gr. Perks v. Severn, 7 East, 194; Fricke v. Poole, 9 B. & C. 543. (c) See R. vu. Davis, 5 B. & Ad. 551; R. v. Jones, 12 A. & E. 684; er Coleridge J. in R. v. Toke, 8 A. & E. 227; per cur. in Lindsay v. Leigh, 11 QB. 465; R. v. Stainforth, Id. 75; Fletcher v. Calthrop, 6 QB. 880. (d) Bac. Ab. Stat. I. 9; Riv. Hodnett, 1 TR. 101. (e) Per Martin B. in Nichol- son v. Fields, 31 LJ. Ex. 236, Digitized by Microsoft® 320 INTERPRETATION OF STATUTES. to put limitations on general words which are not called for by the sense, or the objects, or the mischiefs of the enactment (a@);, and no construction is admissible which would sanction an evasion of an Act (b). -But the rule of strict construction requires that the language shall be so construed that no cases shall be held to fall within it which do not fall both within the reasonable meaning of its terms and within the spirit and scope of the enactment (c). To determine that a case is within the intention of a statute, its language must authorize the Court to say so; but it is not admissible to carry the principle that a case which is within the mischief of a statute is within its provi- sions, so far as to punish a crime not specified in the statute, because it is of equal atrocity or of a kindred character with those which are enumerated (d). If the Legislature has not used words sufficiently com- 7 H. & N. 710, and Bramwell B. in Foley v. Fletcher, 3 H. & N. 781. (a) U.S. v, Coombs, 12 Peters, 80. (6) Com. Dig. Parl. R. 28; Bac. Ab. Stat. J.; 2 Rol. 127. Per curin U.S. v. Wiltberger, 5 Wheat. 95; U. S. v. Gooding, 12 Wheat. 460; American Fur Co. » U. S., 2 Peters, 367; U.S. v. Coombs, 12 Peters, 80 ; U. S. v. Hartwell, 6 Wallace, 395. (c) Per Best C.J. in Fletcher v. Sondes, 3 Bing. 580 ; Bracey’s Case, 1 Salk. 348 ; R. v. Harvey, 1 Wils. 164; Dawes v. Painter, Freem. K. B. 175; Scott ». Pacquet, LR. 1 PC. 552; Ellis v. M‘Cormick, LR. 4 QB. 271; The Gauntlett, LR. 4 PC. 191; per James L.J. (d) U. S. v Wiltberger 5 Wheat. 96. Digitized by Microsoft® STRICT CONSTRUCTION OF PENAL LAWS. 321 prehensive to include within its prohibition all the cases which fall within the mischief intended to be prevented, it is not competent to a Court to extend them (a). It is immaterial, for this purpose, whether the proceeding prescribed for the enforcement of the penal law be criminal or civil (6). The 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 vite. Formerly, an indictment for the capital felony of assaulting a person at a certain time and place, and feloniously cutting or feloniously robbing him, was fatally bad, because it did not allege that the cutting or the robbing was done “then and there ;” while a similar omission in an indictment for the misdemeanour of a common assault was considered immaterial (c). Lord Hale mentions that a statute of Edward 6, which made the stealing of horses, in the plural, a capital offence, gave rise to a doubt, which it was thought necessary to remove by enactment in the following (a) Per Lord Tenterden in The Bolina, 1 Gallison, 83, per Proctor v. Manwaring, 3 B.&A. Story J. 145. (c) 2 Hale, 178; R. v. Bank. (6) Henderson v. Sherborne, Cro. Jac. 41; R. v. Francis, 2 2M. & W. 236; Nicholson v. Stra. 1015. See R. v. Thomas, Fields, 7H. &N.810; Fletcher LR. 20.0. 141. v. Hudson, 51 LJ. QB. 48; Digitized by Microsoft® 322 INTERPRETATION OF STATUTES. session of Parliament, whether it included the theft of cne horse only ; the doubt resting on the slender foun- dation that an earlier Act spoke of stealing “any “horse,” in the singular number (a). Perhaps the same spirit may be found in the more modern deci- sions, that a Court was not bound to know that a colt was a horse, in an Act against horse-stealing (b) ; or that a pig was a “hog” in an Act against hog-stcal- ing (c); and that an enactment which made it a felony to “stab, cut, or wound,” did not reach the case of biting off a nose or a finger, because the injury thus inflicted was not caused by an instrument (d); nor that of breaking a collar-bone, when the skin was not broken (e). A strict construction requires, at least, that no case shall fall within a penal statute which does not com- prise all the elements which, whether morally material or not, are in fact made to constitute the offence as defined by the statute. Thus, the Coventry Act, 22 & 23 Car. 2, which made capital the infliction, with malice aforethought and by lying in wait, of a (a) 2 Hale, 365; 1 Ed. 6, P. 446; R. ow Jeans, 1 0. & K. ce. 12. 539. Comp. R. v Shadbolt, 5 (0) R.v. Beany,R. & R.416; C.& P. 504; R. v Elmsley, 2 comp. R. 7. Welland, R. & R. Lew. 126; R. v. Waltham, 3 494. Cox, 442; R. ». Owens, 1 Moo. (c) U.S. » McLain, 2 Brev. C. C.205. 443 (Tennessee). (e) R. v Wood, 4 ©. & P. (d) R. v. Stevens, 1 Moo. 381. ©. C. 409; R. v. Harris, 7 C. & Digitized by Microsoft® STRICT CONSTRUCTION OF PENAL LAWS. 823 variety of disfiguring or disabling bodily injuries, was held not to include any such outrage, however mali- cious and deliberate, when not preceded by a lying-in- wait with the intent of committing it (a). And it was much doubted whether a person who inflicted such injuries with intent to murder, and not merely to maim and disfigure, fell within the Act (b). If a pirate attacks a vessel, but, instead of taking her, extorts from her master a promise to pay a sum for her redemption, no piracy would be committed, for there was no taking (c). The Riot Act, which made it felony for rioters to remain assembled for more than an hour after the proclamation set forth in the Act has been made, failed of effect if the proclamation was not made fully and accurately ; as if, for example, the final words, “God save the king,” were omitted (d). 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 Admiralty sworn before a Master in Chancery, though the Admiralty was in the habit of admitting affidavits so sworn (e). (a) 1 Hawk. 108n.; R. v. Child, (c) Molloy, 61, s. 18. 4C. & P. 442 ; comp. sup. 284. (d) R. v Child, 4 C. & P. (0) So held per Lord King 442. See R. v Woolcock, 5 C. and Yates J. in R. v. Coke, 1 & P. 516. East, PC. 400; dubit. Willes J. (e) R. v. Stone, 23 LJ. MC. and Eyre B. See also R. vu 14. Williams, Id. 424. Digitized by Microsoft® B24 INTERPRETATION OF STATUTES. An Act which made it penal to personate “any “ person entitled to vote” would not be violated by personating a dead voter (a). It would be different if the offence were personating a person “ supposed “ to be entitled to vote” (b). A penalty imposed on a man who ran away, leaving his wife and children chargeable, or whereby they became chargeable, would not be incurred by his simple desertion, without the intent that his family should become chargeable to the parish (c). Nor is the husband liable to conviction for refusing to maintain his wife, when she refuses to live with him, though her refusal was owing to his ill-treatment (d). A gamekeeper who kills wild rabbits which it was his duty to protect, in his master’s woods, and takes them away at once and sells them, is not guilty of embezzling them, for he did not get posses- sion of them “for or on account of ” his master (e). A statute which imposed a penalty on an unqualified person who, either in his own or another’s name, did any act appertaining to the office of proctor for fee or reward, would not apply to mere agents, or to acts which, though usually performed by proctors, were not (a) Whiteley v. Chappell, LR. 82. See also Heath v. Heape, 4 QB. 147. See also R. »% 26, LJ. MC. 49. Brown, 2 East, P.C. 1007. (d) Flannigan v. Bishop Wear- (b) R. v. Martin, R. & R. mouth, 8 E. & B. 45, 27 LJ. 324. MC. 46. (c) Reeves v. Yeates, 1 H. & (e) R. v. Read, 3 QBD. 131, C. 435, 31 LJ. 241; Sweeny». 47 LJ. MC. 50. Spooner, 3 B. & 8. 329, 32 LJ. Digitized by Microsoft® STRICT CONSTRUCTION OF PENAL LAWS. 825 of strict right incident to their office ; such as pre- paring the documents necessary for obtaining. letters of administration, where there was no contest (a). An Act which punishes the obtaining of any “ chattel, “money, or valuable security” by a false pretence is not violated by obtaining “credit on account,” by a false pretence (b) ; nor by obtaining a dog by a false pretence, for a dog is not a chattel, the subject of larceny (c). Anagent entrusted with money to invest on mortgage is not liable to conviction for embezzling it, under an Act which makes it a misdemeanour in an agent to misappropriate property entrusted to him “for safe custody ” (d). Obtaining from the correspondent of a banker a sum of money on a cheque drawn in favour of the corre- spondent on the banker, on whom the drawer falsely pretended he had authority to draw, would not be an attempt to obtain money from the banker by false pre- tences. If the correspondent were to obtain the money from the banker, it would not be obtained by the authority of the drawer of the cheque; nor, pre- sumably, by his wish, for he would gain nothing by it (e). (2) 6&7 Vict. c. 73, 23 & (c) R. v Robinson, 28 LJ. 24 Vict. c. 127; Stephenson » MC. 58. Higginson, 3 HL. 638; Law (d) 24 & 25 Vict. c. 96,8. 76; Soc. v. Shaw, 9 QBD. 1,51 LJ. BR. v. Newman, 51 LJ. MC. 87. QB. 249. (ec) Rv. Garrett, Dears, 232, (b) R. v. Wavell, Ry. & Moo, 23 LJ. MC. 30. 224, Digitized by Microsoft® 326 INTERPRETATION OF STATUTES. The Act which punishes 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 (a). It was held that the Act which imposes a penalty for “baiting” animals did not apply to setting dogs in pursuit of rabbits in a small enclosed space of three or four acres, from which the rabbits could not escape ; the word “ baiting” being, if not etymologically, at least popularly, confined to attacks on animals tied to a stake (b). The 25 & 26 Vict. c 114, 8. 2, which authorizes a constable in any public place to search a person suspected of having unlawfully obtained game, and to seize the game, and then to summon the person before justices, was held not to authorize a summons where there had been no seizure in a public place (c). A person found on premises for an immoral purpose in- volving no breach of the criminal Jaw does not fall under the penalty imposed for being found on premises “for an “unlawful purpose” (d). Nor would a man who obtained a licence to retail beer, by means of a certificate that he was “a person of good character,” be liable to convic- tion for using a certificate which he knew to be false, (2) R. v. Hennah, 13 Cox, CP. 638; Turner v. Morgan, 547. LR. 10 CP. 587. (6) Pitts v. Millar, LR. 9 QB. (d) 5 Geo. 4, c. 83; Hayes». 380. Stephenson, 3 Law T. NS. QB. (c) Clarke v. Crowder, LR. 4 296 (1860), Digitized by Microsoft® STRICT CONSTRUCTION OF PENAL LAWS. 327 merely because he cohabited with a woman without being married to her (a). 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 for getting 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 (b). Where an 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 dwelling, 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 pro- visions of 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 punish- ment (c). Again, as illustrative of the rule of strict construc- (a) R. v. Leader, 16 CB. NS. (c) Pearson v. Hull, 3 H. & 584, 33 LJ. MC. 231. C. 921, 35 LJ. MC. 44; diss. (b) Chelsea Vestry v King, Martin B. See another example 17 CB. NS. 625; 34 LJ. MC.9. in Elliott ». Majendie, LR, 7 See Great Western R. Co. v QB. 429, Bishop, LR. 7 QB. 550. Digitized by Microsoft® 328 INTERPRETATION OF STATUTES. tion, it has been said that while remedial laws may extend to new things not in esse at the time of making the statute (a), 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 (6). 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 (c). The Stock Jobbing 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 industry, and injuring commerce—declared void all such contracts “in any public or joint stock, or other public securi- “ ties whatsoever,” was held, notwithstanding the mis- chief in view, and the wide terms used, not to apply (a) 2 Inst. 35; per cur. in (6) Fost: Cr. L. 372. Dawes v. Painter, Freem. K. B. (c) R. v, Smith, LR. 1 C. C. 176. Sup. p. 93. 270. Digitized by Microsoft® LIMITATION OF THE RULE. 829 to transactions in foreign funds(a) or in railway shares (6), on the ground that the former were not dealt in, and the latter were not known, in England, when the Act was passed. But this degree of strictness may be regarded as extreme. It could hardly be contended that printing 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 American drug (c). 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 colour, or use molasses or any preparation in lieu of malt and hops, under a penalty of 200/., 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 Wm. 4, ec. 64 (d). The 8 Anne, c. 7, which enacted that if any sort of prohibited goods should be landed without (a) 7 Geo. 2, c. 8, repealed (2) Hewitt v Price, 4M. & by 23 Vict.c.28; Henderson». Gr. 355. Bise, 3 Stark. 158; Wells ». (c) Hallam, Const. Hist. c. Porter, 2 Bing. NC. 722; comp. 15. Smith v. Lindo, 5 CB. NS. 587, (d) Atty.-Genl. v. Lockwood 27 LJ. 196. 9M. & W. 378. Digitized by Microsoft® 330 INTERPRETATION OF STATUTES. payment of duty, the offender should forfeit treble value, was held to extend to gloves, which were not prohibited until the 6 Geo. 3(a). 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 (5). It was held that the 8 Geo. 2, c. 13, which imposed a penalty for piratically engraving, etching, or other- wise, or “in any other manner,” copying prints and engravings, applied to copying by photography, though that process was not invented till more than a ceutury after the Act was passed (c). 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 (d). Under an Act which imposed a penalty for selling bread otherwise than by weight, except bread “usually sold” under the denomination of fancy bread, it was held penal to sell bread which would have fallen within the exception at the time when the Act was passed, but whichhad since (a) Atty.-Genl. v, Saggers, 1 (c) Gambart v. Ball, 14 CB. Pri. 182. NS. 306, 32 LJ. 166; Graves (6) Collier ». Worth, 1 ExD. —v. Ashford, LC. 2 CP. 410. 464. See R. v. Cottle, 16 QB. (d) Taylor v. Goodwin, 4 412, and Milton v. Faversham, QBD. 228 ; Parkyns v. Preist, 10 B. & 8. 548. 7 QBD. 313. Digitized by Microsoft® STRICT CONSTRUCTION OF PENAL LAWS. 331 ceased to be sold under the denomination of fancy bread (a). The general principle in question is well exemplified by comparing the manner in which an omission which, it was inferable from the text, was the result of accident, has been generally dealt with in penal and in remedial Acts. Thus, where the owner of mines was required, under a penalty, in case (1) of loss of life in the mine by accident, or (2) of personal injury arising from explosion, to send notice of such accident to an inspector within twenty-four hours “from the loss of “life,” (omitting the casc of personal injury), the Court refused to supply, in order to make the defendant liable to a conviction, the obvious omission in the latter branch of the sentence, and held that notice was not necessary when personal injury from explosion, short of loss of life, had occurred ; although the men- tion of such injury in the earlier part of the sentence was idle and insensible without such an interpolation (0). The 5 & 6 W. 4, c 68, s. 28, which empowered inspectors to examine “ weights, measures, and scales,” in shops, and if upon examination it appeared that “the said weights or measures” (omitting scales) (a) R. v. Wood, LR. 4 QB. 29 LJ. MC. 65; comp. Williams 559 ; comp. Aérated Bread Co. v. Evans, 1 ExD. 277, cited v. Gregg, LR. 8 QB. 355. inf. p. 342. (5) Underhill », Longridge, Digitized by Microsoft® 332 INTERPRETATION OF STATUTES. were light or unjust, to seize them, was held not to authorize a seizure of scales (a). The Municipal Cor- porations Act of William 4, after empowering the borough justices to appoint a clerk to the justices, pro- vided 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 alderman 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 co for the purpose of bringing a person within the penal enactment (b) ; though also relieving him from indict- ment (c). So, the Court refused to supply a casus omissus uncer the Vaccination Act of 1871, as it was an enactment creating an offence (d). If the statutes, (a) Thomas v. Stephenson, R. v. Davis, LR. 4 C. C. 272. QE. & B. 108, 22 LJ. 258. See Exp. National Mere. Bank, (b) Coe » Lawrence, 1 E. & 15 ChD. 42, sup. p. 14. B. 516, 22 LJ. 140. (d) Broadhead v. Holdsworth, (c) Per Coleridge J. Seealso 2 ExD. 321. Digitized by Microsoft® LIMITATIONS OF THE RULE. 333 in these cases, had been remedial, the omission would probably have been supplied (a). 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 be deter- mined (b). Among them is the rule 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 object of the Legislature. The paramount object, in construing penal as well as other stitutes, 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 (c). They are, indeed, frequently taken 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 legislative intent, or, to use Lord Coke’s words, to suppress the mischief and advance the remedy (d). Thus, the Act which makes it felony to set fire to or damage a ship or vessel has been construed as including (2) Re Wainwright, 1 Phil. (c) Id. 396. 258, sup. p. 303. (d) Heydon’s Case, 3 Rep. (b) Per cur. in U.S. v. Hart- 7b. well, 6 Wallace, 395. Digitized by Microsoft® 334 INTERPRETATION OF STATUTES. an open boat of eighteen fect in length(a). Under the Statute which makes it a misdemeanour knowingly to utter counterfeit coin is included a genuine coin from which the milling has been filed and replaced by another (b). 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 enforce- ment of the man’s legal obligation, which did not extend to the support of his illegitimate children (¢). 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 (d) ; 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 (a) Semble per Patteson J. 8. 58; Westminster v. Gerrard, in R. v. Bowyer, 4C.& P.559; 2 Bulst. 346. see Re Fergusson, LR. 6 QB. (d) 4&5 Ph & Mic. 8, 280; sup. 86. 24 & 25 Vict. c. 100, 8. 55; R. (b) R. 2 Hermann, 4 QBD. v. Cornforth, 2 Stra. 1162; and 284. see R. v. Hodnett, 1 TR. 96. (c) R. v. Maude, 2 Dowl. N. Digitized by Microsoft® WIDE MEANING GIVEN TO WORDS. 335 voluntary and temporary elopements made with thie active concurrence of the girl («). Lord Coke thought that burglary might be com- mitted in a church, because a church is the mansion of God; but Lord Hale thought this opinion only a quaint turn without any argument (b). The “ break- “ing” required to constitute burglary includes acts which would not be so designed in popular language ; such as lifting the flap of a cellar (c), or pulling down the sash of a window (d), or raising a latch (e), or even descending a chimney, for that is as much closed as the nature of things permits(f). Lord Hale, who doubted whether the latter act was a breaking, was relieved from deciding the point in the case before him, as it was elicited that some bricks had been loosened in the thief’s descent, which sufficed to constitute a break- ing (g). Indeed, the burglar “ breaks” into a house if he gets admittance by inducing the inmate to open the door by a trick, as by a pretence of business, or by raising an alarm of fire (/). (a) R. vu. Robins, 1C. & K. P.C. 417; R. vw Russell, 1 Moo. 456; R. vw. Kipps, 4 Cox, 167; C.C. 377. Comp. R. v. Law- R. v. Biswell, 2 Cox, 279; R.v. rence, 4 C. & P. 231. Manktelow, Dears. 159, 22 LJ. (d) R. v. Haines, R. 2 Moo. MC. 115; R. » Timmins, Bell, 451. 276, 30 LJ. MC. 45. (e) R. v. Jordan, 7 CP. 432. (6) 1 Hale, 556. See Folke- (f) 1 Hawk. c. 38,5. 4; RB. v. stone Corp. ». Woodward, 15 Brice, R. & R. 450. Eq. 159. (g) 1 Hale, 552. (c) Brown’s Case, 2 East, (h) 2 East, PC. 485. Digitized by Microsoft® 336 INTERPRETATION OF STATUTES, A threatening letter is “ sent” when it is dropped in the way of the person for whom it is destined, so that he may pick it up(a); or is affixed in some place where he would be likely to see it (b); or is placed on a public road near his house, so that it may, how- ever indirectly, reach him, which it eventually does after passing through several hands (c); although in none of these cases would the paper be popularly said to have been “sent.” To make false signals, and thereby to bring a train to a stand on a railway, was held to be within the enactment which made it an offence to “obstruct” a railway (d); and an enactment which makes it a mis- demeanour to do anything to obstruct an engine or carriage using a railway, was held to include railways not yet open to public traffic, and to apply, though no engine or carriage was obstructed (e). A person “suffers” gaming to go on in his house who purposely abstains from ascertaining, or purposely goes out of reach of seeing or hearing it(f); and he uses an instrument for the destruction of game on a (a) R. v. Jepson, and R. v. (d) R. v. Hadfield, LR. 1. C. Lloyd, 2 East, PC.1115, 1122; 253; R. v Hardy, Id. 278; R. v. Wagstatf, R. ds R. 398. comp. Walker v. Horner, 1 (6) RB. v Williams, 1 Cox, QBD. 4. 16. (e) R. v. Bradford, Bell, 268. (c) R. v. Grimwade, 1 Den. (f) Redgate v. Haynes, 1 30; and see R. v. Jones, 1 Cox, QBD. 89. 67; 5 Cox, 226. Digitized by Microsoft® WIDE MEANING GIVEN TO WORDS. 337 Sunday, who sets a snare on Saturday, and leaves it till Monday (a). An Act which made it penal to “administer,” or “to cause to be taken,” a noxious drug, to procure abortion, would be violated by one who supplied such a drug to a woman, and explained to her how it was to be taken, and she afterwards took it accordingly, in his absence (b). And a man supplies such a drug, “ knowing it to be intended” to procure abortion, if he so intended it, though the woman did not (c). 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 pro- prietor of the painting had made from it (d). A servant receives money “ for or in the name or on “account of his master” within the Act against embezzlement, who, having a cheque given to him in his own name for his master, gets it cashed by a person ignorant of the circumstances ; for though that person did not pay the money on account of the master, it was enough that it was received on his account (e). The Adulteration Act, 1875, which makes it penal to (a) Allen v, Thompson, LR. 343, 33 LJ. MC. 60; comp. R. “BQB. Seealso Rutherv. Harris, v. Fretwell, L. &C. 161, 31 LJ. 1 ExD. 97, 45 LJ. 103. MC. 145. (6) R. v. Wilson, D. & B. 127, (d@) Exp. Beal, LR. 3 QB. 26 LJ. MC. 16; R. v Farrow, 387. D. & B. 164. (e) R. v. Gale, 2 QBD. 143. (c) R. v. Hillman, L. & C. 4 Digitized by Microsoft® 338 INTERPRETATION OF STATUTES, 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 (a). -A man who fires from a highway at game, has tres- passed 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 un- lawful purpose, he becomes a trespasser(d). If he walks with a gun with intent to kill game, he “ uses” the gun for that purpose without firing, within the statute which makes using a gun with that intent penal (c); and the offence of “taking” game is com- plete when the game is snared, though neither killed nor removed (d). A “public place,” too, has received a very wide meaning in cases of nuisance (e). A person who pays for goods by a cheque on a bank where he has no assets is guilty of “obtaining goods “by false pretences ;” for in giving the cheque he im- pliedly represents that he has authority from the bank (a) Hoyle » Hickman, 4 _U. S. a Morris, 14 Peters, 464. QBD. 233, 48 LJ. MC. 97. (d) 5 Geo, 3, « 14; R. o. (6) Mayhew v Wardley, 14 Glover, R. & R. 269. CB. NS. 550; R. w Pratt, 4 E: (e) See R. v. Thallman, L. & & B. 860, C. 326, 33 LJ. MC. 58. See (c) 5 Anne, c. 14,8.4; 1& Golding v. Stocking, LR. 4 QB. 2 Wm. 4, c. 32, 8. 23; R.v 516; Langrishe v. Archer, 10 King, 1 Sess. Ca. 88; see also QBD. 44. Digitized by Microsoft® WIDE MEANING GIVEN TO WORDS. 339 to draw it, and that it is a good and valid order for payment of the amount (a). An Act which imposed a penalty on corn-dealers for omitting to make a return of every parcel of corn bought from them would be broken, though the un- returned sales were not evidenced in writing as required by the Statute of Frauds, and therefore were not enforceable in a Court of Justice (0). The enactment which punished with transportation for life every person, whether employed by the Post- master-General, or by “any person under him, or on “behalf of the post-office,’ who stole a letter with money in it, was held to include a person who gra- tuitously assisted a postmaster, at his request, in sorting the letters(c). The Bankrupt Act of 1849, which disentitled a bankrupt to his certificate, if he had, within a year of his bankruptcy, lost two hundred pounds by “any contract” for the purchase or sale of Government or other “ stock,” was held to apply to one who had lost that amount in the purchase of railway “shares,” and by several contracts(d). The employ- ment of an English steam tug in towing a prize to the (a) R.v. Hazelton, LR.2 0.0. LR. 2 0. C. 150, 44 LJ. 65. 134; R. v. Parker, 7 C. & P. Comp. Martin v. Ford, 5 TR. 829. as 101, and Bennett v. Edwards, (8) R. v. Townrow, 1 B. & 6th point, 7 B. & C. 586. Ad. 65. (d) Exp. Copeland, 22 LJ. (c) R. v Reason, Dears. 226, Bey. 17,2 De G.M. & G. 914. 23 LJ. MC. 11; R. a. Foulkes, 22 Digitized by Microsoft® 340 INTERPRETATION OF STATUTES. captor’s waters is a breach of the provision of the Foreign Enlistment Act of 1870, against “dispatching “a ship to be employed in the military or naval service “of a foreign state” (a). Where an Act (7 Vict.c. 15) provided that if any accident occurred in a factory, causing an injury to any person employed there, of such a nature as to prevent his return to work at 9 A.M. on the next day, it must, under a penalty, be reported by the occupier of the factory to the district surgeon and the sub-inspector ; it was held that the Act applied to all accidents, whether caused by the machinery of the factory or otherwise ; and that the sufferer was prevented from returning to work next day, within the meaning of the Act, although he did return for that purpose, but was unable to work (0). The Corrupt Practices Prevention Act of 1854, which declares that whoever, “ directly or indirectly,” makes a gift to a person to induce him to “ endeavour “to procure the return” of any person to Parliament shall be deemed guilty of bribery, was held to extend to a gift made to induce its recipient to vote for the giver at a preliminary test ballot, held for the purpose of selecting one of three candidates to be proposed when the election came. In voting for the giver at the test ballot, the voter indirectly ‘‘ endeavoured to “ procure ” his return at the election (c). (a) Dyke v Elliott, LR. 4 LR. 3 QB.‘192. PC. 184. (c) Britt v. Robinson, LR. 5 (6) Lakeman v. Stephenson, CP. 503. Digitized by Microsoft® WIDE MEANING GIVEN TO WORDS. 341 An enactment which prohibited any officer con- cerned in the administration of the poor laws from “supplying for his own profit” any goods “ ordered ” to be “given” in parochial relief to any person, was held to reach a guardian whose partner had, with. knowledge of the facts, sold a bedstead to the re- lieving officer on behalf of the parish for delivery to a pauper; although the guardian was ignorant of the transaction, the bedstead had not been “ ordered” by the guardians (a), 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 witness a foot-race and a pigeon-match, was held liable to conviction 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 connected in their business, or that he derived any profit from it (c). The Highway Act of Will. 4, which enacted that if (a) Greenhow v. Parker,6H. D. & R. 184. Comp. Proctor & N. 882, 31 LJ. Ex. 4. See ». Manwaring, 3B. & A. 145. Woolley v. Kay, 1 H. &N. 307, (c) Eastwood v. Miller, LR. 25 LJ. Ex. 351. 9 QB. 440; Haigh v. Sheffield, (6) Davies v. Harvey, LR. 9 LR. 10 QB. 102. QB. 433 ; Stanley v. Dodd, 1 Digitized by Microsoft® 342 INTERPRETATION OF STATUTES. 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 five pounds, if “the driver” was not the owner of the carriage, and ten pounds if “ the driver” was the owner, (not mentioning the rider), was con- strued 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 carriage was liable to a penalty of ten pounds, the offender in all the other cases mentioned was hable to five pounds (a). An Act which made it felony riotously to demolish, pull down, or destroy, or to begin to demolish, pull down, or destroy a church or dwelling, would not reach a case where the demolition had not gone beyond moveable shutters not attached to the free- hold ; for whatever might have been the intent of the rioters, this was not a beginning of the demolition of the house to which the shutters belonged (b); nor would a partial demolition of the building be a “ be- “ginning to demolish” within the Act, if not done with the intention of completing it(c). But if the (2) Williams » Evans, 1 stone v Burnes, 1 ExD.°67. Ex.D. 277, overruling R. 7. (c) Id. R. v. Thomas, 4 C. & Bacon, 11 Cox, 540. P. 237, per Littledale J.; R. (b) R. v. Howell, 9 C.& P. v Price, 5 C. & P. 510, per 437. Pilcher v. Stafford,4 B.& Tindal C.J.; Drake », Footitt, S. 775, 33 LJ. MC. 113; Eddle- 7 QBD. 201, 50 LJ. 141.. Digitized by Microsoft® CONSTRUCTION OF PENAL ACTS. 845 structure were in all substantial respects destroyed, the offence would be included in the Act, although ‘some portion, as, for instance, a chimney, had been suffered to remain uninjured(a). Nor would it be considered as beyond the operation of the Act, if the demolition had been effected by fire; although arson is a distinct felony provided for by a different enactment (b). Some of the decisions relative to the theft of writings seem to convey a fair impression of the spirit in which criminal statutes have been construed. As neither land nor mere rights were capable of being stolen, it was early established that title deeds relating to lands, and written contracts, which were mere rights or the evidences of rights, were not the subjects of larceny. To steal a skin worth a shilling was felony ; but when it had 10,000/. added to its value by what was written on it, it was no offence at common law to take it away (c); and a person who broke into a house at night with the intention of stealing a mortgage deed would not have been guilty of felony, for the theft was not a felony, but a misdemeanour only(d). If, indeed, the document were worthless as a right, or (a) R. v. Langford, Car. & M. Pooley, R. & R. 12; Nuno 602. aliter, vide 24 & 25 Vict. c. 96, (6) R. vw Harris, and R. vw $$. 27 ands. 2. Simpson, C. & M. 661, 669. (d) R. v Powell, 21 LJ. MC. (c) Arg. in R.v. Westbeer, 2 78. Stra. 1135, 1 Leach. 12; R. » Digitized by Microsoft® 344 INTERPRETATION OF STATUTES. evidence of a right, such as an unstamped cheque, the thief might be punished for stealing the piece of paper on which it was written (a); but if it represented a right to land or to an action, it lost, as regards the question of larceny, its physical character of parch- ment or paper. Where the absence of a stamp did not destroy its documentary character, but only excluded it as evi- dence in a Court of Justice until stamped, the theft could not be treated as of a piece of paper(b). But a ‘paper like a pawnbroker’s ticket, indicating, not a mere right of action, but a right to a specific personal chattel of which the holder of the ticket may be re- garded as in possession (for the possession of the pawnor is his possession for the purpose of an indict- ment), would be the subject of larceny (c). 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 (d). But one which punished an agent who in violation of good faith, and contrary to the purpose of his trust, sold, negotiated, transferred, pledged, or in any manner converted to his own use (a) R. v, Perry, 1 Den. 69. MC. 90. (b) R. v. Watts, 1D. & L (d) R. v. Boulton, 1 Den. 508, 326, 23 LJ. MC. 56. 19 LJ. MC. 67; R. v. Beecham, (c) R. v. Morrison, Bell, 158, 5 Cox, 181. See Marks ». 98 LJ. MC. 210. See R. wu Benjamin, 5 M. & W. 565. Fitchie, 1 D. & B. 175, 26 LJ. Digitized by Microsoft® CONSTRUCTION OF PENAL ACTS. 345 “any chattel or valuable security” with which he was intrusted, would not include a policy of insurance intrusted to him for collection ; for it is neither a chattel capable of sale or barter, nor yet a valuable security, for this implies that money is payable irre- spectively of any contingency ; and it is not capable of being sold, negotiated, transferred, or pledged (a). The tendency of modern decisions, upon the whole, is to narrow materially the difference between what is called a strict and a beneficial construction. All statutes are now construed with a more strict regard to the language, and criminal statutes, with a more rational regard to the aim and intention of the Legis- lature, than formerly. It is unquestionably right that the distinction should not be altogether erased from the judicial mind (6); for it is required by the spirit of our free institutions that the interpretation of all statutes should be favourable to personal liberty (c) ; and it is still preserved in a certain reluctance to supply the defects of language, or to eke out the meaning of an obscure passage by strained or doubt- ful inferences(d). The effect of the rule of strict con- struction might almost be summed up in the remark, that where an equivocal word or ambiguous sentence (a) 24 & 25 Vict. c. 96, s. 75, (c) Per Lord Abinger in R. v. Tatlock, 2 QBD. 157. Henderson v. Sherborne, 2 M. (6) Per Pollock C. B. in & W. 239. Nicholson v. Fields, 32 LJ. Ex. (d) Per Story_J. in the In- 235, 7 H. & N. 817. dustry, 1 Gall. 117. Digitized by Microsoft® 346 INTERPRETATION OF STATUTES. leaves a reasonable doubt of its meaning which the canons of interpretation fail to solve, the benefit of the doubt should be given to the subject, and against the Legislature which has failed to explain itself (a). But it yields to the paramount rule that every statute is to be expounded according to the intent of them that made it (b); and that all cases within the mischiefs aimed at are to be held to fall within its remedial influence (c). SECTION II.—STATUTES ENCROACHING ON RIGHTS, OR IMPOSING BURDENS. Statutes which encroach on the rights of the subject, whether as regards person or property, are similarly sub- ject to a strict construction. It is presumed that the Legislature does not desire to confiscate the property, or to encroach upon the rights of persons ; and it is therefore expected that if such be its intention, it will (a) See Hull Dock Co. ». Browne, 2 B. & Ad. 59; per Pollock in Nicholson v. Fields, ubi sup. ; and per Bramwell B. in Foley v. Fletcher, 28 Ld. Ex. 106, 3 H. & N. 769; Puff. L. N. b. 5, « 12,8. 5, Barb. n. 4; Lewis v Carr, 1 Ex. D. 484, = (b) 4 Inst. 330, The Sussex Peerage, 11 Cl. & F. 148; 2 Peters, 662. (c) Fennell v, Ridler, 5 B. & C. 409; The Industry, ubi sup. See ex. gr. v. Charretie, 13 QB. 447; Wynne v. Middleton, 1 Wils. 126; Archer v. James, 2 B. &8. 61, 31 LJ. 153; Smith v. Walton, 3 CPD. 109, 47 LJ. MC. 45; May v. G. W. R. Co., LR. 7 QB. 384, per Cockburn C.J. Digitized by Microsoft® STATUTES ENCROACHING ON RIGHTS. 847 manifest it plainly, if not in express words, at least, by clear implication, and beyond reasonable doubt (a). The Act 21 Edw. 1, de malefactoribus in parcis, which authorised a parker to kill trespassers whom he found in his park, and who refused to yield to him, was construed as strictly limited to a legal park, that is, one established by prescription or Royal Charter, and not merely one by reputation (0). ; A local harbour Act, which imposed a penalty on “any person” who placed articles “on any quay, “ wharf, or landing place, within ten feet of the quay “head, or on any space of ground immediately adjoin- “ing the said haven, within ten feet from high-water “ mark,” so as to obstruct the free passage over it, was held to apply only to ground over which there was already a public right of way, but not to private pro- perty not subject to any such right, and in the occu- pation of the person who placed the obstruction on it(c). Notwithstanding the comprehensive nature of the general terms used, it was not to be inferred that the Legislature contemplated such an interference with 789. (5) 1 Hale, 491; 3 Dyer, (a) See per Bramwell L.J. in Wells v. London & Tilbury R. Co., 5 ChD. 130; per Mellish L. J. in re Lundy Co., LR. 6 Ch. 467; per James L. J. in Exp. Jones, LR. 10 Ch. 665; per cur. in Randolph v. Milman, LR. 4 CP. 113; Green v. R., 1 App. 513; Exp. Sheil, 4 ChD. 326 b. Com. Dig. Parl. R. 20. (c) Harrod v. Worship, 1 B. & 8. 381, 30 LJ. MC. 165; diss. Wightman J. See also Wells v, London & Tilbury R. Co., 5 ChD. 126; Yarmouth »v. Simmons, 10 ChD. 518, Digitized by Microsoft® 348 INTERPRETATION OF STATUTES. the rights of property as would have resulted from. construing the words as creating a right 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 satisfied, did not deprive the creditor of any rights acquired by mortgage. Though he could not recover, he was entitled to retain (a). On this ground, it would seem, Statutes of Limita- tion are to be construed strictly. There may not ‘necessarily be any moral wrong in setting up the defence of lapse of time, but it is the creature of positive law, and is not to be extended to cases which are not strictly within the enactment; while pro- visions which give exceptions to the operation of such enactments are to be construed liberally (6). Statutes 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 (c). (a) Exp. Sheil, 4 ChD. 789. Diamond, 4 B. & C. 243; per (b) See the Judgment of Lord Park J. in Doe v, Snaith, 8 Bing. Cranworth in Roddamv. Morley, 152; Partington v. Atty.-Genl. 1DeG.&J.1, 26 LJ. Ch. 438. LR. 4 HL. 100; Iles » West (c) Per Bayley J. in Denn», Ham Union, 8 QBD, 69. Digitized by Microsoft® STATUTES IMPOSING BURDENS. 349 ‘The subject is not to be taxed unless the language of the Statute clearly imposes the obligation (a). In a case of doubt the construction most beneficial to. the subject is to be adopted (b). Thus, it was held that an Act which imposed a stamp on every writing given on the payment of money, “ whereby any sum, debt, “ or demand” was “acknowledged to have been paid, “settled, balanced, or otherwise discharged,” was held not to extend to a receipt given on the occasion of a sum being deposited (c). If one instrument be incor- porated by reference in another, its words would not be counted as part of the incorporating deed for the purpose of stamp duty, under an Act imposing a duty according to its length on the instrument, “ together ‘‘with every schedule, receipt, or other matter put or “endorsed thereon, or annexed thereto” (d). Where an Act imposed a stamp duty on newspapers, and defined a newspaper as comprising “ any paper con- “taining public news, intelligence, or occurrences. . to be dispersed and made public,” and also “any paper containing any public news, intelligence, Re Micklethwaite, 11 Ex. 456, 25 LJ. 19. (a) Per Cur. in Hull Dock Co. v. Browne, 2 B. & Ad. 59; per Pollock C. B. in Nicholson v, Fields, 31 LJ. Ex. 233 ; Parry 2. Croydon Gas Co., 11 CB. NS. 579; 15 Id. 568. (b) Per Lord Lyndhurst in Stockton R. Co. v. Barrett, 11 Cl. & F. 602; per Parke B. in (c) Tomkins v, Ashby, 6 B. & C. 541. See also Wroughton v. Turtle, 11M. & W. 561. (d) Fishmongers’ Co. v, Dims- dale, 12 CB 557; 22 LJ. CP. 44. Digitized by Microsoft® 350 INTERPRETATION: OF STATUTES. “or occurrences, or any remarks or observations “thereon . . . published periodically or in parts “or numbers, at intervals not exceeding twenty-six “days,” and not exceeding a certain size ; it was held that a publication, the main object of which was to give news, but 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 con- “veyance of goods on board,” does not extend to a guarantee for the due performance 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 payment of the price on such a sale was held included in the exemption (c) ; the same words being susceptible of meaning different things when used to impose a tax, or to exonerate from it (d). Lord Ellen- borough 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). (a) Atty.-Genl. v. Bradbury, (d) Per Blackburn J., LR. 2 7 Ex. 97, 21 LJ. 12. QB. 151, citing Curry v. Eden- (b) 5 & 6 Vict.c. 79; Rein». sor, 3TR. 527, and Warrington Lane, LR. 2 QB. 144. | - v. Furbor, ubi sup. See also (c) Warrington ». Furbor, 8 Armitage v. Williamson, 3 App. East, 242. 355. Digitized by Microsoft® STATUTES IMPOSING BURDENS. 851 At the same time, such Acts, 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 language when needful to effectuate the intention of the Legis- 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 necessary 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 favour of the defendant. They are regarded rather in their remedial charac- ter; as intended to prevent fraud, suppress public wrong, and promote the public good; and are so construed as to most effectually ae those objects (c). It is said that all statutes which give costs are to be construed strictly, on the ground that costs are a kind of penalty (d). There is little authority in support of (a) U.S. ». Thirty-six barrels (c) Cliquot’s Champagne, 3 of wine, 7 Blatchf. 459. Wallace, 145, (5) R. v. Consistory Court, 2 (d) Cone v. Bowles, .1 Salk. : B. & S. 339, 31 LJ. QB. 106. 205. See per Mellor J. in Cobb See R. v. Warwick, 8 QB. 926, 4. Mid-Wales R. Co., LR. 1 QB. sup. 85. 351, Digitized by Microsoft® 252 INTERPRETATION OF STATUTES. 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 on persons who were strangers to an action of ejectment, but at whose instance it was brought or defended (a). Enactments, also, which impose forms and solemni- ties on contracts on pain of invalidity, are con- strued strictly, so as to be as little restrictive as possible of the natural liberty of contracting. It was in allusion to the Statute cf Frauds that Lord Nottingham said that all Acts which restrain the. common law, that is, apparently, which impose re- strictions unknown to the common law, ought them- selves to be restrained in exposition (b). The Statute. of Frauds which enacts that no action shall be brought on contracts (sect. 4), or that the contracts shall not be good (sect. 17), unless “the agreement “or some note or memorandum thereof shall be in “ writing and signed by the party to be charged therewith, or some other person thereunto by him “lawfully authorised,” has given rise to many de- (a) Hutchinson v, Greenwood, CB. 212; .-Hayward'v. Gifford, 4¥. & B. 324; Mobbsv. Vanden- 4M. & W. 194. See also R. v, brande, 4 B.& 8S. 904; 33 LJ. Pembridge, 3 QB. 901, sup. 31. QB. 177; comp. Evans», Rees, 2 (6) Ash v Abdy, 3 Swanst. QB. 334 ; Anstey v. Edwards,15 664. Digitized by Microsoft® STATUTES REGULATING INSTRUMENTS. 353 cisions, apparently in this spirit. Thus, although it is unquestionably necessary that all the essential elements of the contract shall appear in the writing, such as the subject-matter (a), the consideration (6), and the parties (c), it has been held that it is not necessary that they should be contained in any formal document. A note or letter stating the material par- ticulars, verbally accepted, suffices(d). The statute is satisfied, also, by a number of letters or other docu- ments connected either physically, by being fastened together (e), or by their own internal evidence, without the aid of extrinsic evidence, if all the ele- ments of the contract may be collected from them (/). (a) Shardlow v. Cotterell, 20 ChD. 90, 51 LJ. 353; -Vale of Neath Colliery v. Furness, 45 LJ. Ch. 276. (6) Wain v. Warlters, 5 East, 10. (c) Williams v. Lake, 2 E. & E. 349; Williams v. Byrnes, 1 Moo. NS. 154; Williams v. Jordan, 6 ChD. 517; Beer » London and Paris Hotel Co., LR. 20 Eq. 412. See, under the 30 Vict. c. 23, 8. 7, Re Arthur Assoc. LR. 10 Ch. 542; comp. Edwards v. Aberayron Soc. 1 QBD. 563. (d) Colman v. Upcot, 5 Vin. ‘Ab. 527, pl. 17; Welford »v. Beazley, 3 Atk. 503; Bill ». Bament, 9 M.& W. 36; Rishton v. Whatmore, 8 ChD. 467; Munday »v. Asprey, 13 ChD. 855; Cane v. Hastings, 7 QBD. 125, 50 LJ. 575. (ce) Kenarthy v. Scofield, 2 B. & C. 945. (f) Shortrede v. Cheek, 1 A. & E.57 ; Boydell v. Drummond, 11 East, 142; Dobell v. Hutchin- son, 3 A. & E. 355; Watts w. Ainsworth, 1 H. & C. 83, 31 LJ. Ex. 448; Morris v. Wilson, 5 Jur. NS. 168; Crane v. Powell, LR. 4 CP. 123; Bonnewell v. Jenkins, 8 ChD. 70; Commins v. Scott, LR. 20 Eq. 11; Kron- AA Digitized by Microsoft® 35 INTERPRETATION OF STATUTES. It has been said that the cases have gone very far in putting the correspondence of parties together, to constitute a memorandum to satisfy the statute (a). Indeed, as it becomes necessary, in such a case, to inquire what the contract really was, in order to de- termine 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 (0). A letter from the purchaser addressed to a third person, stating the terms of the contract (c), and one from the purchaser to the seller, which after setting forth its terms repudiated the contract, have been held suft- cient notes or memoranda of the bargain to satisfy the statute (d). So although it is necessary that the parties to the contract should be sufficiently described to admit of their identification (c), it is not necessary that they heim v. Johnson, 7 ChD. 60, 47 LJ. 132; Beckworth v. Tal- bot, 5 Otto, 289 (U.S.). See Ridgway v. Warton, cited in Jones v. Victoria Dock Co., 2 QBD. 314. (a) Per Pollock C. B. in McLean v. Nicoll, 7 Jur. NS. 999. (b) Per Channell B.,, Thid. See ex. gr. Rishton v. What- more, 8 ChD. 467, 47 LJ. 629. (c) Gibson v. Holland, LR. 1 CP. 1. Sugd. V. & P. 113, 13th ed. (d) Bailey v. Sweeting, 9 CB. NS. 843, 30 LJ. 150; Wil- kinson v. Evans, LR. 1 CP. 407, dubit. Cockburn C.J. in Smith v. Hudson, 34 LJ. QB. 149, 6 B. & S. 431; Buxton v. Rust, LR. 7 Ex. 1, 279. (e) Charlewood v. Bedford, 1 Atk. 495; Champion v. Plum- mer, 1 N. R. 252; Williams v. Lake, 2 E. & E. 349, 29 LJ. QB. 1. Digitized by Microsoft® STATUTES REGULATING INSTRUMENTS. 859 should be described by name. It has been held, for instance, that a contract of sale signed by the auc- tioneer, as “‘ the agent of the proprietor,” or of “the “trustee for the sale” of the property sold, sufficiently described the seller (a); though a contract similarly “sioned by the agent of the vendor” would not suffice (b) ; 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 in- strument 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 (c) ; 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 (d). An agreement, too, has been held to be sufficiently signed by a corporate body, within the meaning of the Statute of Frauds, where a re- (a) Sale v. Lambert, LR. 18 QBD. 714. Eq. 1; Catling v. King, 5 ChD. (c) 29 Car. 2, « 3, 8. 5; 660; Rossiter v. Miller, 3 App. Lemane v. Stanley, 3 Lev. 1. 1124, 48 LJ. Ch. 10. (d) Roberts v. Phillips, 4 E. (6) Potter v. Duffield, LR.18 & B, 450; 24 LJ. 171, and see Eq. 4; Thomas v Brown, 1 the cases, sup. p. 47. AA 2 Digitized by Microsoft® 356 INTERPRETATION OF STATUTES. solution ordering its engrossment and execution was passed by the body and signed by the chairman (a). Acts which establish monopolies (b), or confer ex- ceptional exemptions and privileges, correlatively trenching on general rights, are subject to the same principle of strict construction (c). 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 be- longing to her owners that was on board for the per- formance 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(d). This decision rested on the ground that the enactment abridged the common law right of the injured person ; and that the shipowner was not entitled to more than the meaning of the words strictly imported. So, the enactments which exonerate a ship-owner from lia- (a) Jones v. Victoria Dock (ce) See ex. gr. R. v. Hall Co., 2 QBD. 314. Dock Co., 3 B. & C. 516, Brun- (6) Per Lord Campbell inRead skill ». Watson, LR., 3 QB. 418. ». Ingham, 3 E. & B, 899, 23 LJ. (d) Gale v. Laurie, 5 B. & C. 156; Direct U.S. Cable Co.v, 156; Smith v. Kirby, 1 QBD. Anglo-Am. Co., 2 App. 394. 131. Digitized by Microsoft® MONOPOLIES— NEW JURISDICTIONS. 357 bility for damage caused by his ship through the default of a compulsorily employed pilot, are restricted to cases where the pilot was the sole cause of the damage, without any default on the part of the master or crew (q). The same principle of construction is applied to enactments which create new jurisdictions, or dele- gate subordinate legislative or other powers (b). As the government of India is precluded from legislating directly as to the sovereignty or dominion of the Crown over any part of its territories in India, an enactment by the Indian Legislative Council making a notification in the Gazette conclusive evidence of a cession of territory, was held inoperative to prevent a Court in India from inquiring into the nature and lawfulness of the cession (c). A general order made by the judges of the Court of Chancery, under Parlia- mentary authority to regulate the procedure of that Court, and which directed how a defendant “in any “suit” might be served with process abroad, was held by Lord Westbury (d) limited to those suits in which (a) The Protector, 1 W. Rob, App. 332. 45; The Diana, 4 Moo. PC. 11; (d) Cookney v. Anderson, 1 De The Iona, LR. 1 PC. 426. G. J. & Sm. 365; 32 LJ. 427. (b) See ex. gr. per James L.J. See also Lawman v. Audley, 2M. in Flower v. Lloyd, 6 ChD. 301, & W.535; Great Australian Co. Diss v. Aldrich, 2 QBD. 179. v. Martin, 5 ChD. 1. (c) Dahmodhar v. Deoram, 1 Digitized by Microsoft® 398 INTERPRETATION OF STATUTES. service abroad had been provided for by law, viz, suits relating to land and public stock by the 2 Will. 4, c. 338, and 4 & 5 Will. 4, c. 82. Ifthe order had been construed literally as applicable to all suits, it would, while professedly only regulating the procedure, have, in effect, extended the jurisdiction of the Court; an object foreign to the Act which conferred the power of regulation. This decision, indeed, was afterwards overruled ; but it was on the ground that the juris- diction of the Court had always existed, though there was no power of enforcing it; and that the order, therefore, did not extend the jurisdiction (a). Under a similar power to regulate the practice of their Courts, it is more than doubtful whether the County Court judges have authority to make a rule empowering a judge to appoint a deputy registrar, if the registrar is absent at the sitting of the Court (). The 22 & 23 Vict. ce. 21, which empowered the Barons of the Exchequer to make rules as to the process, practice, and pleading of their Court in revenue cases, was held not to authorize them to make rules granting an appeal to the Exchequer Chamber and House of Lords (c). A different construction would, in effect, have given the Barons authority to confer (a) Drummond v. Drummond, to the official referee, Longman LR: 2 Ch. 32; Hope» Hope, 4 vv. East, 3 CPD. 142. De G. M. & G. 345. (c) Atty.-Genl. v Sillem, 10 (6) Wetherfield v. Nelson, HL. 705, 33 LJ. Ex. 92, 209. LR. 4CP. 571. As to references Digitized by Microsoft® STATUTES CONFERRING POWERS. 359 jurisdiction on two Superior Courts, and to impose on them the duty of hearing an appeal against its decisions (a). A power given to the Court, subject to the restrictions of the Act, to authorize the grant of leases, followed by a proviso that any person entitled to the possession of settled estates might apply to the Court for the exercise of the power, was held not exercisable except on the application of such a per- son (b). When commissioners were authorized, at the same time that they awarded compensation, to apportion the payment among those benefited, an ap- portionment made at a subsequent time was held invalid (c). The Licensing Act, 1872, enacting that where jus- tices have ordered a distress in default of payment of a penalty, they may order, in default of its payment, imprisonment for six months, was held not to autho- rize imprisonment where no order of distress had been made in consequence of the defendant admitting his inability to pay the fine. It would, indeed, have been idle to issue a distress; but, the words were express and positive (d). So, where an Act gives an appeal to (a) Per Lord Kingsdown, Id. Exp. Brown, 3 QBD. 545, 47 230, 10 HL. 775. LJ. 108; per Cockburn CJ., (6) Taylor v. Taylor, 1 ChD. dubit. Mellor J. See other illus- 426. trations, in the construction of (c) Mayor of Montreal v the powers given to the railway Stevens, 3 App. 605; 47 LJ. commissioners, Great Western PC. 67. R. Co. v. R. Com., 7 QBD. 182; (d) 35 & 36 Vict. c. 94,8.51; Toomer v. London, Ch. & D, Digitized by Microsoft® 860 INTERPRETATION OF STATUTES, the next Quarter Sessions, that Court cannot, under a general power to regulate its procedure, reject it, unless the conviction or order appealed against be filed (a), or notices not required by the Statute be given (0), or the appeal itself be lodged, so many days before the Sessions (c). It might perhaps, unless the Statute required that the appeal should be decided at the same Sessions (d), lawfully postpone the hearing of an appeal not complying with those conditions within such time ; but to reject it altogether would be to refuse the appellant the privilege given by the Act, by imposing conditions which the Legislature had not imposed. Where the judge of the Court of Arches was required, under the Public Worship Regulation Act of 1874, to hear a cause in London or Westmins- ter, it was held that he had no power to hear it in the province of Canterbury, and that all his proceedings there were void (e). The power given by the 43 Eliz. c. 2, to justices to appoint “ four, three, or two substantial householders,” as parish overseers, is not well executed by appointing R. Co., 2 Ex. D. 450; 8. E.R. 291, 24 LJ. MC. 138. Co. v. R. Com., 6 QBD. 586. (c) R. uv. Pawlett, LR. 8 QB. (a) R. v. West Riding, 2 QB. 491; R.v. Staffordshire, 4 A. & 705. E. 844. (0) RB. v, West Riding, 5B. & (d) R. v. Belton, 11 QB. 388. Ad, 667; R. v. Norfolk, 5 B. & (e) Hudson v. Tooth, 3 QBD. Ad. 990;-R. v. Surrey, 6D. & 46. L. 735; R. v Blues, 5 E & B. Digitized by Microsoft® STATUTES CONFERRING POWERS. 361 more than four (a); or by appointing a single one, even when he is the only householder in the parish (0). The 355th section of the Merchant Shipping Act, 1854, which empowers the Board of Trade to give the master of a ship a certificate to pilot “any ships be- “longing to the same owner,” was construed as re- quiring that the name of the owner should be men- tioned in the certificate ; and a certificate representing another person as the owner was held not granted in compliance with the statute (c). Where trustees, who were authorized to borrow 30,0000. for building a chapel, and to levy the amount, with interest, by a rate, borrowed 32,000/., 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). A corporate body, 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 (e). (a) R. v. Loxdale, 1 Burr. 145 ; See R. v, All Saints, 13 East, 143. (6) R. vw Cousins, 4 B. & 8, 849, 33 LJ. 87; R. v. Clifton, 2 East, 168. Comp. Preece v. Pulley, 49 LJ. 686, and comp. under Trustee Act, 1850, s. 32, Shipperdson’s Trusts, 49 LJ. Ch. 619 ; Stokes’ Trusts, LR. 13 Eq. 333; Harford’s Trusts, 13 ChD. 135. (c) The Earl of Auckland, 30 LJ. P.M. & A. 121, 127. (d) Richter ‘v. Hughes, 2 B. & C. 499. (e) Chambers v. Manchester, &., R. Co., 5 B. & 8. 588. Digitized by Microsoft® 362 INTERPRETATION OF STATUTES. Rules and bye-laws, also, are construed like other provisions encroaching on the ordinary rights of per- sons. They must, on pain of invalidity, be reason- able, and not in excess of the statutory power authorizing them, or repugnant to that statute or to the general principles of law (a). A local Act which authorized a navigation company to make bye-laws for the orderly using of the naviga- tion, and for the governing of the boatmen carrying ‘merchandize on it, was held not to authorize a bye-law which closed the navigation on Sundays, and prohibited the use of any boat on it, except for going to church (0). Where a charter which founded a school empowered the governors to remove the master at their discretion, and also authorized them to make bye-laws ; it was held that a bye-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 bye-laws did not authorize the making (a) See Hacking v. Lee, 2 E. & E. 910, 29 LJ. 206; Exp. Davis, LR. 7 Ch. 526 ; Bentham v. Hoyle, 3 QBD. 289. See also Hall v. Nixon, LR. 10 QB. 153 ; Young v. Edwards, 33 LJ. MC. 227; Hattersley ». Burr, 4 H. é& C. 153; Brown v. Holyhead Board, 1 H. & C. 601; Fielding . Rhyl, 3 CPD. 272; Saunders oN v S. E. R. Co. 5 QBD. 456 ; Dyson v Lond. & N. W.R., 7 QBD. 32; Ashenden v. Lond. & Br. R. Co., 5 ExD. 190; Dear- den v. Townsend, LR. 1 QB. 11; Torquay v. Bridle, QB., 28 Nov. 1882. (6) Calder and Hebble Nav. Co. v. Pilling, 14 M. & W. 76. Digitized by Microsoft® PRIVATE ACTS GIVING POWERS OR PRIVILEGES. 363 of one which restrained and limited the powers origi- nally given to the governors by the founder. This was in effect to alter the constitution of the school (a). As regards enactments of a local or personal character, which confer any exceptional exemption from a common burden (b), 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 strictly, per- haps, 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 language of their promoters, who asked the Legislature for them ; and when doubt arises as to the construction of that language, the (a) R. v. Darlington School, 6 QB. 682, questioned by Lord Hatherley in Dean v. Bennett, LR. 6 Ch. 489. See also R. wv. Cutbush, 4 Burr. 2204; R. Wood, 5 E. & B. 49; Chilton v. London and Croydon R. Co., 16 M. & W. 212; Williams »v. G. W. R. Co., 10 Ex. 16; Hut- ton v. Scarborough Hotel, 2 Dr. & Sm. 521, 34 LJ. 643; R. vw. Rose, 5 E. & B. 49, 24 LJ. 130 ; Bostock v, Staffordshire R. Co., 3 Sm, & G. 283, 25 LJ. 325; United Land Co. v. G. E. R. Co., LR. 10 Ch. 587; Norton ». London & N. W. R. Co., 9 ChD. 623, 47 LJ. 859; Shillito ». Thompson, 1 QBD. 12. (b) See ex. gr. Perchard wv Heywood, 8 TR. 468. Digitized by Microsoft® 364 INTERPRETATION OF STATUTES. maxim, ordinarily inapplicable 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 (a). Indeed, if words in a local or personal Act seemed to express an intention to enact something unconnected with the purpose of the promoters, and which the committee, if they had done their duty, would not have allowed to be introduced, almost any construction, it has been said, would seem justifiable to prevent them from having that effect (0). (a) See among many authori- wv. G.W. R,7 M. & Gr. 253; ties, R. v. Croke, Cowp. 301, Lofft, 438; Gildart »v. Glad- stone, 11 East, 685 ; Hull Dock Co. v. La March, 8 B. & C. 52; Dudley Canal Co. v. Grazebrook, 1B. & Ad. 59; Hull Dock Co. v. Browne, 2 B. & Ad. 58; Per Patteson J. in R.. v, Cumber- worth, 4 A. & E. 741; Blake- more v. Glamorganshire Canal Co., 1 M. & K. 154; Webb ». Manchester R. Co., 4 Myl. & C. 116 ; Stockton and Darlington R. Co. v. Barrett, 11 Cl. & F. 590, 7 M. & Gr. 870; Scales ». Pickering, 4 Bing. 448 ; Parker Eversfield v. Mid-Sussex R. Co., 3 De G. & J. 286; Simpson ». 8. Staffordshire Waterworks, 34 LJ. Ch. 380; R. v. Wycombe, LR. 2 QB. 310; Morgan ». Metropolitan R. Co., LR. 4 CP. 97; Fenwick v, East London R. Co., LR., 20 Eq. 544 ; per Cock- burn C.J. in Hipkins v. Birming- ham Gas Co., 6 H. & N. 250; Atty.-Genl. v. Furness R. Co., 47 LJ. Ch. 776; Lamb ». N. London R. Co., LR. 4 Ch. 522; Clowes v. Staffordshire Potteries, LR. 8 Ch. 125. (6) Per Lord Blackburn in Digitized by Microsoft® PRIVATE ACTS GIVING POWERS OR PRIVILEGES. 3865 Even if such statutes were not regarded in the light of contracts (a), they would seem to be subject to strict construction on the same ground as grants from the Crown, to which they are analogous, are subject to it. As the latter are construed strictly against the grantee, on the ground that prerogatives, rights, and emolu- ments are conferred on the Crown for great purposes and for the public use, and are therefore not to be un- derstood as diminished by any grant beyond what it takes away by necessary and unavoidable construc- tion (b) ; so the Legislature, in granting away, in effect, the ordinary rights of the subject, should be understood as granting no more than passes by ne- cessary and unavoidable construction. The principle of strict construction is less applicable where the powers are conferred on public bodies for essentially public purposes ; as, for instance, to those given to the Metropolitan Board of Works (c). Wear Commrs. v. Adamson, 2 Gravesend, 9 CB. 774; Galloway App. 743. v. London (Mayor of), LR. 1 (a) See R. v. York. and Mid- HL. 34; Quinton » Bristol land R. Co., 1 E. & B. 858. (Mayor of), LR. 17 Eq. 524; (6) Per Lord Stowell in The Atty.-Genl. v.. Cambridge, LR. Rebeckah, 1 Rob. 230. 6 HL. 303; Richmond wv N. (c) Per Wood V.-C. in N. London R. Co., LR. 3 Ch. 681; London R. Co. v. Metrop. B. of Lyon v. Fishermongers’ Co., 1 Works, Johns. 405, 28 LJ. Ch. App. 669; Venour’s Case, 2 909. See also Pallister v ChD. 522. Digitized by Microsoft® CHAPTER XI. SECTION I.—SOME SUBORDINATE PRINCIPLES— EFFECT OF USAGE. Ir is said that the best exposition of a statute or any other document is that which it has received from contemporary authority. Optima est legum interpres consuedo (a). Contemporanea expositio est optima et fortissima in lege (b). Where this has been given by enactment or judicial decision, 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 circum- stances to which it had relation, as well as with the sense then attached to legislative expressions (d); and (a) Dig. i. 3, 37. 3 Bing. MC. 666; per Parke B. (6) 2 Inst. 11. in Doe v. Owens, 10 M. & W. (c) See ex. gr. per Hullock 521 ; per Martin B. in Curlewis B. in Booth v. Ibbotson, 1 Yo. »v Mornington, 7 E. & B. & J. 360; per Tindal C.J. in (d) Co. Litt. 8b. ; 2 Inst. 18, Bank of England v Anderson, 282; Bac, Ab, Stat. I. 5; 2 Digitized by Microsoft® USAGE. 367 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 ap- proval of it (a). It often becomes, therefore, material to inquire what has been done under an Act; this being of more or less cogency, according to circum- stances, for determining the meaning given by contem- poraneous exposition (0). It has been sometimes said, indeed, that usage is only the interpreter of an obscure law, but cannot control the language of a plain one; and that if it has put a wrong meaning on unambiguous language, it is rather an oppression of those concerned than an expo- sition of the Act, and must be corrected (c). Hawk. c. 9, s. 3; Sheppard ». Gosnold, Vaugh. 169 ; per Lord Mansfield in R. v. Varlo, Cowp. 250 ; per Lord Kenyon in Leigh v. Kent, 3 TR. 364, Blankley v. Winstanley, Id. 286, and R. w. Scott, Id. 604; per Buller J. in R. v. Wallis, 5 TR. 380; per Lord Ellenborough in Kitchen v. Bartsch, 7 East, 53 ; per Best C. J. in Stewart v. Lawton, 1 Bing. 377 ; per Lord Hardwicke in Atty.-Genl. v, Parker, 3 Atk. 576 ; per Lord Eldon in Atty.- Genl. v. Forster, 10 Ves. 338 ; per Parke B.in Jewison v. Dyson, 9M. & W. 556, and Clift » It may, Schwabe, 3 CB. 469; R. ». Mashiter, 6 A. & E. 153; R. v. Davie, Id. 374; Newcastle v, Atty.-Genl. 12 Cl & F. 419; Smith v, Lindo, 4 CB. NS. 395 ; R. v. Herford, 3 E. & E. 115; Atty.-Genl. v, Jones, 2H. & C, 347; Marshall v. Bp. of Exeter, 13 CB. NS. 820, 31 LJ. MC. 262; Montrose Peerage, 1 Macq. HL. 401. (a) See per James L.J. in The Anna, 1 PD. 259. (6) R. vw. Canterbury (Abp. of), 11 QB. 581, per Coleridge J. (c) Id.; Vaugh. 170; and per Lord Brougham in Dunbar Digitized by Microsoft® 368 INTERPRETATION OF STATUTES. indeed, well be the rule, as Lord Eldon laid it down ina 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 (a). But it seems different where the Legislature has stood by and sanctioned by its uninterposition the construc- tion 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 (5). So, a power given by the 6 Hen. 8, ¢. 6, to the judges of the Queen’s Bench, to issue a writ of proce- dendo, was held, from the course of practice, to be exercisable by a single judge at chambers(c). Although v, Roxburghe, 3 Cl. & F, 354; (a) Per Lord Eldon in Atty.- per Grose J. in R. v, Hogg, 1 Genl. v. Bristol, 2 Jac. & W. TR. 728; per Pollock C.B.‘in 321. Gwyn v. Hardwicke, 1 H, & N. (0) 2 Hawk. ¢. 9, s. 2. 53, and in Pochin ». Duncombe, (c) R. v. Scaife, 17 QB. 238. Id. 856. See Leigh », Kent, 3 TR. 362, Digitized by Microsoft® USAGE. 369 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 (a). Though the 15 Rich. 2 enacted that the Admiralty should have no jurisdiction over contracts made in the bodies of counties, seamen engaging in England have, nevertheless, always been admitted to sue for wages in that Court (b), where the remedy is easier and better than in the Common Law Courts ; on the ground, it has been said (c), that com- munis error facit jus; or rather, as was observed by Lord Kenyon (d), not communis error, but uniform and unbroken usage, facit jus. ‘‘ 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 con- ‘“‘temporaneous 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 (a) 8 Anne, c. 14; Dyer ». (c) Per Lord Holt in Clays Best, LR. 1 Ex. 152. v. Sudgrave, 1 Salk. 33. (6) Smith »v. Tilley, 1 Keb. (2) In R. v Essex, 4 TR. 112. 594. BR Digitized by Microsoft® 370) INTERPRETATION OF STATUTES. “of an old Act of Parliament” (a). If we find an uniform interpretation of a statute materially affect- ing property and perpetually recurring, and which has been adhered to without interruption, it would be impossible to introduce the precedent of dis- regarding that interpretation (b). This principle of construction would seem to be ap- plicable to an ecclesiastical case of some celebrity. The rubric of the first prayer book of Edward 6 (1549) ordered that clergymen should wear albs and copes while administerimg the Communion. ‘The second prayer book, with the 5 & 6 Ed. 6, ¢. 1, prohibited those vestments and substituted surplices. These last dresses were again ordered, by the conjoined effect of the 1 Eliz. c. 2 and the advertisements or orders issued in pursuance of it; and the former soon disappeared, the surplice becoming the sole officiating vestment until the restoration. The rubric of the prayer book of 1662, however, with the 13 & 14 Car. 2, c. 4 (which confirmed the 1 Eliz. c. 2), directed that the vestments used under the book of 1549 “should be “retained and be in use” (c); but the surplice alone (a) Gorham ». Bp. of Exeter, 15 QB. 73. See also per Cur. (c) Whether through dis- ingenuousness or negligence ? in Hebbert v. Purchas, LR. 3 PC. 650. (b) Per Lord Westbury in Morgan v. Crawshay, LR. 5 HL. 304, 320. Per DeanStanley in his Christian Institutions, p. 167. Semble, it was doneadvisedly; forthe atten- tion of thebishops had been called to the possibility of a return to Digitized by Microsoft® USAGE. 871 continued to be worn for nearly two centuries. When the right or duty of wearing the old vestments was asserted recently, the Privy Council held that the last rubric (which has the force of a Statute) did not repeal the Act and advertisements of Elizabeth, and must be read as if both were inserted in it (a). This construction, which was not reconcilable with the mean- ing of the words of the rubric, nor, perhaps, in harmony with the ordinary principles of interpretation, was, however, the construction which had been put upon it by long and general usage. Any other, indeed, it was remarked, would have been oppressive and unjust, by subjecting every clergyman who had failed to use the garments of the first book, to heavy penalties (b). The Court of Queen’s Bench was influenced in its construction of a statute of Anne by the fact that it was that which had been generally considered the true one for one hundred and sixty years(c). Even a very modern Act has received an interpretation from autho- ritative usage which could hardly have been otherwise given to it. 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 vestments as the result of the cellor Cairns by Chief Baron wording ; Hebbert v. Purchas, Kelly, 1878, p. 14. LR. 3 PC. 643 ; see sup. 33. (b) Id. 308, and Hebbert ». (a) Ridsdale v. Clifton, 2PD. Purchas, 647. 276; Kelly C.B. and two other (c) Cox v. Leigh, LR. 9 QB, members of the Council dissent- 333. ing. See letter to Lord Chan- BB2 Digitized by Microsoft® 372 INTERPRETATION OF STATUTES. offences which might be tried under a commission of oyer and terminer for London or Middlesex, was con- strued. to authorize a single judge to try ; such having been the inveterate practice under the Act (a). When the question 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 affirmative, partly, indeed, in conformity with the construction put on the analogous enactment in the 7 & 8 Geo. 4, ¢. 28, but partly also in consequence of the practice of the judges for forty years (0). In all these cases, a contrary resolution would, to use the words of Parker, C. J., (c) have been an over- turning of the justice of the nation for years past. The understanding which is accepted as authoritative on such questions, however, is not that which has been speculative merely, or floating in the minds of professional men ; it must have been acted on, and (a) R. v. Leverson, LR. 4 373. See also the Duke of Buc- QB. 394; see Stuart v. Laird, cleuch » Metrop. B. of Works, 1 Cranch, 299 ; and per James LR. 5 Ex. 251 3; Mignault ». L.J. in The Anna, 1 PD. 259. Malo, 4 PC. 123, 136. Comp. however, Clow v. Harper, (c) In R. v Bewdley, 1 P. 3 ExD. 198. . Wms, 223. (2) R. v Cutbush, LR. 2 QB. Digitized by Microsoft® USAGE. 373 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 with- out his licence, 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 (0). An universal law cannot receive different interpre- tations in different towns (c). A mere local usage cannot be invoked to construe a general enactment, even for the locality (d). A fortiori is this the case, when the local custom is manifestly at variance with the object of the Act; as, for instance, a custom for departing from the standard of weights and measures, which the Legislature plainly desires to make obli- gatory on all and everywhere (e). Usage, ancient and modern, if certain, invariable, and not unreasonable, has often been admitted to throw light on the construction of old deeds, charters, and other documents (/). (a) Per Lord Ellenboroughin 257, 35 LJ. 200. Isherwood v. Oldknow, 3 M. &S8. (c) Per Grose J. in R. v. Hogg, 396 ; per Lord Cottenham in 1 TR. 728. the Waterford Peerage, 6 Cl. & (d) R.v. Saltren, Cald. 444. F. 173; per James LJ. in Re (e) Noble v. Durell, 3 TR. Ford, 10 ChD. 370. 271. (>) Feather v. R., 6 B. & S. (f) See ex. gr. Withnell », Digitized by Microsoft® 374 INTERPRETATION OF STATUTES. SECTION II.—CONSTRUCTION IMPOSED BY STATUTE. _ When the Legislature puts a construction on an Act, a subsequent cognate enactment in the same terms would, prima facie, be understood 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, ¢. 41, to have had the effect of making such securities void even in the hands of innocent holders for value, and was modified so as to make them valid in such hands; it was considered, when the Act of Geo. 4 was repealed, and its 125th section was re-enacted in its original terms in the Bankrupt Act of 1849, that the renewed enactment ought to receive the construction which the preamble of the 5 & 6 Will. 4 had put on the earlier one (a). The expression “taxed cart,” in a recent local Act, was held to mean a vehicle which had been defined as a taxed cart by the 43 Geo. 3, c. 161 (0). Where it is gathered from a later Act, that the Gartham, 6 TR. 388; Doe v. Ries, 8 Bing. 181, per Tindal C. J. ; Wadley v. Bayliss, 5 Taunt. 752; Beaufort v. Swansea, 3 Ex. 413; Newcastle v. Bradley, 2 E. & B. 427, 23 LJ. 35. -(a) Goldsmid v, Hampton, 5 CB. NS. 94, 27 LJ. 286. (6) Williams v. Lear, LR. 7 QB. 285, overruling Purdy »v. Smith, E. & E.511. See Ward v. Beck, 13 CB. NS. 668, 32 LJ. 113, Digitized by Microsoft® CONSTRUCTION IMPOSED BY STATUTE. 875 Legislature attached a certain meaning to certain words in an earlier cognate one, this would be taken as a legislative declaration of its meaning there (a). It may be taken for granted that the Legislature is acquainted with any construction which has been put on a statute by judicial authority. Therefore, when the words of an old statute are either transcribed into, or by reference made part of a new statute, this is understood to be done with the object of adopting’ any legal interpretation which has been put on them by the Courts (b). So, the same words appearing in a subse- quent Act in pari materia, the presumption arises that they are used in the meaning which had been judicially put on them ; and unless there be something to rebut that presumption, the new statute is to be construed as the old one was (c). One reason, for instance, for holding that the 534th sect. of the Merchant Shipping Act of 1854, which limits the liability of shipowners, did not extend to foreign ships, was that the enact- ment was taken from the 53 Geo. 3, c. 159, which had received that construction judicially (d). On similar Ch. D. 706. (a) R. v Smith, 4 TR. 419; Morris v. Mellin, 6 B. & C. 454. (2) Per James, L.J. in Dale’s Case, 6 QBD. 453. (c) Mansell v. R., 8 EB. & B, 73, per Blackburn J. in Jones v. Mersey Dock Co., 11 HL. 480 ; Exp. Thorne, 3 Ch. D. 458, Exp. Attwater, 5 Ch. D, 30, and per James, L.J. in Exp. Campbell, 5 Comp. the re- marks of Byles J. in St. Losky v. Green, 9 CB. NS, 370, 30 LJ. 21; and see ex. pr. Sturgis v Darrell, 4 H. & N. 622, 28 LJ. 366, sup. p. 315. (d) Per Turner L.J. in Cope », Doherty, 4 K. ‘& J. 27 LJ. Ch. 610. Digitized by Microsoft® 376 INTERPRETATION OF STATUTES. grounds, Order 31 of the Judicature Act, 1875, r. 11, received the same construction as had been given to the earlier enactment from which it was copied (a). But an Act of Parliament does not alter the law by merely betraying an erroneous opinion of it (bd). For instance, the 7 Jac. 1, ¢. 12, which enacted that shop books should not be evidence above a year before action, did not make them evidence within the year ; though the enactment was obviously passed under the impression, not improbably confirmed by the practice of the Courts in those days, that they were admissible in evidence (c), 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 (d). An Act which provided that no more than sixpence in the pound should be paid for appraisement, in cases of distress for rent, “whether by one broker or more,” did not alter the earlier law which required that goods distrained for rent should be appraised by two brokers (e). A passage in an Act which showed that the Legis- lature assumed that a certain kind of beer might be (a) Bustros v. White, 1QBD. 690. See also Dore v, Gray, 2 423. TR. 358. (b) See ex. gr. per Ashurst J. (d) The Prices of Wine, Hob. in Dore v. Gray, 2 TR. 858; Exp. 215. Lloyd, 1 Sim. NS. 248, per (ce) Allen v. Flicker, 10 A. & Shadwell V.C. E. 640. (c) Pitman v. Maddox, 2 Salk. Digitized by Microsoft® ERROR OF FACT OR LAW IN A STATUTE. 377 lawfully sold without a licence, 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 (a). The 41 & 42 Vict. c. 77, 8. 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 considered not to afford the inference that the soil and freehold of the streets vested in all other respects (b). Earlier bankrupt Acts, in making traders having the privilege of Parliament liable to be made bankrupts, had expressly provided that they should be exempted from arrest ; but wher the Bankrupt Act of 1861 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 (c). Many enclosure Acts were passed under the once prevalent opinion that the lord of a manor had a seignorial right of sporting over every part of the manor ; whereas he had only a right of sporting over the waste, as incident to the ownership of the land (d). (a) Read v. Storey, 6 H.& fits, 1 C.P.D. 355, per Brett N. 423, 30 LJ. MC. 110; see 24 LJ. & 25 Vict. c. 21,8. 3. (c) Newcastle v. Morris, LR. (b) Coverdale v. Chorlton, 4 4 HL, 661. QBD. 116; Rolls v. St. George, (d) Pickering v. Noyes, 4 B. Southwark, 14 Ch. D. 785, 49 & C. 639. LJ. 691. See Brunton »v. Grif- Digitized by Microsoft® 378 INTERPRETATION OF STATUTES. When those Acts divested the freehold out of him, and vested it in the tenants, among whom they allotted it, but reserved to the lord all the rights of sporting which had been enjoyed by himself and his prede- cessors, a conflict of opinion arose as to whether this reservation entitled the lord to the right of shooting over the enclosures (a). The 7 & 8 Vict. c. 29, in reciting that the 9 Geo. 4, ce. 69, which punishes night poaching on “ land, “ whether open or enclosed,” had been evaded by the destruction of game, not on open and enclosed lands as described in that Act, but upon public roads and paths, and in making provision to meet the evasion, proceeded on an erroneous view of the law; for public roads and paths are “lands” within the meaning of the earlier Act; and the person who kills game while standing on them is a trespasser, not being there in the exercise of the right of way which alone justified his presence there, but for the purpose of unlawfully secking game (0). In the case of the Franconia (c), 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 (a) See Greathead v. Morley, (0) R.v, Pratt, 4 E. & B, 860; 3M. & Gr. 189; Graham v Mayhew v. Wardley, 14 CB, NS. Ewart, 7 HL. 331; Sowerby » 550. Smith, LR. 9 CP. 524, (c) R. v. Keyn, 2 Ex, D, 163. Digitized by Microsoft® ERROR OF FACT OR LAW IN A STATUTE. 379 several Acts of Parliament had assumed jurisdisction, for the purposes of navigation, revenue, and fisheries (a), over foreigners for acts done within the three mile zone; and one Statute (b) had declared that the minerals below low-water mark (in Cornwall) belonged to the Crown. The three mile zone, too, is, in interna- tional law, so far considered a part of the adjoining land, that capture within it is bad. Provisions sometimes found in Statutes enacting imperfectly or for particular cases only that which was already and more widely the law already, have occa- sionally 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. The only in- ference which a Court can draw from such super- fluous provisions, (which generally find a place in Acts to meet unfounded 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 dif- ferent 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 (c) ; (a) 59 Geo. III. c. 38, 8. 2; (Hovering). 17 & 18 Vict. c. 104, s. 527; (6) 21 & 22 Vict. c. 109. 33 & 34 Vict. c. 90, 8.52; 39 (c) Per Cur. in Mollwo v. Court & 40 Vict. c. 36, ss. 179, 235 of Wards, LR. 4, PC. 419, 437; Digitized by Microsoft® 380 INTERPRETATION OF STATUTES. and any legislation founded on such a mistake has not the effect of making that law which the Legislature erro- neously assumed to be so. Thus, when in contending that debts due by corporate 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 was that it was more reasonable to hold that the two great corporations prevailed on Par- liament to prevent all questions as to themselves by direct enactment, than to hold that Parliament by such special enactment meant to determine the ques- tion in all other cases adversely to corporations (a). A local Act which, in imposing wharfage dues for the maintenance of a harbour on certain articles, ex- pressly exempted the Crown from liability in respect of coals imported for the use of royal packets ; and the provisions in turnpike Acts (b), 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 prerogative (c). and see per Cockburn C.J. in (6) 3 Geo. 4, c. 126, 8. 32, Shrewsbury v. Scott, 6 CB. NS. and 4 Geo. 4, c. 95, 8. 24. 1, 29 LJ. 53. (c) Weymouth v. Nugent, 6 (a) London Joint Stock Bank B. & S. 22, 34 LJ. 81; West- v. Mayor of London, 1 CPD. 17. over v. Perkins, 2 E. & E. 57, Digitized by Microsoft® ERROR OF FACT OR LAW IN A STATUTE, 381 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; 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 state- ment, though some evidence of the fact alleged, would be open to contradiction (a). The 36 & 37 Vict. c. 60, s. 3, would hardly, by merely reciting that “an “accessory after the fact” is “by English law liable “to be punished as if he were the principal offender,” be understood as making so important a change of the law. In all these cases, no inference necessarily arose 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 deny them this effect (b). Such was the effect of the 4 & 5 Vict. c. 48, which enacted 28 LJ. 227; Smithett ». Blythe, 549. 1B. & Ad. 509. (6) Per Cur. in P. M. Genl. »v. (a) R. v. Haughton, 1 E.&B. Early, 12 Wheat. 148. 501, and R. v. Greene, 6 A. & E. Digitized by Microsoft® 382 INTERPRETATION OF STATUTES. that municipal corporations should be rateable in respect of their property, as though it were not cor- porate 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 rateability “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, notwithstand- ing the final words, which were considered as not conveying a different intention (a). One ground on which the Exchequer Chamber held that the attesting words, “on the true faith of a Christian,” of the abjuration oath were 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 (0). A Statute 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 (a) R. v. Oldham, LR. 3 QB. c. 4; Salomons v, Miller, 8 Ex. 474. 778. (b) 1 Geo. 1, st. 2, 10 Geo. 1, Digitized by Microsoft® WORDS CONSTRUED IN BONAM PARTEM. 383 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. SECTION IIL—-CONSTRUCTION OF WORDS IN BONAM PARTEM—EFFECT OF MULTIPLICITY OF WORDS— OF VARIATION OF LANGUAGE, 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 (b). The provision that a.judgment in the Lord Mayor’s Court, when removed to the Superior Court, shall have the same effect as a judgment of the latter, would not apply to a judgment which the in- ferior tribunal had no jurisdiction to pronounce (c). So, an Act which requires the payment of rates as a condition precedent to the exercise of the franchise would not be construed as excluding from it a person who refused to pay a rate which was illegal, though (a) P. M. Genl. v, Early, 12 590. Wheat. 136. (c) Bridge v. Branch, 1 CPD. (b) Co. Litt. 381b; 2 Inst. 633. Digitized by Microsoft® 384 INTERPRETATION OF STATUTES. so far valid that it had not been quashed or appealed against (a). A covenant by a tenant to pay all par- liamentary taxes-is construed to include only such as he may lawfully pay, but not the landlord’s property tax, which it would be illegal for him to engage to pay (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 High- way 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 obe- dience 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 (a) R. v. Windsor (Mayor of), (c) Publ. Health Act, 1875, LR. 7 QB. 908. See also Bru- 38 & 39 Vict. c. 55; Mayor of yeres v. Halcomb, 3 A. & E. Scarborough v. Rural Authority 381. of Scarborough, 1 ExD. 344. (6) Gaskell v. King, 11 East, (d) Long v. Grey, 1 Moo. NS. 165. See Edgeware Highway 411. Board v. Harrow Gas Co. LR. (e) Mill » Hawker, LR. 10 10 QB. 92; Owen» Body, 5 A. Ex. 92; comp. Dews »v. Riley, & E. 28. 11 CB. 434, 2 LM. & P. 544. Digitized by Microsoft® TAUTOLOGOUS EXPRESSIONS. 385 formed without registration, but not to those which are prohibited unless registered (a). Where words have each a separate and distinct meaning, its exact sense ought, prim4 facie, to be given to each; for the Legislature is not supposed to use words without a meaning. But the use of tauto- logous 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 (0). It has been justly remarked that, when precision is required, no safer rule can be followed than always to call the same thing by the same name(c). It is, at all events, reasonable to presume that the same mean- ing is intended for the same expression in every part of the Act (d). But the presumption is not of much weight. In the 12 & 18 Vict. c. 96, for instance, which makes any “person” in a British possession charged (a) Re Padstow, &c., Assoc. Poor Law Commrs., 6 A. & E. 20 ChD. 137, 51 LJ. 345. 68, per Lord Denman. Re (b) Teague’s Case, R. & R.33. Kirkstall Brewery, 5 ChD. 535. (c) Sir G. C. Lewis, Obs. and Comp. the judgments of Cock- Reas. in Polit., vol. i. p. 91. burn C.J. in Smith v. Brown, LR. (2) Courtauld v. Legh, LR. 4 6 QB. 729, and of Baggalay Ex. 40, per Cleasby B.; R. » L.J.in the Franconia, 2 PD.174. Ce Digitized by Microsoft® 386 INTERPRETATION OF STATUTES. with any crime at sea liable to be tried in the colony, and provides that where the offence is murder or man- slaughter of any “person” 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 jurisdiction of our Legislature, and responsible for their acts(a). In the enactment which makes it felony for anyone, “ being “married,” to “marry” again while the former mar- riage 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 (6). The case of Forth v. Chapman (c) furnishes a well-known instance of a single passage in a will receiving two ‘different interpretations, according to the nature of the property to which it was applied ; a devise of freehold and leasehold property to a person, with remainder over if he died “ without “issue,” being construed to mean, as regarded the freehold, failure of issue at any future time, but as regarded the leasehold, a failure of issue at the (a) See U. 8. v Palmer, 3 seqq. Wheat. 631; and see R. w (0) R. v Allen, LR. 1 CC. Lewis, Dears. C. & B. 182, and 367. _other cases cited, sup. p. 173 et (c) 1 P. Wms. 663. Digitized by Microsoft® VARIATION OF LANGUAGE. 887 death of the devisce. But this construction, which Lord Kenyon (a) considered hardly illustrative of the saying that lex plus laudatur quando ratione probatur, and which has since been set aside by the Wills Act(b), was attributable to the different prin- ciples of interpretation adopted by the common law and ecclesiastical courts, under whose cognizance wills of the two kinds of property respectively and exclusively fell (c). So, it seems to have been once thought that in the Act of Anne, which gave the loser at play a right to recover by action his losses above 10/., when lost at a single sitting, and gave an informer the right to recover them, and treble value besides, if the loser did not take proceedings in time, the expression “a *sinole sitting” might receive two different meanings, according as the plaintiff was the loser, or an informer : that is, that a sitting suspended for dinner should be held single and continuous when the loser sued, but be broken into two sittings when the action was brought by the informer ; on the ground that in the one case the act was remedial, and therefore entitled to a bene- ficial construction, while in the latter it was penal, and therefore was to be construed strictly (d). But un- questionably the interpreter is bound, in general, to (a) 3 TR. 146. ChD. 658, 47 LJ. 768, and the (6) 1 & 2 Vict. c. 26, s. 29. cases there cited. (c) Fearne Cont. Rem. 476. (2) Bones v, Booth, 2 W. Bl. See Wingfield v Wingfield, 9 1226. co] Digitized by Microsoft® 388 INTERPRETATION OF STATUTES. disclaim the right to assign different meanings to the same words on the ground of a supposed general inten- tion of the Legislature (a). 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 by a mere desire of improving the graces of style, and of avoiding the repeated use of the same words (b), 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 different intention. There is no difference between a “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 (a) Per Lord Denmanin R.v, and Lord Abinger in R. a. Frost, Poor Law Com. 6 A. & E. 56. 9C. & P. 106. (5) Per Blackburn J. in Had- (c) Rolle », Whyte, LR. 3 ley v. Perks, LR. 1 QB. 457, QB. 305. Digitized by Microsoft® VARIATION OF LANGUAGE. 389 bye-law (a). So, there is no material difference between “suffering” and “knowingly suffering ” per- sons to gamble in a public house (b). To “turn cattle “loose” on a public thoroughfare, which is subject to a penalty by the Police Act, 2 & 3 Vict. c. 47. s. 54, is substantially identical with “leaving cattle ” there “without a keeper,” contrary to the Highway Act, 5 & 6 Will. 4, ¢. 50,8. 74 (c); and the definition in the 6 & 7 Vict. c. 86, of a hackney carriage, as a carriage plying for hire in “any public place,” is identical in meaning with the earlier Act 1 & 2 Will. 4, c. 22, which defined it as plying for hire in any “street or road” (d). It may be questioned whether too much importance has not sometimes been attached to a variation of language (e). An Act which enacted that “it shall and may be “lawful” for a justice to hear a certain class of cases under 50/., and that penalties above that sum “shall” (f) 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 Superior (a) Hudston v, Midland R. bery, LR. 7 Ex. 369. Co. LR. 4 QB. 366. (ec) See ex. gr. R. v. South (b) 9 Geo. 4, c. 61; 35 & 36 Weald, 5 B. & S. 391; Exp. Vict. c. 94; Bosley v. Davies, 1 Jarman, 4 ChD. 835. QBD. 84. (f) 25 Geo. 3,c.51. See ex. (c) Sherborn v. Wells, 3B. & gr. Haldane v. Beauclerk, 3 Ex. S. 784, 32 LJ. MC. 179. 658; Montague v. Smith, 17 (d) Skinner v. Usher, LR. 7 QB. 688, 21 LJ. 73. QB. 423; and see Curtis ». Em- Digitized by Microsoft® 390 INTERPRETATION OF STATOTES. Courts in the former (a). 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 bank- ruptcy 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 only as against the assignees (b). 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, ¢. 39. The word “ trader,” which is used in the same and the preceding 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 bank- “rupt” (c). (2) Cates v Knight, 3 TR. 1 LL. M & P. 437. See also ~ 442, sup. 108. Myers v. Veitch, LR. 4 QB. (0). Morris » Mellin, 6B. & 649, sup. 42; R. v Tone, 1 B. C. 446, 9 D. & BR. 503; Bennett & Ad. 561. ‘y. Daniel, 10 B. & C. 500; diss. (c) Bryan v. Child 1 L.M. & Holroyd J. and Parke J. ; and Pp, 429, Rolfe B. in Bryan ». Child, Digitized by Microsoft® VARIATION OF LANGUAGE. 391 It has been seen that the change of language in the later of the two Statutes on the same subject has some- times the effect of repealing the earlier provision by implication (a). Butin those cases the change was too significant of a changed intention to save the earlier Act even from a form of repeal which is not favoured in judicial interpretation. The change would make no difference in the sense, when the omitted words of the earlier enactment were unnecessary. Thus, where the first Act, after enacting that in an “indictment” for murder the manner or means of death need not be stated, superfluously provided that the term “ indict- “ment” should include “ inquisition,” (which it did ex vitermini, without any such provision (0d) ), and a sub- sequent consolidation Act repealed and re-enacted the same enactment, omitting the unnecessary interpreta- tion clause; it was held that the word “indictment” was to be read in its full and established meaning, and not in the restricted sense in which the legislature apparently understood it in the earlier statute (c). So, the Merchant Shipping Act of 1854, which required, following an earlier Act, that the transfer of ships should be registered, but omitted the proviso of the earlier, which declared that a transfer not registered should not be valid for any purpose whatever, was (a) See ex.gr. West v. Francis, formation,” R. v. Slator, 8 QBD. and other cases cited, sup. 194. 267, 51 LJ. 246. (0) 2 Hale 155; Withipole’s (c) R. vu. Ingham, 5 B. & S, Case, Cro, Car. 134. Aliter “in- 257, 33 LJ. 183, Digitized by Microsoft® 392 INTERPRETATION OF STATUTES, construed as making such a transfer void, notwith- standing the omission of the proviso (a). The 8 & 9 Vict. c. 106, which, after repealing a similar enactment of the preceding session, made certain leases void when not made by deed, was construed as leaving the un- sealed document valid as an agreement ; although the repealed Act had an express provision to that effect, which the repealing one omitted (0). Even where the omitted words were material to the sense, but might be implied, the omission would not, in itself, be considered material ; if leading to consequences not likely to be intended. Thus, although the Bank- ruptcy Act of 1869, in making an assignment by a debtor of all his property an act of bankruptcy, omitted the words “with intent to defeat or delay his “creditors” which had been in former Acts, it was beld that no alteration had been made in the law ; for those words had been really superfluous and mis- leading (c). A statute which required witnesses before an election commission to answer self-criminating questions, and indemnified them from prosecution for the offences confessed, if the commissioners certified that they had answered the questions, was held not to (a) Liverpool Borough Bank Mollett, 16 CB. NS. 298, 33 LJ. v. Turner, 2 De G. F. & J. 502, 235. 30 LJ. 379. (c) Re Wood, LR. 7 Ch. 302. (6) Bond w Rosling, 1 B.&S. See Horn v. Ion, 4. B. & Ad. 78. 371, 30 LJ. 227 ; Parker v.Tas- See also Exp. Copeland, 2 De G. well, 2De G. & J. 559, 27 LJ. M. &G. 9. 212; per Byles J. in Tidey v. Digitized by Microsoft® VARIATION OF LANGUAGE. 393 differ substantially from an earlier one, which gave the indemnity only when it was certified that the answers were true. The Court shrank from inferring, from the mere dissimilarity of the terms of the two Acts, and though the omitted were material, the improbable intention, in the later one, to protect a witness who had answered, indeed, in point of fact, but had answered falsely or contemptuously (a). It bas, indeed, been said that, generally, statutes in pari materia ought to receive an uniform construction, notwithstanding any slight variations of phrase ; the object and intention being the same(b). And it has been frequently laid down in America, that the mere change of phraseology is not to be deemed to alter the law(c). It would be difficult, at the present time, to give countenance to the doubt whether an Act which made it felony to steal “horses,” in the plural, applied to the stealing of one horse, in conse- quence of an earlier Act having made it felony to steal “any horse” in the singular(d). The general language of a statute which repealed one of limited operation, and re-enacted its provisions in an amended form, would be construed as equally limited in opera- (a) R.v. Hulme, LR. 5 QB. I. Co, 2B. & A. 215, referring 377. See Duncan v. Tindall, 13 to the Statutes of Limitations. CB. 258; Hughes v. Morris, 2 (c) Sedg. Interp. Stat. 234, De G. M. & G. 349; McCal- 428. mont v. Rankin, Id. 403. (d) 2 Hale, 365; sup. 321. () Per Cur. in Murray v. E. Digitized by Microsoft® 394 INTERPRETATION OF STATUTES. tion, unless an intention to extend it clearly ap- peared (qa). As the same expression is presumed to be used in the same sense throughout an Act, or a series of cognate Acts, so a difference of language may be prima, facie regarded as indicative of a° difference of meaning (0). Thus, where one section of the Adulteration of Food Act imposed a penalty for selling, as unadulterated, articles of food which were adulterated ; and another provided that the seller of an article of food who, knowing that it was mixed with a foreign substance to increase its bulk or weight, did not declare the admixture to the purchaser, should be deemed to have sold an adulterated article ; the former section would reach a seller who was ignorant of the adulteration ; since, where knowledge was intended to be an element in an offence under the Act, the Legislature had con- veyed its intention in express terms (c). The 9 Geo. 4, c. 14, which admits of no acknow- ledgment of a debt to bar the Statute of Limitations unless it be signed by “the party chargeable thereby,” was held not satisfied by the signature of an agent, partly because other provisions spoke expressly of (a) Per Cur. in Brown » (c) Fitzpatrick v, Kelly, LR. 8 McLachlan, LR. 4 PC. 543. QB. 337. See Pope v Tearle (0) Per Lord TenterdeninR. and Roberts v, Egerton, LR. 9 v. Great Bolton, 8 B. & C. 74; QB. 494, 43 LJ. MC. 129 and Rickett v. Met. R. Co, LR. 2 135, HL. 207. Digitized by Microsoft® VARIATION OF LANGUAGE. 395 agents as well as of principals, and thus showed that the Legislature had not in its contemplation the maxim that qui facit per alium facit per se (a). Where an Act recited and repealed an earlier one, which had authorised two justices, “ whereof one to be “of the quorum,” to remove any person “likely to be” chargeable to the parish, and enacted that no person should be removed until “ actually” chargeable, when ‘* two justices” (omitting all mention of either being on the quorum) might remove him ; it was held that this qualification was not necessary under the later Act (0). A man who sends his servants or his dogs on the land of another, would be, in law, as much a tres- passer as if he had entered on the land in person (c) ; but an Act which imposed a penalty for committing a trespass “by entering or being” upon land, would be construed as limiting, by these superadded words, the trespass to a personal entrance (d). The 59th section of the Pilot Act, 6 Geo. 4, e. 125, which exempts from compulsory pilotage any ship whatever which “is” within the limits of the port to which she belongs, was construed as exempting from compulsory pilotage a London vessel while within the (a) Hyde v. Johnson, 2 Bing. P. 32; Dimmock v, Allenby, 7 NC. 776. Taunt. 489. (b) R. v. Llangian, 4 B. & 8. (d) R. wv Pratt, 4 KE. & B, 249, 32 LJ. MC. 225; diss. 860; and see Read v. Edwards, Cockburn C. J. 17 CB, NS. 245, (c) Baker ». Berkeley, 3 C. & Digitized by Microsoft® 396 INTERPRETATION OF STATUTES. port of London, though on a voyage from Bordeaux ; but she would not have been exempted under the 379th section of the Merchant Shipping Act of 1854, which exempts ships “ navigating” within the limits of the port to which they belong (a). In an Act (59 Geo. 3, c. 50) which provided that no person should acquire a settlement in a parish by a forty days’ residence in a tenement rented by him, unless, if a house, it was “held,” and if land, it was ‘“ occupied” by him for a year, effect was given to the two different words as expressing different ideas, by holding that a house need not be “ occupied ” for the purpose of acquir- ing a settlement (b); though, it was observed, this was probably not really intended by the Legisla- ture (c). SECTION IV.—ASSOCIATED WORDS UNDERSTOOD IN A COMMON SENSE. When two words or expressions are coupled together, one of which generically includes the other, it is (a) The Stettin, Br. & Lush. But see Genl. St. Nav. Co. v. Brit. & Colon. St. Nav. Co., LR. 4 Ex, 238. (6) R. v North Collingham, 1B. & C. 578; R. v. Great Bol- ton, 8B. & C. 71. (c) Per Best J. in R. v. N. Collingham, ubi sup. See other illustrations in Lawrence v. King, and Exp. Goreley, 4 De G. J. & 8. 477; Gale v. Laurie, 5 B. & C. 156; Cornhill v. Hudson, 8 E. & B. 429; Wiley v. Crawford, 1E. B. & E. 253. Digitized by Microsoft® ASSOCIATED WORDS OF THE SAME KIND. 397 obvious that the more general term is used in a mean- ing excluding the specific one. Though the words “cows,” “sheep,” and “ horses,” for example, standing alone, comprehend heifers, lambs, and ponies respec- tively, they would be understood as excluding them if the latter words were coupled with them (a). The word “land,” which 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 enume- rated (c). In the 43 Eliz. c. 43, which imposed a poor rate on the occupiers of “ lands,” houses, tithes and “coal-mines,” the same word was similarly limited in meaning as not including mines (d). The mention of one kind of mine shows that the Legislature under- stood the word “land,” which in law comprehends all mines, as not including any. In the same way, although the word “ person,” in (a) R. v Cooke, 2 Hast, PC. & B. 958. 617; R. v. Loom, 1 Moo. CC. (d) Lead Smelting Co. ». 160. Richardson, 3 Burr, 1341; R. (2) See ex. gr. Dewhurst v. v, Sedgley, 2 B. & Ad. 65; R. ». Fielding, 7 M. & Gr. 182; Peto Cunningham, 5 East, 478; v. West Ham, 2 BE. & KE. 144, Morgan v. Crawshay, LR. 5 HL. 28 LJ. MC. 240. 304. ’ (c) R. » Midland R. Co., 4 E. Digitized by Microsoft® 398 INTERPRETATION OF STATUTES. the abstract, includes artificial persons, that is, corpo- rations (a), the Statute of Uses, which enacts that when a “person” stands seised of tenements to the use of another “ person or body corporate,” the latter ‘ person or body ” shall be deemed to be seised 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 seisin is in a corporation (b). The same construction was given, for the same reason, to the same word in the Mortmain Act, 9 Geo. 2, © 86 (c). It is in this sense that the maxim, occasionally mis- applied in argument (d), expressio unius est exclusio alterius, finds its true application. When two or more words, susceptible of analogous meaning, are coupled together, noscuntur a sociis ; they (a) 2 Inst. 722. See, how- App. 381. ever, Weavers’ Co. v. Forest, 2 Stra. 1241; Harrison’s Case, 1 Leach, 215; St. Leonards’ ». Franklin, 3 CP. D. 337, 47 LJ. 727 ; Pharmaceutical Society v. London, &e., Supply Assoc., 5 ‘App. 867. As to foreign cor- porations, Ingate » Austrian Lloyd’s, 4 CB. NS. 704 ; Scott v. Royal Wax Co., 1 QBD. 404; Royal Mail Co. » Braham, 2 (6) Bac. Reading Stat. Uses, 43, 57. (c) Walker v. Richardson, 2 M. & W. 883. (d) Sup. 379. See Feather v. R., 6 B. & 8. 257, 39 LJ. 200; Eastern Archip. Co. v. R., 1 E. & B. 310, 23 LJ. 82, per Cres- well J. 96; London Joint Stock Bank v. M. of London, 1 CPD. 1,17. Digitized by Microsoft® ASSOCIATED WORDS OF THE SAME KIND. 399 we understood to be used in their cognate sense. They take, as it were, their colour from each other; that is, the more general is restricted to a sense analogous to the less general. The expression, for instance, of “places of public resort,” assumes a very different meaning when coupled with “roads and streets,” from that which it would have if the accompanying expres- sion was “houses” («). In an enactment respecting houses “for public refreshment, resort and entertain- “ment,’ the last word was understood, not asa theatrical or musical or other similar performance, but as some- thingcontributing to the enjoyment of the “ refresh- “ment” (b). AnA ct which exempted “ magnates and “noblemen” from tithes, was held, on this ground, not to extend to an ecclesiastical magnate, such as a dean, but to apply only to magnates of a “noble” kind (c). In the same way, the 17th section of the Statute of Frauds, which requires that contracts for the sale of “ goods, wares, and merchandise” for ten pounds or upwards, shall be in writing, and the Factors Act, 5 (a) See ex. gr. R. v, Jones, 7 RB. »v. Charlesworth, 2 L. M. & Ex. 586, 21 or MC.113; R.v P.117; Wilson v. Halifax, LR. Brown, Id. 116, and 17 QB. 3 Ex. 114. 833; Exp. Freestone, 25 LJ. (6) Muir v. Keay, LR. 10 QB. MC. 121; Davys v. Douglas,4 594. See Taylor »v. Oram, 1 H. H. & N. 180, 28 LJ. MC. 193; & C. 370; Howes w. Inland Re- Sewell v. Taylor, 29 Id. 50,7 venue Bd., 1 Ex. D. 385; R. wv. CB. NS. 160; Case v. Storey, Tucker, 2 QBD. 417. LR. 4 Ex. 319; Skinner v. (c) Warden v Dean of St. Usher, LR. 7 QB. 423. See also Paul’s, 4 Price, 65. Digitized by Microsoft® 400 INTERPRETATION OF STATUTES. & 6 Vict. c. 39, which protects certain dealings of agents entrusted with the documents of title of “goods ‘‘and merchandise,” do not extend to shares or stock in companies (a), or to the certificates of them (b). In each of these cases, the meaning of the more general word is in a measure derived from, or at least limited by, the more specific one with which it is associated. The Bankrupt Act, which makes a fraudulent “ gift, “delivery, or transfer” of property an act of bank- ruptcy, includes only such deliveries or transfers as are of the nature of a gift; that is, such only as alter the ownership of the property ; but it does not include a delivery to a bailee for safe custody (c). The receipt of “parochial relief or other alms,” which disqualifies for the municipal franchise (5 & 6 Will. 4, c. 76,s. 9), is confined to other parochial alms, and does not include alms received from a charitable institution (d). An Act (23 & 24 Vict.) which prohi- bits the sale of articles, as ‘“‘ pure or unadulterated,” which are in fact adulterated or not pure, would be understood to use the latter expression as closely analogous to the former; so that milk from which the (a) Tempest ». Kilner, 3 CB. _v. Freeman, 3 CPD. 316. 249; Bowlby ». Bell, Id. 284; (c) Cotton v James, Moo. & Humble v. Mitchell, 11 A.&E. Mal. 273 ; Bittv. Beeston, LR. 4 205 ; Heseltinev. Siggers, 1 Ex. Ex. 159. 856. (d) R. v. Lichfield, 2 QB. 693. (b) Freeman v, Appleyard, 32 See the cases collected in Har- LJ. Ex. 175. See Judic. A. 1875, rison v. Carter, 2 CPD. 26. Ord. 52, r. 2, and Bartholomew Digitized by Microsoft® ASSOCIATED WORDS OF THE SAME KIND. 401 cream had been extracted would probably not fall within the designation of ‘not pure.” The ordinary marine policy which insures against arrest of “ kings, “princes, and people,” refers, under the last word, not to any collection of persons, but to the governing power of a country not included in the other terms with which it is associated (a). In the Thames Conservancy Act, which, after empowering the conservators to license the con- struction of jetties in the river, provided that this should not take away any “right,” claim, privi- lege, franchise, or immunity to which the occu- piers 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 (b). In the first section of the Prescription Act, the expression “any right of “common” is similarly restricted by the succeeding words, ‘‘ or other profit or benefit to be taken and en- “ joyed from or upon any land,” so as not to include rights in gross, but only those usual rights of common and profit 4 prendre which are in some way appurtenant (a) Nesbitt v. Lushington, 4 3 ExD. 108; Woodward ». TR. 783. See Johnson v. Hogg, London & N. W. R. Co, Id. QBD. 22 Mar. 1883. See also 121; Williams v. Ellis, 5 QBD. Davidson »v. Burnand, LR. 4 175. CP. 120 ; Ashbury Carriage Co. (6) 20 & 21 Vic. c. exlvii. s. v. Riche, LR. 7 HL. 653; 53; Kearns v. Cordwainers’ Co., Chartered Merc. Bank v. Wilson, 6 CB. NS. 338, 28 LJ. 285. DD Digitized by Microsoft® 402 INTERPRETATION OF STATUTES. to the land, and limited to the wants of a dominant tenement (a). And in the second section of the same Act, relating to claims by custom, prescription or grant, “to any way or other easement,” the only easements included are those analogous to a right of way, that is, rights of utility and benefit, and not merely of recrea- tion and amusement (b). The County Courts Act, in making a person subject to the jurisdiction of the Court of the district within which he “dwells or car- “ries on his business,’ included under the latter expression only a personal carrying on of business, not cases where it was carried on altogether by an agent (c). The 24 Vict. c. 10, 8. 6, which gives the Admiralty jurisdiction, when the shipowner is not domiciled in England, over any claim of the owner of goods carried 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 shipowner, 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 (d). (a) 2&3 W.4,¢. 71; Shut- 10 CB. 268; 13 CB. 841. tleworth v. Le Fleming, 19 CB. NS. 687, 34 LJ. 309. (6) 2&3 W. 4, ¢ 71, Moun- sey v. Imray, 3 H. & C. 486, 34 LJ. 52, 56. See Webb ». Bird, (c) Minor v. London & N. W. R. Co. 26 LJ. CP. 39 ; Shiels ». Rait, 7 CB. 116. (@) The Dannebrog, LR. 4 A. & E. 386. Digitized by Microsoft® ASSOCIATED WORDS OF THE SAME KIND. 403 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 re- moving it to another bed; for the word “ destroying,” with which “taking” is associated, indicates that the taking which is prohibited is dishonest or mis- chievous (a). 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 similarly held to have been intended (b). 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 (c). So, where an Act punishes the “having or conveying ” anything suspected of being stolen and not satisfactorily ac- counted for, the former expression is limited by the latter, and does net, therefore, apply to the possession of a house (d). An Act which made it felony to “ cast “away or destroy” a ship was held not to apply to a case where the ship was run aground or stranded upon a rock, but was afterwards got off in a condition (a) 3 Jac. 1, «. 12; Bridger vv. Mitchell, 2 B. & S. 523, 31 v. Richardson, 2 M. & 8. 568. LJ. MC. 631; R. v. Strugnell, (0) 22 & 23 Car. 2,025; R. LR. 1 QB. 931. v. Mallinson, 2 Burr. 679. (d) 2&8 Vict. c 71; Had- (c) 12 Geo. 3, c. 61; Biggs ley v. Perks, LR. 1 QB. 444, DDQ Digitized by Microsoft® 404 INTERPRETATION OF STATUTES. capable of being refitted (a). This rule was applied to the construction of the repealed Act, 1 Vict. c. 85, which made it felony “to shoot, cut, stab, or wound ;” for the latter term was held to be restricted, by the verbs which preceded it, to injuries inflicted by an in- strument ; and consequently to bite off a finger or a nose, or to burn the face with vitriol, was not to wound within the meaning of the Act (0d). One phrase or clause, in the same way, sometimes materially limits the effect of another with which it is similarly associated. Thus, an Act which disgavelled lands “‘ to all intents and purposes,” and then went on to make them “‘descendible as lands at common law,” was held to disgavel them only for the purposes of descent (c). The section of the Annuity Act, 17 Geo. 3, ¢. 26, which excepts from the general provisions of the enactment any “ voluntary annuity granted with- “ out regard to pecuniary consideration,” was construed as using the word “ voluntary,” not in its usual legal sense, as without consideration, but as without pecuniary consideration (d). (a) De Londo’s Case, 2 East, (c) Wiseman v. Cotton, 1 P. C. 1098. Lev. 80. (6) R. v Harris, 7 C. & P. (d) Crespigny v. Wittenoom, 446; R. v, Stevens, 1 Moo. CC. 4 TR. 790. See Blake v. Atter- 409; R. v Murrow. Id. 456; soll, 2 B. & ©. 875; Evatt v. Jenning’s Case, 2 Lew. 130. Hunt, 2.E. & B, 374, Digitized by Microsoft® GENERIC FOLLOWING SPECIFIC WORDS. 405 SECTION V.—GENERIC WORDS FOLLOWING MORE SPECIFIC. It is, however, the use of a general word follow- ing (a) one or more less general terms ejusdem generis, which affords the most frequent illustration of the rule under consideration. Generi per speciem derogatur.: In the abstract, general words, like all others, receive their full and. natural meaning. Ifa right of hunting, shooting, and fishing is granted, all things generally hunted, shot, and fished are included (6). The 3 & 4 Will. 4, c. 42, s. 3, which limits the time for suing “upon any bond or other specialty,” comprehends under the last expression every kind of specialty, including a statute (c). In such cases, the general principle applies, that the terms are to receive their plain and ordinary meaning; and Courts are not at liberty to impose on them limitations not called for by the sense, or the objects or mischief of the enact- ment (d). But the general word which follows particular and specific words of the same nature as itself takes its meaning from them, and is presumed to be restricted (a) Not preceding; see ex. (c) Cork & Bandon R. Co. »v. gr. King v. George, 5 ChD. Goode, 13 CB. 836. 627. (d@) Per Cur. in U. S. (6) Jeffreys v. Evans, 19 CB. Coombes, 12 Peters, 80. NS. 264, 34 LJ. 261. Digitized by Microsoft® 406 INTERPRETATION OF STATUTES. to the same genus as those words (a): or, in other words, as comprehending only things of the same kind as those designated by them; unless, of course, there be something to show that a wider sense was intended. Thus, the Sunday Act, 29 Car. 2, c. 7, which enacts that “no tradesman, artificer, workman, labourer, or “ other person whatsoever, shall do or exercise any ‘* labour, business, or work of their ordinary callings “ upon the Lord’s Day,” has been held not to include a coach proprietor (b), or a farmer (c), or, no doubt, an attorney (cd) ; the word ‘ person” being confined to those of callings like those specified by the preceding words. For a similar reason, the 20 Geo. 2,.c. 19, which empowers justices to determine differences be- tween masters and “servants in husbandry, artificers, “ handicraftsmen,” and persons in some other specific employments, and “all other labourers,” does not in- clude a domestic servant (e), or a man employed to take care of goods seized under a writ (f); for though in the abstract they may be “labourers,” their employ- ments have no analogy with those specified. It would include, however, a man who contracted to work by (a) Sce per Willes J. in Fen- & R, 422. wick v. Schmaltz, LR. 3 CP, 315. (e) Kitchen v. Shaw, 6 A. & (0) Sandiman v. Breach, 7B. E. 729. Comp. Exp. Hughes, 23 & C. 96. LJ.MC. 138 ; Davies v. Berwick, (c) R. v Cleworth, 4B&S. 8E. &E. 549, 30 LI. MC. 84. 927; R. v Silvester, 33 LJ. (f) Bramwell v. Penneck, 7 M.C. 79'8.C, B. & C. 536. (d) Peate x, Dicken, 1 C. M. Digitized by Microsoft® GENERIC FOLLOWING SPECIFIC WORDS, 407 the piece, not by the day, provided the relation of master and servant existed (qa). The Metropolitan 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 principle, not to give that privilege to every person sued, but to give it only to persons ejusdem generis with a district surveyor ;. that is, having an official duty (b). 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 (c). 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 lighters, not steam tugs which carried neither passengers nor goods (d). But the same word would be more com- prehensive if it had followed “boats and vessels” (e). A prohibition against deducting from an artificer’s wages any part of them “ for frame rent and standing, (2) Lowther v. Radnor, 8 1 CP. 69. Comp. Newton v. East, 113; Comp. Lancaster v Ellis, 1 E. & B. 115. Greaves, 4 B. & C. 628; Exp. (c) R. v. Saunders, 9 C. & P. Johnson, 7 Dowl. 702; R. wu 79. Heywood, 1 M. & 8, 624. See (d) Read v. Ingham, 3 E. & also Gordon v. Jennings, 9 QBD. iB. 889, 23 LJ. MC. 156. 45, 51 LJ. 417. (e) Tisdell v. Coombe, 7 A. (b) Williams v. Golding, LR. & E. 788. Digitized by Microsoft® 408 INTERPRETATION OF STATUTES. “or other charges,” would not include, under the last word, a fine incurred for breach of agreement (a). The 11 Geo. 2, ¢. 19, which authorizes the. distress for rent of “ corn, grass, or other product” growing on the demised lands, 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 grow- “ing in a garden, orchard, nursery-ground, hot-house “ or conservatory ” (c). An Act which prohibited playing or betting in the streets “at or with any table or instrument of gaming,” would not include, under the last general words, half- pence used for tossing for money(d). A bye-law which imposed a penalty for causing an obstruction in the street in various specified ways, all of a tem- porary character, or otherwise causing or committing “any other obstruction, nuisance, or annoyance” in any of the streets, was held not to include, under (a) Willis ». Thorp, LR. 10 MC. 100; Smith v. Barnham, QB. 383. 1 ExD. 419. (6) Clark v. Gaskarth, 8 (d) Watson »v. Martin, 34 LJ. Taunt. 431. MC. 50, rectified by 31 & 32 (c) R. v. Hodges, 1 Moo. & Vict. c. 52,8. 3; Hirst v. Moles- M. 341. See Radnorshire Bd. bury, LR. 6 QB. 130. But ‘ee », Evans, 3 B. & 8. 400, 32 LJ. RB. », O'Connor, 15 Cox, 3. Digitized by Microsoft® GENERIC FOLLOWING SPECIFIC WORDS. 4()9 the latter words, any obstruction 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, fellmonger, slaughterer of cattle, horses, “or animals of any description, soap boiler, tallow “ melter, tripe boiler, or other noxious or offensive “ 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 (0). A bill of sale, by the yearly tenant of a dwelling- house, of all the household goods, furniture, and other household effects in and about the dwelling-house, “and all other the personal estate whatsoever,” of the assignor, was held not to pass his term or interest in the house (c). So, a will, which, after enumerating in a bequest furniture, plate, linen, china, and _pic- tures, added “all other goods, chattels, and effects “‘ which shall be in the house” at the time of the testator’s death, did not include a sum of money then in the house (d). (a) R.v Dickenson, 7 E. & CB. NS. 678; 34 LJ. CP. 109 ; B. 831, 26 LJ. MC. 204. comp. Ringer v. Cann, 3 M. & (b) 11 & 12 Vict. ¢. 63,8. 64; W. 343. Pub. Health Act, 1875, s. 112; (d) Gibbs v. Lawrence, 30 LJ. Wanstead Board v. Hill, 13CB. Ch. 170; Bridgeman v. Fitz- NS. 479. gerald, 50 LJ. Ch. 9. (c) Harrison v. Blackburn, 17 Digitized by Microsoft® 410 SEAN OF STATUTES. An Act which gives a vote to the occupier of a “house, warehouse, counting-house, shop, or other s building,” includes, in the latter term, only build- ings which, like those specifically mentioned, are of some permanence and utility, and contribute to the beneficial occupation of the land, increasing thereby its value(a). The words “tenements and heredita- ” which, in their technical sense, embrace not only every species of right connected with land, such as rents, tithe, rights of common, seignorial rights, but also offices, have been confined to habitable structures, when coupled with and following such words as “houses, warehouses, and shops” (6). Where an Act authorized the police to enter any house or room used for stage plays, and imposed a penalty for keeping any house or other “tenement” as an unlicensed theatre ; it was held that the word “tenement” was confined in meaning to something of the same cha- racter as “house” or “ and so did not in- clude a portable booth, consisting of two waggons joined together, and used as a theatre by strolling players (c). * ments, room,” (a) Powell v. Boraston, 18 CB. NS. 175, 34 LJ. 73; and see Morish v. Harris, LR. 1 CP. 155. Comp. Hodgson v. Jex, 2 ChD. 122; Chapman v. Chap- man, 4 Id. 800. (6) R. v. Manchester Water- works Co., 1 B. & C. 630; East London Waterworks Co. v. Mile End, 17 QB. 512, 21 LJ. MC. 49. See also Chelsea Water- works v. Bowley, 17 QB.- 358 ; R. v. Nevill, 8 QB. 452. (c) R. v. Midland R. Co., 10 Digitized by Microsoft® GENERIC FOLLOWING. SPECIFIC WORDS. 411 The 3 & 4 Will. 4, c. 90, s. 33, which enacted that the owners of “houses, buildings, and property other “than land,” rateable to the poor, should be rated at thrice the rate imposed on the owners of land, was held confined to that kind of “ property other than “land,” which was ejusdem generis with “houses and “buildings,” and that a railway, a canal, -with «its towing-paths, and a dry dock lined with masonry, which were its accessories, were not comprised in the expression, but were rateable as land(a). On the same principle, the Companies Act of 1862, which provides (sect. 79) that a company may be wound up by the Court of Chancery when the company passes a resolution in favour 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,” empowers the Court by these last general words to wind up only when it is just and equitable on grounds analogous to those precedingly stated (0). Of course, the restricted meaning which primarily QB. 389; Fredericks v. Howie, 1H. & C. 381, 31 LJ. MC. 249. Comp. R. v. Midland R. Co, 4 E. & B. 958; Day » Simpson, 18 CB. NS. 680, sup. p- 135. (2) R. v. Neath, LR. 6 QB. 707. (b) Spackman’s Case, 1 MeN. & G. 170; Re Anglo-Greek Steam Co., LR. 2 Eq. 1; Re Langham Rink Co., 5 ChD. 669. See under The Apportionment Act of 1870, Re.Cox’s Trusts, 9 ChD. 159. Digitized by Microsoft® 412 INTERPRETATION OF STATUTES. attaches to the general word, in such circumstances, 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 authorised to inspect articles of food deposited in “ any place” for sale, and a penalty was " imposed on persons who prevented him from entering ~ any “ slaughter-house, shop, building, market, or other “place,” where any carcase 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 subse- quent 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 the provisions “ of the Act,” would include, under the word “ build- “ing,” not only constructions of a character similar to those previously mentioned, but also dwelling- houses (5). When justices, empowered to prepare a standard for an equal county rate, were authorized for this pur- pose to direct overseers, assessors of rates, and other (a) Young v. Gratridge, LR. (6) Pearson v, Kingston, 3 H. 4 QB. 166. See also Harris». & C. 921, 35 LJ. MC. 44. See Jenns, 9 CB. NS. 152, 30 LJ. Morish v. Harris, LR. 1 CP. 155 MC. 183. 35 LJ. 101. Digitized by Microsoft® GENERIC . FOLLOWING SPECIFIC WORDS. 413 persons having the management of the rates or valua- tions, to make returns of the annual value of the property in the parish, and to require “ the said over- ‘seers, assessors, collectors, and any other persons “ 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 (a). So, where an Act imposed a rate on a variety of tenements and build- ings 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 (0). 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 ‘disguise, 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 (a) R. v. Doubleday, 3 E. & (6) R. v. Shrewsbury, 3 B. & EF. 501, 30 LJ. 99. Ad. 216. Digitized by Microsoft® 414 INTERPRETATION OF STATUTES. thing whatsoever which could in any manner facili- tate the escape of a prisoner, such as a crowbar (a). 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, : The general object of the Act, also, sometimes requires that the final generic word shall not be restricted in meaning by its predecessors. Thus, the 17 Geo. 3, c. 56, which, after reciting that stolen materials used in certain manufactures were often con- cealed in the possession of persons who had received them with guilty knowledge, and that the discovery ‘and conviction of the offenders was in consequence difficult, proceeded to authorise justices to issue search warrants for purloined materials suspected to be con- cealed “in any dwelling-house, out-house, yard, gar- “den, 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 specifi- cally enumerated were such only as are immediately adjacent to a dwelling-house (b). Though such a warehouse would probably not be usually considered as ejusdem generis with a “dwelling-house,” coupled with its enumerated dependencies, it was reasonable, having regard to the preamble and the general object (a) R. v. Payne, LR. 1 CC. (b) R. v. Edmundson, 2 E. & 97. - See also Shillitow. Thomp- E. 77, 28 LJ. MC. 213. son, 1 QBD. 12. Digitized by Microsoft® GENERIC FOLLOWING SPECIFIC WORDS. 415 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 restrited the effect, instead of promoting the object of the Act. The requirement of the Muni- cipal Corporations Act, 5 & 6 Will. 4, ¢ 76, 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 being, apparently, the identification of the voter (a). Several decisions on a recent enactment are instruc- tive examples of the application of the above-men- tioned rules, as to the effect of words of analogous meaning 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 principle 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 demoralisation of improvident persons, by open- ing places called betting-houses or offices, enacts, for (a) Per Lord Campbell and Lowther v. Bentinck, LR. 19 Crompton J. in R. vw. Spratley, Eq. 166. 6 E. & B. 263,25 LJ. 257. See Digitized by Microsoft® 416 INTERPRETATION OF STATUTES. 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 permit” it to be used for the purposes of betting, should be liable to a penalty of 501., 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 re- sorted to a certain spot under a tree in Hyde Park, and there made bets, occupied a “place” within the meaning of the Act. 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 place 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” of the place ; as that expres- sion 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 (a) Doggett v. Catterns, 17 LJ. 159. CB. NS. 669, 34 LJ. 46. (c) Shaw v. Morley, LR. 3 Ex. (b) Id. 19 CB. NS. 765, 34 = 137. Digitized by Microsoft® WORDS OF RANK 1N DESCENDING ORDER. 417 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 his proceedings, though he paid no rent and had no greater right to stand on the spot than any others of the public who were admitted (a). Tn another case a piece of enclosed land of about four acres was considered a “ place” within the Act (0). Analogous to the rules above considered is another, that when words descriptive of the rank of persons or things are used in a descending order according to rank, the general words superadded to them do not include persons or things of a higher rank or import- ance than the highest named, if there be any lower species to which they can apply. In such a case, the general word is taken not as generic, but as in- cluding only what is lower in the genus than the lowest specified. Thus, the 13 Eliz. c. 10, s. 3, which avoided conveyances by masters and fellows of colleges, deans and chapters of cathedrals, parsons, vicars, and “ others having any spiritual or ecclesiastical living,” would not include bishops (¢). The statute of Marlbridge, 52 Hen. 3, c. 29, also, (a) Bows v. Fenwick, LR. 9 9 QB. 440. CP. 339. See a similar case. (c) The Abp. of Canterbury’s Galloway v. Maries, 8 QBD. Case, 2 Rep. 46b.; Copland ». 275, 51 LJ. MC. 53. Powell, 1 Bing. 372. (6) Eastwood v, Mellor, LR. Digitized by Microsoft® 418 INTERPRETATION OF STATUTES. which gave a right of action in certain cases to “abbots, priors, and other prelates of the Church,” did not, according to Lord Coke, include bishops ; because, among other reasons, the bishop is of a higher degree than an abbot (a). But it may be presumed that there were prelates of a lower degree than abbots and priors, otherwise the generic expression would have been without effect, if so construed; in which case the rule in question would be rejected, and the general term would include the higher denomina- tious (b). Duties imposed, under the general head of “ metals,” upon “ copper, brass, pewter, and tin, and on “all other metals not enumerated,” would include only metals inferior to those named, and not fall on gold or silver, which are commonly known as precious metals(c). The 22 & 23 Car. 2, c. 25, which empowered the lords of “manors and other royalties” to grant a depu- tation 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” (d). The 2 Westm. ¢ 47, which prohibited salmon- fishing from Lady-day to St. Martin’s, in “the waters “of the Humber, Owse, Trent, Done, Arre, Derewent, “Wherfe, Nid, Yore, Swale, Tese, Tine, Eden, and (a) 2 Inst. 151, 457,478; 2 Ad. 592; per Parke B. Rep. 46b. (d) Ailesbury »v. Pattison, (b) 2 Inst. 137. Doug. 28. See also Evang 2, (c) Casher v. Holmes, 2 B.& Stevens, 4 T, R. 224, 459, Digitized by Microsoft® WORDS OF RANK IN DESCENDING ORDER. 419 “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 (q). 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 (0). It was, indeed, once thought that in the 14 Geo. 2, c. 6, which made it a capital felony to steal sheep or “other cattle,’ this last expression was “ much too “loose” to include any other cattle than those already specified, viz. sheep; but this extreme strictness of construction may perhaps be attributed to the excessive severity of the law in question (c). A statute which spoke of indictments before justices of the peace and “others having power to take indict- “ ments,” was understood, on the general ground under consideration, as not applying to the Superior Courts (d). But the 11 & 12 Vict. c. 42, which authorises 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 authorise a justice to hold an inquiry into an offence committed by a (a) 2 Inst. 478. Fletcher v Sondes, 3 Bing. 580 ; (b) Exp. Hill, 3 C. & P. 225. R v, Paty, 2 W.BI. 721; Wright (c) 1 Bl. Comm, 88. Comp. 4% Pearson, LR. 4 QB, 582. Child v, Hearne, LR. 9 Ex. 176. (d) 2 Rep. 46b. EE 2 Digitized by Microsoft® 420 INTERPRETATION OF STATUTES. 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). SECTION VI.—MEANING OF SOME PARTICULAR EXPRESSIONS. It may be convenient to mention, in conclusion, the meaning in which a few words and expressions in frequent use in statutes are, in general, understood. It has been enacted that in statutes passed after 1850, words importing the masculine gender include females, the singular includes the plural, and the plural the singular, unless the contrary is expressly provided. The word “county” means also county of a town or of a city, unless such extended meaning is expressly excluded by words. The word “land” includes mes- suages, tenements, and hereditaments, houses, and buildings of any tenure, unless there are words to exclude houses and buildings, or to restrict the mean- ing to tenements of some particular tenure; and the words “oath,” “swear,” and “ affidavit,’ include affirmation, declaration, affirming and declaring, in the case of persons by law allowed to declare or affirm, instead of swearing (0). Half a year consists of 182, and a quarter of 91, days (c). The word “month” means calendar month, (a) R. 2. Eyre, LR. 3 QB. 487. (c) Co. Litt. 135b; 5 Rep. (b) 13 & 14 Vict. ¢. 21, 8. 4. 61; 20 Jac. 166. Digitized by Microsoft® COMPUTATION OF TIME. AR 1 unless words be added showing lunar month to be in- tended (a). But “six months” may sometimes mean the period between two feast days, as between Michael- mas and Lady-day (6). 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 some- thing were included ; but when a penalty or forfeiture was involved in non-complance with a condition within the given time, the time was reckoned by in- cluding one and excluding the other of the terminal days (c). 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 the time ran, was privy or not. 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 (d) ; a fact of which he would not, as in the previous cases, necessarily be cognisant. But (a) 13 & 14 Vict. c 21, 8. 4) (d) Per Sir T. Grant in Lester (b) See Morgan v. Davies, 3 v. Garland, 15 Ves. 247; per CPD. 260. Parke B, in Young v. Higgon, 6 (ce) De Morgan, Comp. Alm. M. & W. 53; Newman »v, Hard- cited in Sir G. C. Lewis’ Obs. wicke, 3 Nev. & P, 368, and Reas. in Politics, 1, 3877. Digitized by Microsoft® 422 INTERPRETATION OF STATUTES. it has also been laid down that when a period of time allowed to a person 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 issued, both the terminal days are to be excluded (a). The notice having been given on the 28th of April, the action, it 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 computa- tion (6). Again, when so many “clear days” (ce), or so many days ‘“‘at least” (d), 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. In other cases, it would seem, the rule is to exclude the first and include the last day (e). (a) Per Alderson B. in Young P. C. 203; Migotti ». Colville, v. Higgon, 6 M. & W. 53. See 4 CPD. 233, 48 LJ. 695; Re Pellew v. Wonford, 9 B. & C. 134; Blunt v. Heslop, 3 Nev. & P. 5538, 8 A. & E. 124; R. v. West Riding, 4 B. & Ad. 685; Weeks v. Wray, LR. 3 QB. 312. (b) Freeman v: Read, 4 B. & 8. 174, 32 LJ. MC. 226. See also Webb 2. Fairmanner, 3 M. & W. 473; RB. v. Price, 8 Moo, Southam, 19 ChD. 169,51 L. J. 207. (c) Liffen v. Pitcher, 6 Dowl. NS. 767. (d) Zouch ». Empsey, 4 B. & A. 522; R.v. Salop,8 A. & E. 173. (e) See Chit. Archb. Pr. c. 9, p 173, 13th ed. Digitized by Microsoft® COMPUTATION OF TIME. 423 When a statute requires that something shall be done “forthwith,” or ‘immediately,’ or even “in- “ stantly,” 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 (0). If the statute require some act to be done periodi- cally 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 understood ‘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 beginning of the first, and once at the end of the second period (c). 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 (a) See Toms v. Wilson, 4 B. 684. & 8. 455, 32 LJ. 33 & 282; (6) Jud. A 1875, ord. 55 ; Forsdike v. Stone, LR. 3 CP. Kynaston +. Mackinder, 47 607; per Cockburn C.J. in LJ. QB: 76. See also Page v. Griffith ». Taylor, 2 CPD. 202; Pearce, 8 M. & W. 677. Comp. Massey v. Sladen, LR. 4 Ex.13; RB. v. Berks, 4 QBD. 469. R. v. Aston, 1 L. M. & P. 491. (c) Virginia & Maryland St. tomp. Exp. Sillence, 47 LJ. Nav. Co. v. U.S., Taney & Camp- Bkcy. 87 ; Gibbs v. Stead, 8 B. & — bell’s Maryland Rep. 418. C. 533; Tennant v. Bell, 9 QB. Digitized by Microsoft® 4.24 INTERPRETATION OF STATUTES. computed back from the day when the action for the penalty was brought (a). It used to be laid 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 (b) ; and in civil cases, a judicial act, such as a judgment, is taken conclusively to have been done at the first moment of the day (c). But as regards the acts of parties, including, in this expres- sion, 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 (d). Thus, they will notice the hour when a party issued a writ of summons, or filed a bill, or delivered a declaration, or the sheriff seized goods (e). A person who was keeping a dog at noon without a licence would not escape from conviction by procuring a licence at one p.m. (/). (a) Cathcart v Hardy, 2 M. & 8, 533. (b) 3 Rep. 36a; Clayton’s case, 5 Rep. 1b. (c) Shelley’s case, 1 Rep. 98 ; Wright v. Mills, 4 H. & N. 488, 28 LJ. Ex. 223. (d) Per Grove J. in Camp- bell v. Strangeways,3 CPD. 107; per Lord Mansfield in Combe v. Pitt, 3 Burr. 1434; per Patte- son J. in Chick »v Smith, 8 Dowl. 337 5 per Cur, in Edwards Where the v. Reg. 9 Ex. 628, 23 LJ. 165; Thomas v. Desanges, 2 B. & A. 286 ; Sadler v. Leigh, 4 Camp. 197; Woodland v. Fuller, 11 A. & E. 859 ; Tomlinson v. Bullock, 4 QBD. 232; Clarke v. Brad- laugh, 8 QBD. 63, 51 LJ. 1. See further Chap. xiii. s. 3. (e) 2 Lev. 141,176; and per Cur. in Edwards v. Reg., 9 Ex. 628. (f) Campbell v. Strangeways, 3 CPD. 107. Digitized by Microsoft® CONTINUING ACT. 425 title of the Crown and of the subject accrue on the same day, the title of the Crown is preferred (q). Sundays are included in computations of time, ex- cept when the time is limited to twenty-four hours, in which case the following day is allowed (6). Thus, where 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 be entered into then (c). Of course, when an Act expressly excludes Sunday, the days given for doing an act are working days only (d). 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 (e). (a) R. v. Crump, 2 Ves. 295; 2 Shaw, 481; R. v. Giles, 8 Pri. 293; Giles v. Grover, 9 Bing. 128 ; Edwards v. R., 9 Ex. 628; 23 LJ. 165. (6) Burn’s J., Tit. Lord’s Day. (c) Exp. Simpkins, 2 E. & E. 392, 29 LJ. MC. 23; Peacock v. Reg., 4 CB. NS. 264, 27 LJ. 224, (d) Pease v. Norwood, LR. 4 OP. 235; Exp. Hicks, 20 Eq. 148. So, a bankrupt remaining abroad (e) 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. & 8S. 620; Whitehouse v. Fellowes, 10 CB. NS. 765. See, however, Wallace v. Blackwell, 3 Drew. 538; Eggington v. Lichfield, 5 E. & B. 100, 24 LJ. 360. As nuisance, see cases in Battis- hill v. Reed, 18 CB. 896, 25 LJ. 290, and Whitehouse v. to continuing Digitized by Microsoft® 426 INTERPRETATION OF STATUTES. with intent to defeat his creditors commits a fresh act of bankruptcy every day (a). Distances were formerly measured by the nearest and most usual road or way (b); and this is un- doubtedly the popular manner of measuring them (c). 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 (cd). Where there is nothing in the statute to lead to one construction or to another, convenience alone is the guide in such a question (e). It is to be presumed that the Legislature intends the most convenient and certain mode of measurement, and that is unquestion- ably as the crow flies ; a straight line on a horizontal plane, between the nearest points of the two places or objects (/'). An offence made punishable, in the language of Fellowes, 10 CB. NS. 765, 30 (e) Per Erle J. Ibid. LJ. 305. Encroachment, Cog- (f) Lake v. Butler, ubi sup. ; gins v. Bennett, 2 CPD. 508. Stokes v. Grissell, 14 CB. 678, (a) Exp. Bunny, 1DeGex& 23 LJ. 141; Jewell v. Stead, 6 J. 309, 26 LJ. Bey. 83. E. & B. 350, 25 LJ. 294; R. w, (6) 1 Hawk. s. 15. Comp. 23 Saffron Walden, 9 QB. 76; LJ. CP. 144n. Duignan v. Walker, 1 Johns. (c) Per Coleridge J. in Lake 446, 28 LJ. Ch. 867; Mouflet vy. Butler, 5 E. & B, 92, 24 LJ. v. Cole, LR. 8 Ex. 32. See 973. Coulbert v. Troke, 1 QBD. 1. (d) Per Lord Campbell, Ibid. Digitized by Microsoft® DISTANCES——-PARTICULAR EXPRESSIONS. 427° our old statutes, by “judgment of life or member,” is thereby made a felony (a); but when the judgment is “forfeiture of body and goods,” or to be at the King’s will for body, lands, and goods, the offence is a misdemeanour only (b). When a “second offence” is the subject of distinct punishment, it is an offence committed after conviction of a first (c). When a case is made triable, or a penalty recoverable in “a “Court of Record,” the Supreme Court of Judicature alone, but not the Quarter Sessions, is intended (d). The punishment of “fine and ransom” is a single pecuniary penalty (e), and when to be imposed “at “the King’s pleasure,” this is to be done in his courts and by his justices (/). When imprisonment is pro- vided, immediate imprisonment is generally under- stood (g), and “forfeiture” means forfeiture to the Crown, except when it is imposed for wrongful deten- tion or dispossession; in which cases the forfeiture goes to the benefit of the party wronged (h). (a) Hawk, c. 40, s. 1. (e) 1 Inst. 127. (6) Co. Litt. 391, 3 Inst. 145. (f) 1 Hale, 375. (c) 2 Inst. 468. (g) 8 Rep. 119 ; comp. 11 & (d) 6 Rep. 19, 2 Hale, 29; 12 Vict. c. 43, 8, 25. Jenk. Cent. 228. (A) 1 Inst. 159, 11 Rep. 60. Digitized by Microsoft® CHAPTER XII. SECTION I.—IMPLIED ENACTMENTS—NECESSARY INCI- DENTS AND CONSEQUENCES. Passing from the interpretation of the language of Statutes, it remains to consider what intentions are to be attributed to the Legislature, where it has expressed none, on questions necessarily arising out of its enact- ments. Although, as already stated, the Legislature is pre- sumed to intend no alteration in the law beyond the immediate and specific purposes of the Act, these are considered as including all the incidents or conse- quences 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 the widow of a copyholder became entitled to dower by custom, it was held that she became entitled to all the incidents of dower, such as, among others, to damages, under the Statute of Merton, when deforced of her dower (b). Where trustees were appointed by (2) 1 Hale, 632, 704; 1 Gray v R., 11 Cl & F. 427. Hawk. c. 38, s. 18; Coal- (b) 20 Hen. 3; Shaw », heavers’ case, 1 Leach, 66; Thompson, 4 Rep. 320. Digitized by Microsoft® IMPLIED ENACTMENTS—LOGICAL CONSEQUENCES. 429 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 (a). When a local au- thority had statutory powers to “‘ recover ” expenses, it was thereby also impliedly empowered notonly to sue for them, but to sue in its collective designation, although not incorporated (b). The Act which gave the Admi- ralty 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 (¢). The Bankruptcy Acts, in requiring a bankrupt to answer self-criminating questions relative to his trade and affairs, made his answers subject to the general rules of the law of evidence, and consequently admissible in evidence against him, even in criminal proceedings. To hold otherwise would have been, in effect, to suppose that the Legislature, in expressly changing the law which had hitherto protected him from answering, intended also to make the further change, by mere implication, of suspending, pro tanto, the ordinary rule as regards the admissibility of self- prejudicing statements (d). (a) Exp. Newport Trustees, (c) 3 & 4 Vict. c. 65, 8. 6; 16 Sim. 346; comp. Williams The Ella Clark, Br. & L. 32, v. Lords of Admiralty, 12 CB. 32 LJ. P. M. & A. 211; The 420; 21. M. & P. 456; Rivers Two Ellens, LR. 4 PC. 161. v. Adams, 3 ExD. 361. (d) R. v. Scott, D. & B. 47, (6) Mills v. Scott, LR. 8 QB. 25 LJ. 128. 496. Digitized by Microsoft® 430 INTERPRETATION OF STATUTES. The Judgments Extension Act of 1868, which pro- vided for the execution, in Scotland and Ireland, of judgments recovered in England, was considered as having impliedly abolished the rule of procedure which required that a plaintiff residing out of the jurisdiction should give security for costs; the logical reason for the rule (which was, that if the verdict were against the plaintiff, he would not be within the reach of the process of the Court for costs), having been swept away by the enactment (a). So; the owner or master of a ship is tacitly relieved from liability for the injuries done by the ship through the acts or neglect of a pilot, where the employment of the latter is compulsory by law ; the pilot performing a duty imposed by Statute, and being neither appointed by nor under the control of the owner or master (0). An Act which simply creates a corporation, im- pliedly gives it the legal attributes of one, among which is a general power to make contracts (c) ; but no such attributes are implied when the body is created a corporation for certain purposes only, as in (a) Raeburn v. Andrews, LR. (c) See Ashbury, &e. Co, 9 QB. 118. v. Riche, LR. 7 H. L. 653. (6) Carruthers v. Sidebotham, Broughton v. Manchester Water- 4M. & 8.77; The Maria, 1 W. works, 3 B. & A. 12; Shears 2, Rob. 95; The Agricola, 2 W. Jacobs, LR. 1 CP. 53, and the Rob. 10; Lucy v. Ingram, 6 M. cases collected in S. of Ireland & W. 302; The Clan Gordon, Colliery v. Wardle, LR. 3 CP. 7 PD. 190; comp. The China, 463. 7 Wallace, 67. Digitized by Microsoft® INCIDENTS AND CONSEQUENCES. 431 the case with railway companies and companies incor- porated under the Limited Liability Acts of 1862 and 1867, which are restricted to the purposes set forth in the memorandum of association. Their power of con- tracting is similarly restricted («); and a contract entered into beyond its competency could not be rati- fied even by the unanimous assent of the shareholders, for this would be an attempt to do what the Act of Parliament prohibits (0). Where an Act provided that the costs:and expenses incident to passing it, should be paid by. the Metro- politan Board, but did not state to whom they should be paid, it was held that they were payable to the promoters only, and not to agents and other persons employed by them (c). A private Act which, after annexing a rectory to the deanery of Windsor, recited that the dean’s resi- dence 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 (d). But this extension of an enactment is confined to its strictly necessary incidents or logical consequences. (a) Id. ; and see Kast Anglian (b) Per Lord Cairns, LR. 7 R. Co. v. Eastern Counties R. H. L. 672. Co., 11 CB. 775, 21 LJ. 23; (c) Wyatt v. Metrop. B. of South Yorkshire R. Co. v. Great Works, 11 CB. NS. 744. N. R. Co, 9 Ex. 55, 22 LJ. (d) Wright v. Legge, 6 Taunt. 305. 48. Digitized by Microsoft® 432 INTERPRETATION OF STATUTES, When, for instance, a statute requires the performance of a service, it implies no provision that the person performing it shall be remunerated (a), An Act which empowered justices to discharge an apprentice from his apprenticeship, if ill-treated by his master, would not inferentially empower them to order a return of the premium ; for howeyer just it might be that such a return should be made, and convenient that it should be ordered by the tribunal which cancelled the in- denture, such a power was not the logical or neces- sary incident or result of that which was expressly conferred (b). Although the 33 & 34 Vict. ¢. 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, “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). (a) Per Lord Abinger in 69; East v. Pell, 4 M. & W. Jones v. Carmarthen, 8M.&W. 665. 605; R. vu Hull, 2 BE. & B. (c) Exp. Holland, LR. 9 Ch. 182; R. v. Allday, 7 Id. 799. 307; Exp. Jones, 12 ChD. 484. See also Alresford ». Scott, 7 See Guthrie v.: Fisk, 3 B. & C. QBD. 210. 178 ; Re Frankland, LR. 8 QB. (6) R. v. Vandeleer, 1 Stra. 18. Digitized by Microsoft® IMPLIED POWERS AND DUTIES. 433 SECTION II.—IMPLIED POWERS AND OBLIGATIONS. Where an 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 juridictio data est, ea quoque concessa esse videntur, sine quibus jurisdictio expli- cari non potuit (a). Thus, an Act which empowers justices to require persons to take an oath as special constables, or gives them jurisdiction to inquire into an offence, impliedly empowers them to apprehend the persons who unlawfully fail to attend before them for those purposes ; otherwise the jurisdiction could not be effectually exercised (2). So, where an inferior Court is empowered to grant an injunction, the power of punishing disobedience to it by commitment is im- pliedly conveyed by the enactment ; for the power would be useless if it could not be enforced (c). And it is laid down that where a statute empowers a justice to bind a person over, or to cause him to do some- thing, and the person, in his presence, refuses, the justice has impliedly authority to commit him to jail till he complies (d). An Act which authorizes the (a) Dig. 2, 1, 2. 430. See also Hall v. Planner, (4) 1 Inst. 235 ; 2 Inst. 306; 1 Saund. 11 ; Burton v. Henson, Oath before justices, 12 Rep. 10M. & W. 105. 131; 2 Hawk. c. 13, 8s. 15; (c) Exp. Martin, 4 QBD. Bane v. Methuen, 2 Bing. 63. 212. Comp. R. ». Twyford, 5 A. & E. (d) 2 Hawk. c. 16, 8. 2. Fr Digitized by Microsoft® 134 INTERPRETATION OF STATUTES, making of bye laws impliedly authorizes the annexa- tion of a reasonable pecuniary penalty for their in- fringement, recoverable (in the absence of other pro- vision) by action or distress (a). The enactment that at the election of poor law guardians the votes should be taken and returned as the commissioners should direct, impliedly authorized the appointment of a returning officer (b). An Act which, after empowering the parishioners to elect an assistant overseer, provided that this power should cease where an assistant overseer had been appointed by the Poor Law Commissioners, (who had previously no power to make such an appointment), and while their order of appointment remained in force, would seem to have given the Commissioners that power by implication (c). Where a judgment was recovered in a county court against its bailiff, a power to appoint a special bailiff to levy execution in that case was held to be necessarily incident to the Court (d). So it was held that when a duty was imposed on a county, and costs necessarily arose in questioning the propriety of an act done to enforce that duty—as, for instance, in disputing the liability of a fine imposed on the county for neglect to repair the county jail— (a) 5 Rep. 63a; 2 Kyd, (c) R. v Greene, 17 QB. 793, Corp. 156; Hall v. Nixon, LR. 21 LJ.MC. 137. See Cullen 2, 10 QB. 152; R. v. Sankey, 3 Trimble, LR. 7 QB. 416, sup. QBD. 379. p. 159. (6) 4&5 W. 4, ¢. 76, 8. 40; (d) Bellamy v. Hoyle, LR. 10 R. v. Oldham, 10 QB. 700. Ex, 220, Digitized by Microsoft® IMPLIED POWERS AND DUTIES. 435 the justices, who have the superintendence of the county purse, had impliedly a right to defray such costs out of it (a). In the same way, when powers, privileges, or pro- perty are granted by statute, everything indispensable to their exercise or enjoyment is impliedly granted also, as it would be in a grant between private per- sons. Thus, as by a private grant or reservation of trees, the power of entering on the land where they stand, and of cutting them down and carrying them away, is impliedly given or reserved ; and by the grant of mines, the power to dig them (b) ; so under a Par- liamentary authority to build a bridge on a strangev’s land, the grantee tacitly acquires the right of erecting, on the land, the temporary scaffolding which is essential to the execution of the work (c). So, 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 ex- emption from responsibility for any damage arising from the use, without negligence; as, for instance, when haystacks are fired by locomotive engines plying on railways (d). So trustees and official persons who (a) R. v. Essex, 4 TR. 591, (c)' The Clarence’ R. Co. v. per Lord Kenyon. See Atty.- The G. N. of England R. Co., Genl. v. Brecon, 10 ChD. 204. 13 M. & W. 721. See also Re (b) Shep. Touchst. 89 ; Roll. Dudley, 8 QBD. 86. Ab. Incidents, A. (7) BR. uv. Pease, 4 B. & Ad. FF 2 Digitized by Microsoft® OF STATUTES. 436 INTERPRETATION are authorised to execute a work, such as to raise a road, to lower a hill, or to make a drain, are impliedly authorised, if necessary for the due execution of their task, to prejudice the rights, or injure the property of third persons (a). But when an Act confers such powers, it also im- pliedly 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 (b). A power, for in- stance, to establish asylums for the sick would not authorise the establishment of a small-pox hospital in such a place or circumstances as to be a common nuisance (c). 30; Vaughan v. Taff Valley R. Co, 5 H. & N. 679; 29 LJ. 247; Freemantle v. London & N. W. R. Co., 10 CB. NS. 89 ; 31 LJ. 12; Blyth ». Birming- ham Waterworks Co., 7 Ex. 212; Dunn »w Birmingham Canal Co., LR. 8 QB. 42; Ham- mersmith R. Co. v. Brand, LR. 4H. L. 171 ; Cracknell v. Thel- ford, LR. 4 CP. 629 ; Geddis ». Bann Com. 3 App. 455; per Lord Blackburn. (a) Per Williams, J., in White- house v. Fellowes, 10 CB. NS. 780; Sutton v, Clarke, 6 Taunt. 34; Stainton v. Woolrych, 23 Beay. 225; 26 LJ. 300. (b) Jones v. Bird, 5 B. & A. 837; Grocers’ Co. v. Donne, 3 Bing. NC. 34; Clothier v. Web- ster, 12 CB. NS. 750; 31 LJ. 316 ; Lawrence v. G. N. R. Co. 16 QB. 643; Collier v. Middle Level Commrs., LR. 4 CP. 279; Geddis v. Bann Com. 3 App. 430. (c) Metrop. Poor Act, 1867, s. 5; Metrop. Asylum District v. Hill, 6 App. 193; 50 LJ. Digitized by Microsoft® IMPLIED POWERS AND DUTIES. 437 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 (a) ; 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 nght to lateral support from the land, if it was possible to construct an adequate sewer inde- pendent of such support (b). An Act of Parliament does not, by authorising persons to repair and cleanse a navigable river, impliedly authorise them to dig, in the bed of the river, the soil of which is vested in the owner of a several fishery, a canal or passage to a new wharf, for the convenience of their barges, to the prejudice of the fishery (c). Authority given to make a railway for the passage of waggons, engines and other carriages, does not impliedly give power to use locomotives on it; as other means of traction may be employed. Therefore, if injury arises from the use of a locomotive, under such circumstances, the general rule of law applies, that a person who uses a dangerous thing is liable to an action for any injury which he does by it (d). Ordinary railway, gas, and mining (a) Finch’s Disc. on Law, 63; See Roderick v. Aston Local Gearns v. Baker, LR. 10 Ch. Board, 5 ChD. 330. 355. (c) Partheriche 7. Mason, 2 (6) Metrop. Board v. Metrop. Chit. 658. Railway Co., LR. 4 CP. 192. (d) Jones v. Festiniog R. Co., Digitized by Microsoft® 438 INTERPRETATION OF STATUTES. companies, on this principle, have no implied power to draw, accept, or indorse bills or notes; for this is not essential to their business (a). So, it has been held that a colonial legislative body has, impliedly granted to it by the Act or charter which constitutes it, the power of removing and keeping excluded from the chamber where it carries on its deliberations, all persons who interrupt its proceedings; for such a power is absolutely indispensable for the proper exercise of its functions. But a power of punishing such offenders for their contempt of its authority is not necessary for th's purpose, and so is not granted by implication (0). 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 {c). So, where a statute prohibited bathing on the shore except.from bathing machines, which the local autho- rities were empowered to license, that power did not entitle a licensed person to place a bathing machine Moo. 347 ; Re Brown, 5 B. & S. 280, 33 LJ. 193; Doyle », Fal- coner, 4 Moo. NS. 219. Sec Spilsbury v. Micklethwaite, 1 Taunt. 146. LR. 3 QB. 733; R. v. Bradford Navigation, 6 B. & S. 631, 34 LJ. 191; Powell v. Fall, 5 QBD. 597, 49 LJ. 428. See Fletcher vw. Rylands, 3 HL. 330. (a) Bateman v. Mid Wales R. Co., LR. 1 CP. 499, and tlic cases collected there. (b) Kieily v. Carson, 4 Moo. 163; Fenton v, Hampton, 11 (c) Wadmore v. Dear, LR. 7 CP. 212; Tipper v. Nichols, 18 CB. NS. 121, 34 LJ. 61; Mul- liner v. Midland Ry. Co., 11 ChD. 611, 48 LJ. 258. Digitized by Microsoft® INPLIED POWERS AND LIABILITIES, 439 on the shore without the consent of the owner of the shore (a). 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 (b). 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 im- posing on the latter the obligation of giving notice of the needed repair to the party liable (c). A public body, authorised to make a bridge or tow- path and to take tolls for its use, is impliedly bound to keep it in proper repair, as long as it takes the tolls and invites 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 (d), If statutory authority is given to persons, primarily for their own benefit and profit, rather than for any (a) Mace v. Philcox, 15 CB. Brown z, G. E. R. Co., 2 QBD. Ns. 600, 33 LJ, 124. 406. (b) Gray v. Pullen, 5 B. &S. (d) Winch v. Conservators of 970, 34 LJ. 265. the Thames, LR. 7 CP. 458, 9 (c) London & 8. E. R. Co.» CP. 378; Nicholl v. Allen, 1 B. Flower, 1 CPD. 77; Makin v. & S. 934, 31 LJ. 283, 431; Watkinson, LR. 6 Hx. 25. See Forbes v. Leé Cons. Board, 4 Scaltock v. Harston, 1CPD.106; ExD. 216. Digitized by Microsoft® 440 INTERPRETATION OF STATUTES. advantage which the public may incidentally derive, such as to cut 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 (¢). Another duty which would also be impliedly imposed on them by such an enact- ment 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 (0). 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 (¢). And this implied obligation would not be excluded on the principle expressum facit cessare tacitum, by the fact that certain duties are expressly imposed by statute on railway companies who make such crossings ; ex. gr., to erect and maintain gates where the public road crosses the railway, and to employ men to open and shut them, and to keep them closed except when (a) R. v. Kent, 13 East, 220; fordshire R. Co., 29 LJ. MC. R. v. Lindsay, 14 East, 317; R. 151. v. Kerrison, 3 M. & 8S. 526; R. (6) Manley v. St. Helen’s Co. v. Ely, 15 QB. 827 ; North Staf- 2H. & N. 840, 27 LJ. 159. fordshire R. Co. v. Dale, 8 E. & (c) Oliver » N. E.R. Co. B. 836; Leach «. North Staf- LR. 9 QB. 409. Digitized by Microsoft® IMPLIED POWERS AND DUTIES. 441 carriages have to cross (a). So, notwithstanding all such express provisions, the company would be bound, by implication, to prevent all passage along the portion of the highway thus intersected, when it was dangerous to cross (b). 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 demo- lition (c). Sometimes the express imposition of one duty im- pliedly imposes another. Thus, when it was enacted that no licence should be refused except on one or more of four specified grounds, the obligation was im- posed by implication on the justices, of stating on which of the specified grounds they based their refusal (d). The Ballot Act of 1872, which imposes, in express terms, certain specific duties on the presid- ing 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 (e). (a) Id.; G. E. RB. Co. v. Wan- (d) 32 & 33 Vict. c. 27, 8.8; less, LR. 7 HL. 12. R..v. Sykes, 1 QBD. 52; Exp. (6) Lunt v London & N. W. Smith, 3 QBD. 374. R. Co., LR. 1 QB. 277. (e) Pickering v. James, LR. (c) Thompson »v. Hill, LR. 5 8 CP. 489. CP. 564. Digitized by Microsoft® 442 INTERPRETATION OF STATUTES. A duty or right imposed or given to one, may also cast by implication a corresponding burthen on another, as in the case of the proviso in the Commis- sion of the Peace, requiring the Quarter Sessions not to give judgment in cases of difficulty unless in the presence of one of the Judges of Assize; which im- pliedly 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 Commissioners, was considered as requiring the Commissioners to give their approval in a case where the grant was made before the Act was passed (0). The grant of a privilege or of property to onc, some- times impliedly gives a right to another person. Thus, 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 con- sidered that the Act would otherwise be nugatory (c). 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 (a) Per Cur. in R. v. Chan- (ce) Perring v. Trail, 18 Eq. trell, LR. 10 QB. 587. 88 ; Comp. Nethersoll v. Indig. (6) Moon v Church, 1 ChD. Blind, LR. 11 Eq. 1. 447, Digitized by Microsoft® IMPLIED JUDICIAL DUTIES. . 443 reference, would not give by implication to another company the correlative power to sell any of those lands to it (a). Again, in giving judicial powers to affect prejudici- ally 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 in- stance, as that which requires that, before its exercise, the person sought to be prejudicially affected shall have an opportunity of defending himself (0). On this ground, under the 4 & 5 W. 4, c. 76, which authorises justices “at their just and proper “discretion ” to order out-door relief to an aged or infirm pauper who is unable to work, no such order could be made without summoning those on whom the order was to be made (c). &0, where an Act autho- rised justices, where it appeared that the appointment of special constables had been occasioned by the behaviour of persons employed by railway or other companies, in executing public works, to make an order (u) R. v. 8. Wales R. Co., 14 burn v. Barnes, LR. 2 CP. 384 ; QB. 902. Re Pollard, LR. 2 PC. 106; R. (6) Bagg’s Case, 11 Rep. 99; v. Jenkins, 3 B. & 8. 116, 32 LJ. R. v. Univ. of Cambridge, Stra. MC. 1. 557; Emerson v. Newfound- (c) R. v. Totnes Union, 7 land, 8 Moo. PC. 157; Thor- QB. 690. Digitized by Microsoft® 444 INTERPRETATION OF STATUTES. on the treasurer of the company to pay the special constables for their services, which order, if allowed by a Secretary of State, should be binding on the com- pany ; it was held that no such order could be validly made without giving the company notice, and an opportunity of being heard against it (a). So, where a Colonial enactment authorised the Governor to de- clare a lease forfeited, if it was proved to the satisfaction of a Commissioner that the lessee had failed to reside on the demised land, the Commissioner could not law- fully be satisfied without summoning the lessee and holding a judicial inquiry (0). The Metropolitan Local Management Act, which re- quires that before the foundations of a building are laid, a seven days’ notice shall be given to the district board, and authorises that board to demolish any building erected without such notice, was construed as impliedly imposing on the board the condition of giving the presumed defaulter a hearing, before proceeding to the demolition of his building ; and a district board, which had confined itself to the letter of the Act, and had demolished a building respecting which it had received no notice, without first calling on the owner to show cause against its doing so, was held liable in an action, as a wrong doer (c). A statute which required (a) 1 & 2 Vict. c. 80; RB. v. (c) 18 & 19 Vict. c. 120; Cheshire Lines Committee, LR. Cooper v. Wandsworth Board, 14 8 QB. 344. CB. NS. 180, 32 LJ. 185. (b) Smith v. R., 3 App. 614. Digitized by Microsoft® IMPLIED JUDICIAL DUTIES. 445 justices to 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 (c). An Act which empowered a bishop, when it appeared to his satisfaction, either from his own knowledge or from proof laid before him, that the duties of a benefice were inadequately performed, to require the incumbent to appoint and pay a curate; and if he failed to comply within three months, himself to make the appointment and to fix the stipend; was considered as importing the same condition of giving a hearing before exercising the power; and therefore as not authorising the bishop, even when acting on his own personal knowledge, to issue the requisition (which was in the nature of a judgment), without having given the holder of the benefice an opportunity of being heard (0). A power to remove a person from his office or em- ployment for lawful cause only, would, on the same (a) See Harper v. Carr, 7 B. in Re Hammersmith Rent TR. 270; R. v. Hughes, 3 A. Charge, 4 Ex. 87. See Bonaker & E, 425; Painter v. Liverpool v. Evans, 16 QB. 162 ; Bartlett Gas Co., Id. 433. v. Kirkwood, 2 E. & B. 771 (b) Capel v. Child, 2 Cr. & J. 23 LJ. 9. 558; questioned by Alderson, Digitized by Microsoft® 446 INTERPRETATION OF STATUTES. principle, involve the condition that it was to be exercisable only after a due hearing, or the oppor- tunity of being heard, had been given to the person proposed to be removed (a). But it would, of course, be different if the person was removable arbitrarily, and without any cause being assigned (0). 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 (c). Under the provision of the first County Court Act (8 & 9 Vict. c. 95), which empowered the Judge 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 be committed, was invalid ; for it made the debtor liable to imprisonment for not mak- ing a payment at a future time, without then having (a) R. v. Smith, 5 QB. 614. terbury, 1 E. & E. 545, 28 LJ. (6) Exp. Teather, 1 L. M.& 154. See other instances, Re P.7; R. v Darlington School, Phillips’ Charity, 9 Jur. 959; 6 QB. 682; Exp. Sandys, 4 B. #e Fremington School, 10 Jur. & Ad. 863. 512; Davenport » R., L. R. 3 (c) R. v. Archbishop of Can- App. 115. Digitized by Microsoft® IMPLIED JUDICIAL DUTIES. . 47 an opportunity of defending himself. As the language of the Act was not inconsistent with the general prin- ciple 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 commitment (a). It would be different where the statute gave a power of immediate commitment in default of im- mediate 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 preju- dice had his opportunity of defence before the sheriff (c). So, where an Act authorised justices to inquire and adjudge the settlement of a pauper lunatic, (2) See Kinning’s Case, 10 QB. 4; Lovering v. Dawson, QB. 730, 4 CB. 507; Buchanan LR. 10 CP. 711. v. Kinning, 8 CB. 271, 2 L. M. () Arnott v. Dimsdale, 2 E, & P. 526; Abley v. Dale, 10 & B. 580, 22 LJ. MC. 161. CB. 62,1 L. M. & P. 626. See (c) Re Hammersmith Rent also Hesketh v. Atherton, LR. 9 Charge, 4 Ex. 87, 7 D. & L. 41. Digitized by Microsoft® 448 INTERPRETATION OF STATUTES. and to make an order on his parish to pay for his maintenance, and empowered the parish to appeal against any such order; it was held that the order might be made without giving the parish sought to be affected notice of the intended inquiries (a). And an application to the Court by a trustee in bankruptcy for leave to prosecute the bankrupt for an offence under the Bankruptcy Act is properly made ex parte and without notice to the bankrupt (0). An Act which empowers two or more justices, or other persons (c), to do any act of a judicial, as distin- guished from a ministerial nature, impliedly requires that they should all be personally present and acting together in its performance, whether to hear the evi- dence, or to view when they are to act on personal inspection (d); to consult together, and form their judgment (e); and in the case of justices authorised (a) Exp. Monkleigh, 5 D. & ware, 3 TR. 380; R. ». Forrest, L. 404, 17 LJ. MC. Id. 38; R. v Stotfold, 4 TR. (®) Exp. Marsden, 2 ChD. 596; R. v Winwick, 8 TR. 786. 454; R. v. Great Marlow, 2 (c) So, directors of companies, Last, 244 ; Battye v. Gresley, 8 D’Arcy v. Tamar R. Co., LR.2 Id. 319; Grindlay ». Barker, Ex. 158; Cook v. Ward, 2 CPD. 1 B. & P. 229; Cook ». Love- 255. land, 2 Id. 31; R. v. Mills, 2 (d) R. v. Cambridge, 4 A.& B. & Ad. 587; R. » Totnes, E. 111. 11 QB. 80; R. » Aldborough, (e) Billings 2 Prince, 2 W. 13 QB. 190. Bl. 1017; R. v. Hamstall Red- Digitized by Microsoft® IMPLIED JUDICIAL DUTIES. 449 to try offences summarily, to abstain from exercising their jurisdiction when it appears that a bona fide claim of right or title is set up (a). When the act to be performed is ministerial, it is not necessary , on general principles, that the persons authorised to do it should meet together for the purpose ; and the statute which gave such authority would therefore not be construed as impliedly requiring it (0). When a new jurisdiction is given to an existing -Court to deal with new matter in a different mode and a different procedure, it is understood, unless the contrary be expressed or plainly implied, to be intended to be exercised according to the general inherent powers of the Court (c). 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 exercise it, when the occasion for it arises (d). This implied obligation is usually said to modify the language creating the power, when per-- missive, by making it imperative ; but it seems to be a matter of implied enactment, rather than of verbal interpretation. (a) Per Blackburn J., in 367. White v. Feast, LR. 7 QB. 358. (c) Dale’s Case, 6 QBD. 450. (b) Re Hopper, LR. 2 QB. (d) Sup., pp. 286—303. Digitized by Microsoft® 450 INTERPRETATION OF STATUTES. SECTION III.—IMPERATIVE OR DIRECTORY. 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 inten- tion is to be attributed by inference to the Legislature. Where, indeed, the whole aim and object of the Legis- lature would be plainly defeated if the command to do the thing in a particular manner did not imply a pro- hibition to do it in any other, no doubt can be enter- tained as to the intention. The enactment, for instance, of the Metropolitan Building Act (a), that the walls of buildings shall be constructed of brick, stone, or other incombustible material, though containing no prohibitory words, obviously prohibits by implication and makes illegal their construction with any other (0). So, the directions in the rubrics of the prayer-book for the performance of the rites and ceremonies of the Church, are equally imperative in prohibiting all omissions and additions (c). Again, where compli- ance is made, in terms, a condition precedent, to the validity or legality of what is done; as when, for example, the deed of a married woman was to take effect “when” the certificate of her acknowledgment (a) 18 & 19 Vict. c. 122, 8. 12. (c) Westerton v. Liddell, re- (6) Stevens v, Gourley, 7 CB. ported by Moore, p. 187; Martin NS. 99, 29 LJ. 1. v. Maconochie, LR. 2 PC. 365. Digitized by Microsoft® IMPERATIVE OR DIRECTORY. 451 of it was filed (a); or where it was provided that no appeal should be entertained “unless” certain rules were complied with (b); the neglect of the statutory requisites would obviously be fatal. But the reports are full of cases without any such indications of intention ; in some of which the condi- tions, forms, or other attendant circumstances pre- scribed by the statute have been regarded as essential to the act or thing 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 liabity to a penalty, if any were imposed, for breach of the enactment. The propriety, indeed, of ever treating the provisions of any statute in the latter manner has been sometimes questioned (c); but it is justifiable in principle as well as abundantly established by numerous authorities. It has been said that no rule can be laid down for determining whether the command is to be considered as a mere direction or instruction involving no invali- dating consequence in its disregard, or as imperative, with an implied nullification for disobedience, beyond the fundamental one that it depends on the scope and (a) 3& 4 W.4,¢. 74,8. 85; Dickinson, 51 LJ. ChD. 736, Jolly v. Hancock, 7 Ex. 820, 22 (c) Per Martin B. in Bowman LJ. 38. v. Blyth, 7 E. & B. 47, 27 LJ. 22 ; (b) 32 & 33 Vict.c. 71; Re Sedgwickon Interp. of Stats, 375, Ga2 « Digitized by Microsoft® 452 INTERPRETATION OF STATUTES. object of the enactment (a). It may, perhaps, be found generally correct to say that nullification is the natural and usual consequence of disobedience ; but the ques- tion is in the main governed by considerations of con- venience and justice(b), and when that result would involve general inconvenience or injustice to innocent persons, or advantage to those guilty of the neglect, without promoting the real aim and object of the enactment, such an intention is not to be attributed to the Legislature. In the first place, a strong line of distinction may be drawn between cases where the prescrip- tions of the Act affect the performance of a duty, and where they relate to a privilege or power(c). Where powers or rights are granted, with a direction that cer- tain regulations or formalities shall be complied with, it seems neither unjust nor inconvenient to exact a rigorous observance of them as essential to the acquisi- tion of the right or authority conferred ; and it is therefore probable that such was the intention of the Legislature. But when a public duty is imposed, and the statute requires that it shall be performed in a certain manner, or within a certain time, or under other specified conditions, such prescriptions may well (a) Per Lord Campbell in 211. Liverpool Borough Bank ». (b) See per Lush J. in NR. ». Turner, 2 De G. F. & J. 502, 30 = Ingall, 2 QBD. 208. LJ. 379 ; per Lord Penzance in (c) See per Denman J. in Howard v. Boddington, 2 PD. Caldow ». Pixell, 2 CPD. 506. Digitized by Microsoft® IMPERATIVE OR DIRECTORY. 453 be regarded as intended to be directory only, when injustice or inconvenience to others who have no con- trol over those exercising the duty, would result, if such requirements were essential and imperative. Taking the former class of cases, it seems that when a statute confers a right, privilege, or immunity, the regulations, forms, or conditions which it prescribes for its acquisition are imperative, in the sense that non-observance of any of them is fatal. Thus, where an Act gave to the designers of prints the sole right of printing them for fourteen years after the day of publication, adding, “which (day) shall be truly engraved, with the name of the proprietor, on each plate ;” it was held that the neglect to comply with this provision was fatal to the copyright (a). So, under the enactment that no proprietor of a copyright should be entitled to sue for its infringement, unless he had made an entry at Stationers’ Hall of the title and time of the first publication of the book, and the name and abode of the publisher, it was held that a suit was not maintainable, where the day of publication was not stated truly, or only the month was stated; or the publishers were not described correctly, that is, neither by the style of the firm, nor by the names of the indivi- dual partners(b). The innkeeper whose common law (a) 8 Geo. 2, ¢.13; Newton Routledge, 33 LJ. Ch. 725; v. Cowie, 4 Bing. 234 ; Brooksv. Mathieson v. Harrod, LR. 7 Eq. Cock, 3 A. & E. 141; Avanzov. 270; Henderson v. Maxwell, 5 Mudie, 10 Ex. 203. ChD. 892, 46 LJ. 891. (b) 5 & 6 Vict. c. 45; Low »v. Digitized by Microsoft® 454 INTERPRETATION OF STATUTES. liability for the goods of his guests is limited, if he posts up a notice as required by the 26 & 27 Vict. c. 41, does not obtain the exoneration, if his notice is inaccurate in any material particular(a). The Act which, in authorizing the confinement of lunatics, pro- hibited their reception in asylums without medical cer- tificates in a given form, setting forth several particulars, and among them, the street and number of the house where the supposed lunatic was examined, made a strict compliance with those provisions imperative ; so that a certificate which omitted the street and number of the house where the examination took place, was held insufficient to justify the detention of the lunatic (0). Where it was enacted that a person who objected to a voter’s qualification might be heard in support of his objection, if he had given notice to the voter ; and it was provided that, besides the ordinary way of serving it, the notice might be sent by post, addressed to his place of abode “as described” in the list of voters prepared by the clerk of the peace ; it was held that to send by post a notice, not to the address so given, which was incorrect, but to the true address, was not a compliance with the Act, and therefore that the objector could not be heard on mere proof of posting the notice (c). If he had (a) Spicer v. Bacon, 2 ExD. (6) 16 &17 Vict. c. 96; BR.» 463. See Gregson v. Potter, 4 Pinder, 24 LJ. QB. 148. Comp. ExD. 142; Mather v. Brown, 1 re Shuttleworth, 9 QB. 651. CPD. 596. (c) Noseworthy v. Buckland, Digitized by Microsoft® IMPERATIVE OR DIRECTORY. 455 directed the notice to the wrong address given in the list, he would have been heard ; for although the notice might not have reached the voter objected to, the Act would have been complied with. The Merchant Shipping Act of 1854, s. 55, enacting that ships shall be transferred by an instrument in a form containing certain particulars, and executed with certain formalities, and registered, was deemed to render an unregistered mortgage of a ship in- operative (a) ; although there was no express declara- tion, as in the earlier and repealed Act in pari materia, that transfers in any other form should be null and void (b). So, it was held in one case, that the enact- ments of the Companies Clauses Consolidation Act of 1845, which prescribe the form in which contracts “may” be entered into on behalf of companies, were imperative (c); but in another it was thought that, being in the affirmative, they did not take away pre- existing rights and powers, and that a contract not complying with its provisions, but partly performed (d) LR. 9 CP. 233. See Smith v See The Andalusian, 3 PD. 182 ; Huggett, 11 CB. NS. 55,31 LJ. Chasteanneuf ». Capeyrou, 7 41, App. 127, 51 LJ. PC. 37. (a) Per Lord Campbell in the (6) Comp. Le Feuvre v. Mil- Liverpool Borough Bank v. ler, 8 E. & B. 321 inf. 466. — Turner, 2 G.F. & J. 502, 30 LJ. (c) Leominster Canal Co. », 379. Comp. Ward v. Beck, 13 Shrewsbury, d&c., R. Co., 3 K. & CB. NS. 668; Stapleton v.Hay- J. 654, 26 LJ. 764. men, 2 H. & C. 918, 33 LJ. 170; (d) See sup., p. 31], &e. and 25 & 26 Vict. c. 63,8. 3. Digitized by Microsoft® 456 INTERPRETATION OF STATUTES. might be enforced (a). When a company or public body is incorporated or established by statute for special purposes only, and is altogether the creature of statute law, the forms prescribed for its acts and contracts are imperative and essential to their validity (b). If its articles of association under the statute prescribed the attestation of proxies, the omis- sion of this formality would vitiate them (c). Such a company, empowered to borrow by mortgage, under certain circumstances, not more than a given sum, to be applied in carrying out the Act, would be limited to its statutory power, and all borrowing not so expressly authorised would be invalid as regarded the company (d). So, enactments regulating the procedure in courts seem usually to be imperative and not merely direct- ory (e). If, for instance, an appeal from a decision be given, with provisions requiring the fulfilment of (a) Wilson v. West Hartle- 363. pool Co., 2 De G. J. & 8. 475, 34 LJ. 241. See Green v. Jen- kins, 1 De G. F. & J. 454. (6) Cope v. Thames Haven, &e., Co., 3 Ex. 841; Diggle v. London & Blackwall R. Co., 5 Ex. 442; Frend v. Dennet, 4 CB. NS. 576. See also Corn- wall Mining Co, v. Bennett, 5 H. & N. 432; Irish Peat Co. v. Phillips, 1 B. & 5. 598, 30 LJ. (c) Harben v. Phillips, ChD. Dee. 6, 1882. (d) South Yorkshire R. Co. v. Great N. R. Co., 9 Ex. 55, 22 LJ. 305; Chambers 2. Man- chester, &c., R. Co., 5 B. & S. 588, 33 LJ. 268 ; Comp. Cork & Youghal R. Co., LR. 4 Ch. 748. See R. v. Coltman, 19 ChD. 64, 51 LJ. 3. (e) See, however, inf., 470, &c. Digitized by Microsoft® IMPERATIVE OR DIRECTORY. 457 certain conditions, such as giving notice of appeal and entering into recognizances, or transmitting docu- ments within a certain time, a strict compliance would be imperative, and non-compliance would be fatal to the appeal(a). The 57 Geo. 3, c. 99, which required that no action should be brought against a clergyman for any penalty incurred under it, until notice had been delivered to him, and also to the bishop “by leaving the same at the registry of his dioccse,” was held, with perhaps extreme rigour, not complied with by a delivery to the deputy registrar at the house of the latter, who carried it next day to the registry. (b) The County Court rule, requiring that in actions to recover land the summons shall be delivered to the bailiff forty days at least before the return day, and be served within thirty-five days before that day, was similarly held imperative; so that if the summons were not delivered to the bailiff in due time, though the latter should serve it in the prescribed time, the judge would have no jurisdiction to try the cause (c). The same imperative effect seems, in general, pre- sumed to be intended, even where the observance of the (a) R. v. Oxfordshire, 1 M. & (6) Vaux v. Vollans, 4B. & 8. 446; R. v. Carnarvon, 4 B.& Ad. 525. A. 86; R. v. Bond, 6 A. & E. (c) Barker v, (Palmer, 8 QBD. 905; R.v. Lancashire, 8 E. & 91. See also Brown v. Shaw, 1 B. 563 ; Morgan v. Edwards, 5 Ex. D. 425; Tennant v. Raw- H. & N. 415; Woodhouse v. lings, LR. 4 CPD. 135; Williams Woods, 29 LJ. MC. 139; Foxv. v. Swansea Canal Co., LR. 3 Ex. Wallis, 2 CPD. 45. 158. Digitized by Microsoft® 458 INTERPRETATION OF STATUTES. 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 in- convenience or injustice calls for a different construc- tion. 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 omission 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 pro- vided 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.(b) This was hard on the former, but it was essential for the latter that the warrant sbould be duly authenticated. So, the strict observance of the provision in the Public Worship Act of 1874, requiring that the bishop shall send to the inculpated clergyman a copy of the representation of the illegal acts imputed to him, within twenty-one days, was held essential to the validity of the proceedings subsequently taken (a) Re Dale, 7 App. 240, 50 303. So, arate under the Pub. LJ. QB. 234. Health Act, 1848; R. v. Work- (0) Exp. Van Sandau, De G. sop Board, 5 B. & 8. 95. Digitized by Microsoft® IMPERATIVE OR DIRECTORY. 459 against him; so that those proceedings were void where the copy had not been sent till after the pre- scribed time (a). If commissioners, authorised to fix the 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 Act declared that the boundaries “‘so fixed” should be 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 (b). Where a Statute enacts that convictions or orders shall be in a certain form, it is peremptory and not merely directory (c). The pro- vision of the Union Assessment Act of 1862, regarding the deposit of the valuation list for inspection was held obviously imperative: for the omission would have left persons aggrieved by any alterations, without a timely opportunity for appealing (c). On the other hand, where the prescriptions of a statute 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 Legislature ; they seem to be generally understood (a) Howard v. Boddington, 2 QB. 960. PD. 203. ~ (c) R. v. Chorlton Union, LR. (6) R. v. Washbrook, 4 B. & 8 QB.5; R. v. Ingall, 2 QBD. Cc. 732; R. v. Arkwright, 12 199. Digitized by Microsoft® 460 INTERPRETATION OF STATUTES. as mere instructions for the guidance and government of those on whom the duty is imposed, or, in other words, as directory only. The neglect of them may be penal (a), * indeed, 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, for instance, 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). 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). To hold that an Act which required an officer to prepare and deliver to another officer a list of voters, on or before a certain day, under a penalty, made a list not delivered till a later day invalid, would, in effect, put it in the power of the person charged with the duty of preparing it, to disfran- chise the electors; a conclusion too unreasonable for acceptance (d). (a) See Ex. gr. Clarke » Hunt »v Hibbs, 5 H. & N. 123, Gant, 8 Ex. 252, 22 LJ. 67. 29 LJ. Ex. 222; Morgan 2. (b) Per Littledale, J., in Parry, 17 CB. 334, 25 LJ. 141; Smith v Jones, 1 B. & Ad. 334. Brumfitt » Bremner, 9 CB. (c) R. vw Ingram, 2 Salk. NS, 1, 30 LJ. 33; RB. v Loft- 593. house, LR. 1 QB. 433, 35 LJ. (d) R. v Rochester, 7 E. & 145; R. w Ingall, 2 QBD. 199. B. 910, 27 LJ. QB. 45, 434 ; Digitized by Microsoft® IMPERATIVE OR DIRECTORY. 461 The Poor Law Amendment Act of 1834, in pro- viding that the Commissioners should direct the elections of one or more guardians for each parish in- cluded in the Union, did not make the constitution of the Board of Guardians invalid because one parish re- fused to elect a guardian (a). The enactment in the Ecclesiastical Dilapidations Act of 1871, which provides that within three months of the avoidance of a bene- fice, 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 rendering the estate of the late incum- bent exempt from liability for his dilapidations (5). The 5 Geo. 4, ce. 84, having enacted that when any convict adjudged to transportation by any British Court out of the United Kingdom was brought to England to be transported, it should be lawful to im- prison 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 cen- sure, but the detention was not unlawful so as to en- title the prisoner to be discharged (c). (a) R. v. Todmorden, 1 QB. Gleaves v. Marriner, 1 ExD. 185. 107, (6) Per Denman, J., in Cal- (c) Brenan’s Case, 10 QB. dow v. Pixell, 2 CPD. 562; 492. Digitized by Microsoft® 462 INTERPRETATION OF STATUTES. It is no impediment to this construction, 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 direc- tory (a). 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 (0). And yet it would be dificult 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 (c). The same construction was put on the 54 Geo. 3, ce. 84, which enacted that the Michaelmas sessions should be held in the week after the 11th of October, instead of the time then appointed (d); though such a construction would seem to have left the earlier law substantially unaltered, an intention not lightly to be imputed to the Legislature. Though the 43 Eliz. c. 2 requires that overseers of the poor shall be appointed yearly in Easter week, they may lawfully be appointed at any other time of the year (ec). In the same way, enactments fixing the time for the election of churchwardens and other (a) 2 Hale, P. C. 50. (d) R. v Leicester, 7 B. & (b) 2 Hale, P. C. 39. C. 6. (c) Per Parke, B., in Gwynne (e) R. v Sparrow, 2 Stra. v. Burnell, 2 Bing. NC, 39. 1123. Digitized by Microsoft® IMPERATIVE OR DIRECTORY. 463 parochial and municipal officers, have been held to be directory only (q) ; or, at all events, if imperative, they would not be construed as depriving by implication the Court of Queen’s Bench of the power of ordering an election at a different time from that prescribed, where there had been a wrongful omission to hold it at the proper time, and public inconvenience resulted from the omission (b). So, the regulations for the conduct of elections under the Ballot Act are so far directory only, that an election is not invalidated by the non- observance of them, unless the non-observance was of a character contrary to the principle of the Act, or might have affected the result of the election (c). The 26 Geo. 2, c. 14, which “ required” the justices of the peace in England to settle a table of fees at their quarter sessions “held next after the 24th of June, 1753,” and, such table being approved by the justices ‘“‘at the next succeeding general quarter sessions,” to lay it before the judges at the next assize for confir- mation, was held imperative as to the requirement that a table settled at one sessions should be confirmed at the next; so that one which had been submitted for confirmation at the next, but had not been confirmed till a later sessions, to which its consideration had been (a) Anon., 1 Ventr. 267; R. (0) R. v. Sparrow, 2 Stra. v. Corfe Mullen, 1 B. & Ad. 1123; R. v. Rochester, ubi 211; R. v. Denbighshire, 4 East, sup. 142; R. vw Norwich, 1 B. & Ad. (c) Woodward +. Sarsons, 310; R. » Sneyd, 9 Dowl. LR. 10 CP. 733. 1001. Digitized by Microsoft® 464 INTERPRETATION OF STATUTES. adjourned, was invalid(a). But it would be compe- tent to the justices at quarter sessions to settle a table at the present time, though the Statute required them to do it in 1753. It isa duty which they might be compelled to perform ; and in this respect the Statute is directory (0). The usual provision in the commission of the peace that no justice named in it shall be capable of acting or authorized to act unless he shall have taken the oaths required by law, would lead to intolerable incon- venience and injustice if it were imperative, and struck with invalidity every act of an unqualified justice. If his acts were held void, it was pointed out by the King’s Bench, all-persons who acted in the execution of a warrant issued by him, would act without authority ; a constable who arrested, and a gaoler who received the arrested person, under it, would be trespassers. Resistance to them would be lawful ; everything done by them would be unlawful; and a constable, and the persons aiding him might ‘become amenable even to a charge of murder, for acting under an authority which they reasonably considered themselves bound to obey, and of the invalidity of which they were wholly igno- rant (c). Such. consequences could not reasonably be (a) Bowman v. Blyth, 7 E. & Ex. 86. B. 26, 26 LJ. MC. 57, 27 LJ. (c) 18 Geo. 2, c. 20; 51 Geo. MC. 22. See also Williams v 3, c. 36; Margate Pier Co. v. Swansea Navig., LR. 3 Ex. 158. Hannam, 3 B. & A. 266. Comp. (b) Lewis ». Davis, LR. 10 R. ». Verelst, 3 Camp. 432. Digitized by Microsoft® IMPERATIVE OR DIRECTORY. 465 supposed to have been intended; the interest of the public required that the acts should be sustained ; and the just conclusion was that the Legislature intended by the prohibition only to impose a penalty for its infringement. On the same general ground, 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 (a). The provision in the Mutiny Acts that a recruit shall, on enlistment, be asked certain questions touch- ing his personal history was considered merely direc- tory, and the omission to ask them did not invali- date the enlistment (b). But another section provided that every person who received enlisting money should be deemed an enlisted soldier. The Parochial Assess- ment Act,6& 7 Wm. 4, c. 96, after requiring that every poor-rate should set forth a number of particu- lars given in a form, respecting the persons and pro- perties rated, and that the churchwardens and overseers should sign a declaration at the foot of the form, added that “otherwise the rate shall be of no force ;” it was held that these last words were confined to the signa- tures, and did not affect the validity of the rate when (a) Foot v. Truro, 1 Stra. & P. 662. See R. v. Corfe 626. See also Lorant v. Scad- Mullen, 1 B. & Ad. 211. ding, 13 QB. 687,19 LJ. MC. (6) Walton » Gavin, 16 QB. 5, and Aldgate v. Slight, 2L.M. 48, HOH Digitized by Microsoft® 466 INTERPRETATION OF STATUTES. the other requisites were neglected ; because a different construction would have led to inconveniences which the Legislature must be presumed not to have in- tended(a). And the Public Health Act, 1848, in requiring that rates made under it should be published like a poor-rate, was also held directory only ; on the ground of the great inconvenience which would result from nullifying a rate whenever any of the particulars and forms required were not accurately given and - followed (b). The latter Act, indeed, omitted the nul- lifying words which the former contained; and the omission was considered to show an intention that such an inconvenience should not follow (c). The Act which enacted that no copy of a bill of sale shall be registered unless the original be produced to the officer duly stamped, did not invalidate the regis- tration if the bill was not duly stamped when so produced. The object of the enactment was to protect the revenue ; and this was thought sufficiently attained if the deed was afterwards duly stamped without going to the extreme of holding the registration void (d). The provision of the Insolvent Act, 7 Geo. 4, ¢. 57, which required the Court to cause notice of the filing (a) R. v Fordham, 11 A. & (c) See p. 394. Comp. Liver- E. 73. See Cole v. Green, 6 M. pool Borough Bank »v. Turner, & Gr. 872. sup. 455. (6) 11 & 12 Vict. c. 63; Le (d) 24 & 25 Vict. « 91; Feuvre y.. Miller, 8 E, & B. Bellamy v. Saull, 4 B. & S. 321; 26 LJ. MC. 175. 265, 32 LJ. 366. Digitized by Microsoft® IMPERATIVE OR DIRECTORY. 467 of the insolvent’s petition to be given to the creditors, was held to be merely a direction to the Court, and compliance with it not a condition precedent to the validity of the discharge (a). So, an Act (29 Geo. 2, c. 29), which empowered the quarter sessions to appoint treasurers, “first giving “security to be accountable,” was held directory as re- gards this provision, and as not affecting the validity of the appointment, which was held complete though no security was given (0). It has 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 share- holders. Thus, the provision that the register should be sealed, though essential to its being producible in evidence, is immaterial as regards making a person a shareholder, if there be in fact a book bond fide intended to be a register. But the neglect to number and appropriate the shares would be fatal (c). And the provisions in the Companies Act of 1862, (a) Read v. Croft, 5 Bing. N. ©. 68, 6 Scott, 770. So, B. 356, 26 LJ. 112; Wolver- hampton Waterworks Co. »v, as to sales of real estate (1 & 2 Vict. c. 110, s. 47), Wright ». Maunder, 4 Beav. 512. (6) R. vw Patteson, 4 B. & Ad. 9. (c) Per Cur. in Henderson v. Royal British Bank, 7 E. & Hawkesford, 11 CB. NS. 456, 29 LJ. 121, 31 Id. 184 ; South- ampton Dock Co. v. Richards, 1M. & Gr. 448 ; London Grand Junction R. Co. v. Freeman, 2 Id. 606. HH 2 Digitized by Microsoft® 468 INTERPRETATION OF STATUTES. 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 ereditors, and imposing penalties on any of the company’s officers who contra- vene them, are directory, so-that they do not affect the validity of unregistered mortgages (a). Where an Act provided that no beer license should be granted to any person who was not a resident occu- pier of the premises sought to be licensed, under the penalty of the license being null and void ; and it re- quired, further, that the applicant should produce to the licensing officer a certificate 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 nullifying words which were appended to the former, were some indication of a difference of intention ; besides, though it was reasonable that a license to a person not pro- perly qualified should be void, it would hardly be reasonable ‘that it should be void, if the holder was duly qualified, merely because the 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 overseer (b). So, a (a) Re Marine Mansions Co., See another illustration in LR. 4 Eq. 601; comp. Re Patent Bread Co., LR. 7 Ch. 289; Re Wynn Hall Co., 10 Eq. 515; Smith’s Case, 579. Bosanquet v. Woodford, 5 QB. 310. (6) Thompson v. Harvey, 4 H. & N. 254, 28 LJ. MC. 163. Digitized by Microsoft® IMPERATIVE OR DIRECTORY. 469 provision that convictions for sporting without a cer- tificate should be registered with the commissioners of taxes was held directory only, so that the omission to register it did not affect the validity of the con- viction (a). The Public Health Act of 1848, in empowering the Local Board of Health to enter into all contracts neces- sary for carrying the Act into execution, contains two provisions which may be taken as illustrating the dis- tinction under consideration. It enacts that contracts exceeding ten pounds in value shall be sealed with the seal of the board ; that they shall contain certain par- ticulars ; 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 crea- ture of the statute, it could not be exercised in any other manner than that prescribed by the statute (0). (a) Mason v. Barker, 1 C. & substance by 38 & 39 Vict, c. K. 100. 55, ss. 173, 174; Frend vz. (6) 11 & 12 Vict. c. 63, 8. Dennet, 4 CB. NS. 576 ; 27 LJ. 85, repealed and re-enacted in 314; Hunt ». Wimbledon Loc. Digitized by Microsoft® 470 INTERPRETATION OF STATUTES. 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 per- formance of which was essential to the validity of the contract (a). It was remarked, that in the former case, the party contracted with knew, or nad the means of knowing, what forms were required by the Act, and could see to their observance ; while in the latter, he had not, it was said, the same facility for ascertain- ing 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 (0). SECT, IV.—LEX NON COGIT AD IMPOSSIBILIA—CUILIBET LICET RENUNTIARE JURI PRO SE INTRODUCTO. Enactments which impose duties on conditions are, when these are not conditions precedent to the exer- Bd. 4 CPD, 49, 48 LJ. 207 ; Ashbury v. Richie, LR. 7 HL. 653 ; Eaton v. Basker, 7 QBD. 529, 50 LJ. 444; Young ». Leamington, 8 QBD. 579, 51 LJ. 292; R. v Norwich, 30 WR. 752, QB. May, 1882. Comp. Cole v. Green, 6 M. & Gr. 682. (a) Nowell ». Mayor, &c., of Worcester, 9 Ex. 467, 23 LJ. 139; Bonar v. Mitchell, 5 Ex. 415. (0) Per Parke B. Id. See East Anglian R.-Co. v. E. C. R. Co., 11 CB. 775, 21 LJ. 23; McGregor v. Deal, &e., R. Co., 18 QB. 618, 22 LJ. 69 ; Royal British Bank v. Turquand, 5 E. & B. 248; Nugent v. Smith, 1 CPD. 423. Digitized by Microsoft® OBSERVANCE EXCUSED. 471 cise of a jurisdiction, subject to the maxim that lex non cogit ad impossibilia aut inutilia. They are understood as dispensing with the performance of what is prescribed, when performance is impos- sible (a). Thus, where an Act provided that an appellant should send notice to the respondent of his having entered into a recognizance, in default of which the appeal should not be allowed, it was held that the death of the respondent before service was not fatal to the appeal, but dispensed with the service (b). In the same way, the provision of the 20 & 21 Vict. ce. 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 (c), (a) As to performance, where the duty has not been imposed by superior authority, but has been voluntarily assumed, see Paradine v. Jane, 27, Aleyn, and the cases cited in Hall v. Wright, E. B. & E. 746. See also Taylor v. Caldwell, 3 B. & S. 826; Boast v. Firth, LR. 4 CP. 1; Appleby v. Myers, LR. 1 CP. 615, 2 CP. 651 ; Clifford v. Watts, LR. 5 CP. 577 ; Howell vy. Coupland, LR. 9 QB. 462 ; and Nichols v, Marsland, 2 Ex Dz. 4. (6) R. v. Leicestershire, 15 QB. 88. See also Brumfitt »v. Roberts, LR. 5 CP. 224. (c) Morgan v. Edwards, 5 H. & N. 415, 29 LJ. MC. 108; Woodhouse v. Woods, Id. 149 ; Stone v. Dean, E. B. & E. 504; 27 LJ. QB. 319 ; Norris v. Car- rington, 16 CB. NS. 10; Exp. Harrison, 2 De G. & J. 229; Exp. Hull Bank, 27 LJ. Bank. 16 SC. Digitized by Microsoft® 472 INTERPRETATION OF STATUTES. was held dispensed with, when the Court was closed during the three days; since compliance was impossible (a). In such cases, the provision or condition is dis- pensed 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, with- out 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 tenement, essential to the acquisition of a settlement, would probably be complied with, if the rent was tendered, though it was not accepted (0). 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 diligence in searching for him, the service required by the statute would probably be dispensed with (c). So, if the appellant was entitled to appeal, subject to the con- dition of giving security for costs within a certain time, he would be held to have complied with the condition, if he offered and was ready to complete the security within the limited time, though it was, (a) Mayer v. Harding, LR. 2 (ce) Per Cur. in Morgan », QB. 410; see R. v. Allen, 4B. Edwards, and per Crompton J. & S. 915, 33 LJ. MC. 98. and Hill J. in Woodhouse ». (6) Per Bayley J. in R. ». Woods, ubisup. See also Syred Ampthill, 2 B. & C. 847. v, Carruthers, E. B. & E. 469. Digitized by Microsoft® “OBSERVANCE EXCUSED. 473 owing to the act of the Court, or of the respondent, not completed till long after (a). Where, however, the act or thing required by the statute is a condition precedent to the jurisdiction of the tribunal, compliance cannot be dispensed with ; and if it be impossible, the jurisdiction fails. It would not be competent to a Court to dispense with what the Legislature had made the indispensable 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 authorises them to make an affiliation order “ if “‘the mother’s evidence be corroborated in some mate- “rial particular by other testimony,” makes the evidence of the mother so essential to the jurisdiction, 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 (c). Under the 13th section of the Admiralty Act of 1861, which gives the Court of Admiralty the same powers, (a) Waterton v. Baker, LR. (c) 38 & 39 Vict. c 50; 3 QB. 173; and see R. v. Aston, Brown v. Shaw, 1 Ex. D. 425; 1L.M. & P. 491. Tennant v. Rawlings, 4 CPD. (b) R. v. Armytage, LR. 7 133. QB. 773. Digitized by Microsoft® 474 INTERPRETATION OF STATUTES. when a vessel or its proceeds are under arrest, as the Court of Chancery has under the Merchant Shipping Act of 1854, over suits for limiting the liability of shipowners, 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 shipowner could not give it jurisdiction by paying into Court a sum equivalent to its value or proceeds (a). Another maxim which sanctions the non-observ- ance of a statutory provision, is that, cuilibet licet renuntiare jurl pro se introducto. Every one has a right to waive, and to agree to waive the advan- tage of a law or rule made solely for the benefit and protection of the individual, in his private capacity (0), 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 (c). 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 (d). A passenger may waive the (a) James v. 8. W. R. Co., Moo. PC. 86; Lade v. Trill, 6 LR. 7 Ex. 287. See also R.v Jur. 272, per Knight Bruce, Belton, 11 QB. 379. V.C. (0) McAlister v. Rochester (d) Markham »v. Stanford, 14 (Bp.), 5 CPD. 194, 49 LJ. 114. CB. NS. 376. (ec) E. I, Co. w Paul, 7 Digitized by Microsoft® WHEN OBSERVANCE MAY BE WAIVED, 475 benefit of an enactment which entitles him to carry so many pounds of luggage with him ; and he dces so, it may be added, by taking a ticket with the express condition that he shall carry no luggage (a). The only person intended to be benefited by such an enact- ment is, obviously, the passenger himself ; and no con- sideration of public policy is involved in it (b). A company authorised 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 dis- cretion (c). When a person does waive the benefit of any such law, he cannot recall the concession, after it has been. acted on, and insist on the right which the rule gave him. A tenant, for instance, whose goods have been distrained, may waive the enactment which requires an appraisement before the sale of the goods; and he could not, after the sale, be heard to complain that no appraisement had been made (d). ‘The regulations concerning the procedure and prac- tice of Civil Courts may in the same way, when not going to the jurisdiction, be waived by those for (a2) Rumsey v. N. E. R. Co., E. 365, 30 LJ. 25. 14 CB. NS. 641; 32 LJ. 244. (d) Bishop v. Bryant, 6 C. & (b) Id. per Willes J. P. 484. And see Atkins v. (c) Hungerford Market Co. Kilby, 11 A. & E. 777. vy, City Steam Boat Co., 3 E. & Digitized by Microsoft® 476 INTERPRETATION OF STATUTES. whose protection they were intended. Thus, the pro- visions of the Act of 4 Anne, c. 16, which required that a plea in abatement should be verified by affi- davit, might be waived by the plaintiff(a). So, the 13 & 14 Vict. e. 61, 8. 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 (b). So, a defendant, even in a criminal case before a justice of the peace, may waive any irregularity in the summons, or in- deed dispense with the summons altogether ; and he does so, not, indeed, by appearing merely (c), but by appearing and entering on the case on its merits ; for he would not be allowed to take his chance of prevailing on the merits, and at the same time to reserve his objections to a preliminary irregularity (d). (a) Graham v. Ingleby, 1 Ex. Read, 4 B. & 8.174; Palmer v. 651. Metrop. R. Co., 31 LJ. QB. 259; (6) Park Iron Gate Co. v. Re Regent U. S. Stores, LR. 8 Coates, LR. 5 CP. 634. See Ch. 75. ‘also R. v Long, 1 QB. 740; (c) R. v. Carnarvon, 5 Nev. Tyerman v Smith, 2B & BO & M. 364, 719, 25 LJ. 259; Freeman ». (2) R. v. Barrett, 1 Salk. 383; Digitized by Microsoft® WHEN OBSERVANCE MAY NOT BE WALVED. 477 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 recognisances ; the party may waive this provision, and does so by declaring that he does not intend to appeal (a). But when public policy requires the observance of the provision, it cannot be waived by an individual. Privatorum conventio juri publico non derogat (6). Private compacts are not permitted either to render that sufficient, between themselves, which the law declares essentially insufficient; or to impair the integrity of a rule necessary for the common welfare ; such, for instance, as the enactment which requires the attestation of wills (c). Thus, the invalidity of the service of a writ on a Sunday cannot be waived ; for it is a matter of public policy that no such proceeding should take place on Sunday (d). It is said to bea general understanding in the profession that a prisoner can consent to nothing ; at least in the course of his R. v. Johnson, 1 Stra. 261; R. 8S. 493. v. Aiken, 3 Burr. 1785; R. v. (b) Dig. 50, 17, 45. Stone, 1 East, 639; R. v. Berry, (c) Per Wilson J. in Haberg- 28 LJ. MC. 86; R.»w. Fletcher, ham v. Vincent, 2 Ves. J. 227. LR. 1 C. C. 320; R. » Smith, See New York Civ. Code, Art. Id. 110; R. v Widdop, LR. 2 1968, n. 2. C.C. 3; Bolton v. Bolton, 2 Ch. (d) Taylor v. Phillips, 3 East, Dz 217. 155. ‘ ; (a) R. v. Yorkshire, 3 M. & Digitized by Microsoft® 478 INTERPRETATION OF STATUTES. trial (a). In criminal matters, a person cannot waive what the law requires (b). Where, upon a trial for felony, the jury was discharged, and, at the new trial, some of the witnesses, after being sworn, had their evidence read over to them by the judge from his notes, and the counsel for the Crown and the prisoner had afterwards liberty to examine and cross-examine them; it was held that this course of proceeding vitiated the trial, and that the consent or acquiescence of the prisoner did not cure the irregularity (c). The object of a criminal trial, it was observed, was the administration of justice in a course as free from doubt or chance of miscarriage as human adminis- tration of it can be; not the interests of either party. Consent cannot give jurisdiction (d) ; and therefore any statutory provision which goes to the jurisdiction does not admit of waiver. It was held that the pro- vision of the 20 & 21 Vict. ¢. 43, which requires the appellant from a decision of justices to transmit the case in three days to the court of appeal, could not (a) Per Cur. in R. w Ber- Ex. 651. Comp. R. v Thorn- trand, LR. 1 PC. 520. hill, 8 C. & P. 575. See Exp. (0) Per M. Smith, J. in Park Best, 18 Ch. D. 488, 51 L. J. Gate Iron Co. v. Coates, LR. 5 Ch. 293. CP. 639. (d) Lawrence v. Wilcock, 11 (c) Rv. Bertrand, ubi sup.; A. & E. 941; Lismore v, Beadle, and see R. v. Bloxham, 6 QB. 1Dowl. NS. 566; Exp. Robertson, 528 ; per Pollock, C.B. and Alder- 20 Eq. 733; Jackson v. Beau- son, B. in Graham v, Ingleby, 1 mont, 11 Ex, 303, 24 L. J. 301. Digitized by Microsoft® CONTRACTS MADE NON-PERFORMABLE. 479 be 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). 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 enrol it (c). Where an Act of Parliament compels a breach of a private contract, the contract is impliedly repealed by the Act, so far as the latter extends; or the breach is excused, or is considered as not falling within the (a) Morgan v, Edwards, 5 H. & N. 415; Peacock wv R., 4 CB. NS. 264, 27 LJ. 229. Comp. Peters v. Sheehan, 16 M. & W. 213; Great N. R. Co. ». Ivett, 2 QBD. 284; R. v. Hughes, 4 QBD. 615. See the remarks in Park Gate Iron Co. v. Coates, LR. 5 CP. 634, dubit. Keating, J.; Bennett v. Atkins, 4 CPD. 80, (b) Joyce v. Booth, 1 B. & P. 97; Cox v. Cannon, 4 Bing. N. ©. 453. (c) Molton v. Camroux, 4 Ex. 17; Turner v. Browne, 3 C. B. 157, Digitized by Microsoft® 480 INTERPRETATION OF STATUTES. contract (a). 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 (b). Thus, where land was leased to certain persons, who covenanted to build a work- house 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 Poor Law Commissioners, under the 4&5 Wm. 4, c. 76, incorporated the parish in an 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 (c). 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 covenant is unaffected by the Act (d). Where a lessee covenanted, for himself and his “assigns,” that he would not build on the demised premises ; and he was afterwards compelled, under an (a) Per Cur. in Brewster v. (c) Doe v. Rugeley, 6 QB. Kitchell, 1 Salk. 198. 107. See D. of Devonshire ». (b) Per Pollock C.B. in Os- Barrow, 2 QBD. 286. wald v. Berwick, 3 E. & B. 653, (d) Per Cur. in Brewster v. 23 LJ. 331. Kitchell, 1 Salk. 198. Digitized by Microsoft® CONTRACTS MADE NON-PERFORMABLE, 481 Act of Parliament, to sell the land to a railway com- pany, who built on it; it was held that the company was not an “assign” within the meaning of the covenant. The Legislature, it was considered, had, in compelling the sale, created a kind of assign not contemplated by either lessor or lessee when the contract was entered into; and so, the lessee could not justly be held responsible for the acts of such an assign. It was not reasonable to impute to the Legislature the intention that he should remain liable for the non-performance of that which it had, itself, prevented him from per- forming (a). (a) Baily v. De Crespigny, 9 CB. NS. 726, 30 LJ. 225; LR. 4 QB. 180. See also Wad- Newington v. Cottingham, 12 ham ». P. M. Genl., LR..6 QB. Ch. D. 725, 48 LJ. 226. 644; Brown v. Mayor of London Digitized by Microsoft® CHAPTER XIII. SECTION I.—CONTRACTS CONNECTED WITH ILLEGAL ACTS, A CONTRACT is not illegal merely because it is void or not enforceable. An Act, for instance, which limits the contracting power of a company to certain con- tracts 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 (b). But when a statute prohibits an act, any contract made re- specting it is illegal as well as void(c). What has been done in contravention of an Act of Parliament, it has been said, cannot be made the subject of an action (d). Thus, as the Metropolitan Building Act prohibits the use of combustible materials for building walls in the (a) See ex. gr. Ashbury R. gate ». Slight, 2 LM. & P. 662. Co. v. Riche, LR. 7 HL. 653. (c) Bartlett v, Vinor, Carth. (6) Ex. gr., 55 Geo. 3,c. 194; 252; Redpath v Allen, LR. 4 21 & 22 Vict. c. 90; per Willes PC. 511. J. in Turner v, Reynell, 14 CB. (d) Per Lord Ellenborough, NS. 328, 32 LJ. 164; Helps». in Langton v, Hughes, 1 M. & 8. Glenister, 8 B. & C. 553; Hol- 593. Digitized by Microsoft® PENALTY MAKES AN ACT ILLEGAL. 433 metropolis, the builder of any such walls could not maintain an action for the price of erecting them (a). A waterman being prohibited by statute from taking an apprentice, unless he was the occupier of a tenement wherein to lodge him ; it was held that no settlement was gained by service under an inden- ture of apprenticeship made contrary to this provi- sion (0b). When a penalty is imposed for doing or omitting an act, the act or omi giving, 149 not material to validity of beer licence, 468 Digitized by Microsoft® 542 INDEX. CERTIFICATE—continued, : of ship’s registry, pledge of, void, 255, and illegal, 485 of judge, as to costs in slander, 211 to pilot ‘‘any ships belonging to the same owner,” enactment as to, con- strued, 361 of acknowledgment of married woman, filing imperative, 450 medical, 454, See Lunatic. sporting without, convictions for, 469, See Convicrion. for costs, Act authorising, repealed before given, 511, 512 clearing officer’s, sailing without, prohibited, and voyage illegal, 486. See VovacE. of surveyor’s estimate, directory, 479 obtaining licence by, as person of good character, 326 CERTIORARI, construction of statutes which take away, 12, 128, 154, 156; when not taken away, 158 Crown not affected by such Acts, 163, 164 when taken away, mandamus refused, 140 CESSANTE RATIONE CESSAT LEX, 56 CHAMBERLAIN. See Byz-Laws. CHAMBERS, meaning of, as ‘‘a house” for purposes of assessment to poor rate, 48 gaining a settlement, 48 qualifying under Reform Act, 48 as a place wherein a burglary may be committed, 48 not the same for purposes of ‘‘ inhabited house duty,” 48 C:IANCERY, non-payment-of money under orders of Court of. See Desr. injunction to prevent misapplication of poor rate, 153 power to make rules for service of process abroad, 357 jurisdiction of, where ship under arrest, 474 CHANGE of language, effect of, as to repeal, 388, 391 “CHARACTER,” person of “good,” 326 permitting persons of ‘‘ bad,” to assemble, 55 CHARGE, rent charge though invalidated by statute, covenant in deed creating such, enforceable, 492 Digitized by Microsoft® INDEX. 543 CHARGES, statutes imposing, construed strictly, 348. See BuRDENS. ou lands, rectories, &c., 1 & 2 Vict. c. 10, as to, consistent with 13 Eliz. c. 10, 199 Middlesex Registration Act as to, not repealed by 1 & 2 Vict. c. 110, 216 retrospective not authorised, 246 prohibition against deduction from wages for frame rent and other, 407 CHARITABLE USES, statute of, construed contrary to meaning of its framer, 34, 35 ‘‘and” construed ‘ or,” 285, 286 CHARITY, property, effect of long continued breach of trust in respect of enjoyment of, 368 ‘commissioners, when impliedly required to give approval to grant, 442 CHARTER. See Usace. CHARTER-PARTY. Sce Stamp—County Court. extrinsic evidence admitted to explain, 29 Admiralty jurisdiction as to, 160 CHATTELS. Sce FixtuREsS—Fatse PRETENCES. CHEQUE. See BaNkK—BANKER—FALSE PReTENCES—LARCENY, obtaining money by false pretences, 325 “CHILDREN.” Sce ABDUCTION—SCHOOL. not confined to technical meaning, but construed to include illegitimate, 73 when not, 334 mother and grandmother of such under coverture, not within statute 43 Eliz. in respect of maintenance of, 99 fraudulent removal of pregnant women for settlement purposes, 139 under seven, idiots, lunatics, and intoxicated persons, incapable of criminal intention, 115 CHINA, ‘* any crime or offence against the law of,” in colonial ordinance for extra- dition, 31, 275 CHOSES IN ACTION, formerly not within 13 Eliz. c. 5, 76 now within it, because seizable in execution, 94 larceny of, 343, 344 Digitized by Microsoft® r 54d INDEX. CHURCH, rate. See Crown. burglary in, Coke’s opinion, 335 Hale’s opinion, 335 pews, nature of interest in, 108. See Pew. eo restraining alienation of church property, not narrowed by preamble, 57, 58 13 Eliz., not including bishops, ay not affected by 1 & 2 Vict. v. 110, s. 13, 199, 200 rate, jurisdiction of Beclesiastical Courts to enforce, when repealed, 190 riotously demolishing, 116. See Demotisa. “repairs,” widest meaning given to enactment as to, in Church Building Act, 351 vestments. See Rupric. Acts of 31 Eliz. against simony, and 13 Eliz. respecting Ecclesiastical leases apply to Crown, 167 parson’s power to grant leases under 13 Eliz.’ ‘ce. 10, not abridged by 5 Vict. ce. 27, 211 charging benefice, evasion, 144 alienations contrary to, void or voidable, 252 18 Eliz. c. 1] (as to leases by ecclesiastics) not affecting property excepted from 13 Eliz. c. 10, by 14 Eliz. ¢. 11, 213 CHURCH DISCIPLINE ACT, under, bishon's power to appoint commission for examining witnesses discretionary, 291 CHURCHWARDEN. Sce Rerusat. inspection of accounts of. See PARISHIONER. not included in “inhabitant,” 82, 83 notice of appeal by. See Noricz. and overseers bound to make rate to reimburse constable, 287 and impliedly indictable for not doing so, 494 Act fixing time of election of, directory, 462 and overseers, signature of, in declaration at fuot of form of poor rate imperative, 465 CLAIM OF RIGHT, abduction under, 117 riot under, 116 illegal demand under, 108 shooting pigeons under, 107 CLANDESTINE MARRIAGE, Act against, extends to illegitimate children, 73 Digitized by Microsoft® INDEX. qr nae cr CLANDESTINE REMOVAL, of goods to avoid distress, two remedies, 499 “CLEAR DAYS,” exclude first and last, 423 CLEAR YEARLY VALUE. See Vauve. CLERGY, Act of 12 Car. 2 confirming appointments inapplicable in cases of simony, 103 27 G. 3, c. 44, limiting time for suits for incontinence and for soul’s health, construed, 104 Toleration Act construed not to exempt a clergyman who has seceded from church from prosecution for breach of discipline, 104 ex officio oaths, how abolished, 194 action by curate for salary, repeal by implication, 208 discretion of bishop under Church Discipline Act of 3 & 4 Vict., 291 inculpated clergyman, 458. See Bistrop. : notice of action against, service of notice, 457 hearing before requiring incumbent to appoint a curate, 445 before deciding appeal, 446 penalty for taking lands to farm, 496 CLERICAL ERRORS IN RECORDS: Crown not included in Statute of Amendments, 165 in statutes may be read as amended, 305; but in statutes governed by principles of strict construction such emendations refused, 305 CLERICAL OMISSION IN STATUTES, how far rectified, 304, 305 CLERK, of clerk to trustees, signature when insufficient, 89 CLERK OF THE PEACE, conflicting Acts as to tenure of the office, 193 CLERK OF PARLIAMENT, his duty to indorse title and date of passing on Acts, 519 CLOSED COURT, 471. See TRANSMISSION. ‘COALS, ticket to be delivered with, 488 COAST. See Distance, COGNATE STATUTES. Sce AxaLocots AcTs—IN PARI MATERIA, NWN Digitized by Microsoft® 546 INDEX. COKE (LORD), his rules of interpretation, 27, 333 opinion of burglary, 335 COLLISION ON HIGH SEAS foreign ship, 184 COLONIAL GOVERNOR, jurisdiction impliedly given to justices to inquire into offence by, 419 COLONIAL LEGISLATURE, extent of implied authority to protect itself from disturbance, 438 COLONIAL OFFICERS, Act authorising removal of, not limited by preamble, 61 COLONIAL ORDINANCE. See Cutna, COLONIES, Act substituting penal servitude for transportation applies to, 173 ‘land of bankrupt in, 177, 178 COLOUR of Statute, what acts done under, protected, 278 COMITY OF NATIONS affects questions of personal status of foreigners within British territory, 168. See INTERNATIONAL Law. COMMENCEMENT OF OPERATION OF STATUTES, 517—519. proclamation never necessary to their operation, 517 operates from first moment of day when it passed unless another named, 518 fiction of law treating whole session as held on first and lasting only one day, 518 abolished by 33 G. 3, e. 18, 519 indorsement of date required by Act, the date of commencement, 519 “where Royal assent not given till after day named for commencement, Act takes effect on later day, 519 Registration Act of 1881 requiring printers to make returns before 31 July, not passed till 27 August, 519, n. (5) where bill to continue Act about to expire does not receive the Royal assent until Act has expired, 519 of a law in France and in ancient Rome, 517, n. (e) in United States the hour when Act passed, noticed, 518, un. (6) COMMERCIAL SENSE, articles specified in Customs Acts understood in, 75 Digitized by Microsoft® INDEX. 547 COMMISSION TO EXAMINE WITNESSES. See WITNESSES. COMMISSION OF PEACE, requirement in oath directory, 464 COMMISSIONER OF TAXES, enactment that questions arising upon taking distress should be determined by, 153 of public works. See CROWN. of stamps. See Sramps. powers of, under Nuisance Removal Act, 209 COMMIT authority to. See Drptors’ Acr, power to, when implied, 433 when statute gives power of immediate commitment, 447 where opportunity for defence at another stage, 447 COMMITMENT, warrant of, seal essential, 458. Sec HaBezas Corpus—HEAaRING. ‘*COMMON,” “right af,” used in restricted sense in Prescription Act, 36, 401 COMMON LAW, remedies for offences by, when to be implied, 494. See REMEDIES. procedure by indictment and punishment by fine and imprisonment, 494 Procedure Act, provision for enforcing judgments in, retrospective, 271 as to costs in actions for wrongs, 272 : when not retrospective, 273 COMMUNIS ERROR FACIT JUS, 369 COMMUTATION, agreements, tithe, 288. Sce ConFIRMATION, COMPANIES CLAUSES CONSOLIDATION ACT, sec. 16 a protection to the company only, and not affecting validity of a transfer as regards creditors, 129 COMPANIES, RAILWAY AND OTHER, Acts obtained by, regarded as contracts, 363 verba cartarum fortius accipiuntur, &c., applicable, 364 construed as strictly as Crown grants, 365 no more granted than what passes by unavoidable construction, 365 forms of contract by, whether imperative or directory. Sce FoRMALITIES. limited power to borrow, 456 liability to make good parochial rates, 21, 22 no power implied for ordinary railway gas and water, to draw bills, 438 NWN Q Digitized by Microsoft® 548 INDEX. COMPANY, statutory formalities imposed on acts and contracts imperative, 456 gas, where without the knowledge of its servants, washings polluted well, liable, 122. See Gas. where it ‘‘ dwells,” 80, $1. See DWELLING. winding-up under sec. 199 of Act of 1862 applies only to lawful, 384, 385 execution against, when winding up, ‘‘ void,” 39 winding up, when “just and equitable,” 411 contracts by or on behalf of, when illegal, 483, 484 Sce Prospectus— ReGisteR — SHARES — IMPLIED Duties — IMPLIED Powers, COMPENSATION, dispute as to amount to be settled by arbitration construed, 159 statutes giving, for damage under Parliamentary powers intended, not to create new rights, but to give compensation when a right of action has been taken away, 110 where penalty is compensation, 502—504 what damage not the subject of, under Metropolitan Building Act, 112 COMPETENT, to dispose by will in Succession Duty Act intends, not mental sanity, but possession of estate, 68 COMPLAINT, time for making, construed, 234 COMPOSITION. See ARRANGEMENT, COMPULSORY reference. Scc ARBITRATION. clauses for taking land, 161. See Crown. when permissive terms are, 287—303. See MopIFIcATION oF, &c. COMPUTATION. See TIME—DISTANCE. CONCEALED FRAUD, 7 n. (@), 8 CONDITIONS, . ; ee : when statute confers right, privilege, or immunity with, imperative, 453 imposed by statute, when they may be waived or dispensed with, 470—481. Sce PERFORMANCE. precedent to jurisdiction, cannot be, 470—473 CONDUCT en Le ; of party may estop him from availing himself of provisions for his benefit, 479 Digitized by Microsoft® INDEX. 549 CONFERRING RIGHTS, statutes, how far they affect foreigners, 181, See FOREIGNER. CONFIRMATION in benefice. Sce Srmony. of table of fees by judges, time prescribed for, imperative, 463 of tithe commutation agreements imperative, 288, 289 CONJECTORE, safer to adopt literal meaning than, 14, and sce 65 where Act inoperative, 23 CONSENT cannot give jurisdiction, 478 of author, written, for representation of drama, may be given by agent, £7 CONSEQUENCES. Sce Locicat ConsEQuENCES. to be considered, 95 of construction, where language capable of only one meaning disregarded, 3, 4, 24 . CONSIDERATION, voluntary, used in limited sense, 404 deed made on, partly illegal, 492 CONSISTENT affirmative acts, 198, 205. Sce REPEAL. CONSOLIDATION. See INcorPoRATION, CONSTABLES, rate to reimburse, imperative, 287 order of justices to pay special, invalid unless after notice, 444 CONSTRUCTION of statutes, imposed by statute, 374—376 Sce STATUTES: CONSTRUCTIVE NOTICE, 104. See Norice. CONTAGIOUS DISEASES (ANIMALS) ACT, enactment requiring notice with “ all practicable speed,” 118 jurisdiction of justices by implication, 159 no cause of action given by implication, 503, and sce 507 CONTEMPORANEA EXPOSITIO EST OPTIMA ET FORTISSIMA IN LEGE, 366. Sce Usace. Digitized by Microsoft® 550 INDEX. CONTEMPT, jurisdiction under a Manx Act for House of Keys ‘‘ when in execution of its office” to punish for, limited by scope of Act, 106 jurisdiction of colonial legislatures, to punish for, 438 of Court, when attorney to be deemed guilty of, and indictable, 499 CONTEXT, 24—49. construction to be made of all the parts of a statute together, 35 even when words plain a survey of the whole indispensable, 36 true meaning of any passage that which best harmonizes with subject and every other, 35—40 Examples— sections showing a written and not verbal notice intended, 36 “any right of common” restricted to right of common appur- tenant, 36 “land” in Dower Act, 36 sense of section giving power to Board of Trade to detain ship for survey modified, 37 consent of Board of Works to build beyond oneal line confined to building on vacant land, 38 liability to penalty for selling food ‘‘as unadulterated,” though seller ignorant of adulteration, 38 direction for setting out highways in enclosure Act in relation to reservation of minerals, 38. enactment that any distress shall be “void to all intents” modified to mean voidable, 39 candidates included in exception in Ballot Act, 39 in what way part of Act affects construction when it embodies several distinct Acts, 40 Earlier Acts, in pari materid, if any, must be surveyed for elucidation of later ones, 40 Examples, 40, 42 ‘any person” in bye-law authorizing election understood as “any eligible person,” 40 jurisdiction in case of ‘‘damage” done-by any ship iuapplic- able to personal injuries, 40 possession in. Reform Act means same as in Statute of Uses, 41 what rates to be paid under Reform Act, 41, 42 “any officer” detaining bankrupt inapplicable to jailor, 42 Later Acts, also furnish interpretation of earlier ones, 42 Examples, 42, 43— ‘all weirs” in Magna Charta confined to navigable rivers, 42 “broker” in Act of Anne, 42 “‘wilful default ” in Shipping Act, 43 Digitized by Microsoft® or or — INDEX. CONTEXT—continued. Examples— remedy by foreign attachment given by later Act confined to judgments in strict sense, and inapplicable to Rules of Court, 43 general rules and forms where enacted that they shall have same force as if included in Act may be referred to, 44 Expired and Repealed Acts, on same subject also, and the construction put upon them, 44—46 presumption that same language is used in same sense, 44 securities ‘‘void” when given to creditor to forbear opposition in Bankruptcy Acts, 44 ‘running away leaving child chargeable” in Vagrant Acts, 44 cattle found lying on highway, 45 if part repealed it is to be considered in construing rest, 45 Instances :— duty imposed on racehorses and all other horses, and repeal as to racehorses, 45 duty on artificial mineral, and all other waters used as medicine, repeal as to mineral, 45 Acts on similar subjects— where language different, to be considered, 46 Instances— Insolvent and Bankrupt Acts as to vesting of debts of insol- vent, 46 acknowledgment by agent insufficient to bar Statute of Limi- tations, 46 value of tenement in ejectment under County Court Act, 46 signature under Statute of Frauds sufficient under Bankrupt Act and Statute of Limitations, and Registration of Voters Act, 47 Acts not in pari materia are fallacious, 47 Examples— meaning of ‘‘ goods,” 47 of ‘clear yearly value ;” ‘chambers ;”’ “‘ bicycle ;” in such Acts, 47, 48 CONTINUING, Act, till next session, a statute not limited in duration, idle, and not abrogating, 376 CONTINUING ACT, not receiving royal assent until after Act has expired, takes effect from expiration, 519. See REVIVAL. except as to breaches between expiration and assent, 519 time allowed for suing in respect of it, computed from its termination, 425 CONTRACT. See PerroRMANCE—PROSPECTUS—CONVEYANCE— VOID, connected with illegal acts, 482—491 not illegal because void, 483. Instances— when contracting power of company limited, contracts ultra vires void, Digitized by Microsoft® 552 INDEX. CONTRACT—continuwed. but not illegal: enactment that an unqualified professional man should not recover, 482 when prohibited, any contract respecting it is illegal, 482. Examples :— builder precluded from action for walls built with prohibited materials, 483 apprentice serving under master prohibited from taking apprentice, 483 where a penalty is imposed for doing or omitting act, such act or omission is prohibited and illegal, 383. Haamples— apprenticeship indentures, where masters are liable to penalty for taking them, 483 by promoter of joint stock companies before provisional registration, 483 by unregistered companies of more than twenty persons, 484 under Sunday Act, 254, 484 where road surveyor had share of contract for road materials supplied without requisite licence, 484 pledge of certificate of ship’s registry illegal, 484, 485 contracts growing out of an illegal act are illegal :-— to dance at an unlicensed theatre, 485 to let premises for purpose of enabling unlicensed lessee to sell spirits, 486 payments made by election agents other than the expense agent, 485 a partnership agreement to carry on the business of pawnbroking stipu- lating against the requirement in the statute for painting up the names, 485 master sailing without clearing officer’s certificate renders voyage illegal, 486 selling drugs to a brewer with knowledge of the intended use, 486 but mere knowledge of purposed illegality without privity would not avoid contract ¢— selling goods abroad intended to be smuggled, 487 whether contract which disregards prescribed regulations, &c., is illegal, or whether object of Act is not sufficiently attained by the penalty, 487 where provisions have some object of public policy, such are illegal, 487 :— contracts for sale of bricks required to be made of specified dimensions, 487 of corn except by measure, &c., 488 where regulations relate to personal qualification, contracts made in disregard of them illegal : — unqualified person drawing conveyances, 489 unqualified broker acting, 489 - effect of enactment against person interested in contract with a company being director, and that if interested, he should cease to be so, 489 where object of Act attained without invalidating contracts, statute does not affect it, 490 where requirement in distiller’s licence not complied with by omission of partuer’s name, 490 validity of pledge under Pawnbrokers’ Act, not affected by omission to paint up name, 491 Digitized by Microsoft® INDEX. 553 CONTRACT—continued. ‘ forms and formalities imposed by statute, how far imperative, 455. See ForRMALITIES, how far invalidity of part affects the rest, 491 formerly rule was that when part bad by statute, the whole was invalidated, 491 ; but that if part bad by common law remainder valid, 491 depends on whether the vitiated part can be severed from Act or not, 492 :— deed on consideration in part illegal, whole void, 492 aliter, if only some of the promises constituting the consideration were illegal, and the rest not tainted by illegality, 492 rent charge on living void by statute, declaring charging void, a cove- nant in deed creating charges to pay it good, 492, &e. tenant liable on covenant to pay rent clear of taxes, though in another part an illegal covenant to pay property tax, 493 severable bye-laws ; orders of justices, similarly treated, 493 statutes imposing forms and solemnities on, strictly construcd, 352—356 imposing restrictions unknown to Common Law should be restrained, 352 Examples from ss. 4 and_17 of Statute of Frauds, 352—356 :— essential elements of contract under, must appear in writing, 353 but not in formal document, 353 by what note or letters satisfied, 353 from purchaser to other person, 354 from purchaser to seller repudiating, 354 parties to, to be described, so as to admit of identification, 354 but not necessarily by name, 354 ; signature sufficient, of auctioneer as agent of proprietor, 355 or trustee for sale, 355 not ‘‘signed by the agent of vendor,” 355 statutes impairing obligations, construed, 250, 251, n. (a) ef seq. contracts made incapable of performance by statute, 479. Sce PERFORMANCE. by parish officials. See ParisH OFFICER. , by directors of incorporated companies. See FORMALITIES. relative to sale of goods, exemption from stamp on, liberally construed, 350° local and private Acts regarded as, 363 by Board of Health, 169 for purchase of Government or other stock by bankrupt, extended to rail- way shares, 339 illegal when made, not rendered valid by repeal of Act which made it so, 513 CONTRARY TO NATURAL EQUITY OR REASON, statutes, formerly thought void, 315, 316 CONTRAVENTION of statute, how right of action affected by, 482 CONVENIENCE, to public, remedies for disobedience when matters of, are commanded, 494 and justice presumed to be intended by legislature, 230. See INCONVENIENCE, Digitized by Microsoft® 554 INDEX. CONVEY. See Wits Act. CONVEYANCE. Sce Every CoNVEYANCE. fraudulent, construction of Acts relating to, 94 knowingly made for giving vote ‘‘ void and of none effect” for that purpose only, 107, and see 252 enactment imposing stamp on all conveyances executed in England, when lands are abroad, 178 enactments abridging conveyances and instruments generally construed so as to be compatible with object and policy of Legislature, 252 Act of W. 3 making ‘“‘void,” &c., inapplicable where vendor not privy to the illegality, 252 ecclesiastical leases under 13 Eliz. c. 10, 252, See LEASEs. CONVEYANCER, not qualified, cannot sue for remuneration, 488 CONVEYANCING ACT, retrospective, 265 CONVEYING, ‘* having or conveying ” goods suspected stolen, 403 CONVICT, brought to England, to be transported to place of confinement, 471 CONVICTED OF FELONY, person, disqualified by retrospective Act from keeping a public-house, 2€6 CONVICTING JUSTICE, Act requiring service of notice of appeal on, &c., construed not to make him party to appeal, 235 CONVICTION, previous, 20. See Sroten Goops. limitation of time for, 8 Act requiring registration of game, directory, 369 enactment for certain form of, imperative, 459 COPE. See RvusRic, COPY. See CopyRicHT. by photograph, 94, 330 3 = by photograph from an engraving of a painting, 330, 337 COPYHOLDS, Pee ; now seizable in execution, and so witbin 13 Eliz. c. 5, 94 Mortmain Act applicable to, 93 devisable, without prejudice to rights of lord, 109 not included in Dower Act, 36 widow of tenant entitled to Statute of Merton, 428 Digitized by Microsoft® INDEX. 555 COPYRIGHT. See AvTuOR. Dramatic Act, consent in writing of author to representation may be by agent, 87 Act of 8 Geo. 2, applicable to copies by photography, 94, 330 sale of pirated copy in ignorance, 193 copy from copy, 330, 337. right of foreigner to, 182 in engravings, provision as to engraving, date and name of proprietor on, imperative, 453 : of book, entry at Stationers’ Hall of title, time of publication, &c., impe- rative, 453, 488 Act giving exclusive right to perform copyright music, not retrospective, 260 CORN, sale of, except by certain measure, 488 ‘‘corn, grass, or other product,” 408 CORONERS, usage for persons not knights to be elected, 368 CORPORATE BODIES. See Mortman. disabled from alienation, not within 39 Eliz. c. 5, giving to ‘all persons ” power to found hospitals, 100 removal of indictment against, 128 CORPORATE BUILDINGS, authority to expend funds on, extended to lining corporate pew, 85 CORPORATION, as to signature by, to agreement. Sce Fraups, STATUTE or. when included or not in enactments relating to persons, 75 when corporate bodies not included under ‘‘inhabitant,” 78 . where regarded as “‘ residing ” for fiscal purposes, 81 when a party, affidavit by, for discovery may be made by attorney, 90 included in ‘‘ persons,” unless used with that word, 396, 397 enactment requiring recognizances on appeal, not applied to, 92 Wills Act of Hen. 8 inapplicable to, 101 trustees created a, by implication, 428 rateability of municipal property, 488 Act which simply creates a, impliedly gives to it its attributes, 430 Examples — power to make contracts, 430 but not so when created for certain purposes only, as railway com- panies, &c., 430 in such cases powers of contracting restricted, 431 if contract beyond competency, incapable of ratification, 431 when created by statute for certain purposes, acts done by, without pre- scribed formalities, &c., void, 361. See FoRMALITIES—SwAL. Digitized by Microsoft® 556 INDEX. CORRUPT PRACTICES ACT, : ‘“ answering ” questions truly, 279, 280, 393. Sce SELF-CRIMINATING. making gift ‘directly or indirectly” to “endeavour to procure return,” 340 COSTS. See SEcuRITY. authorised to be given by Court where indictment was ‘‘ preferred,” held to authorise judge at N. P. after removal, to give, 31, 71 of “‘ party’ on appeal to Quarter Sessions, meaning of, 72 in discretion of Court, provision that they shall be, construed, 98 Act authorising Quarter Sessions to give, not applicable to Crown, 164 but Act of 20 & 21 Vict. c. 43, includes it, 166 to be given if “thought fit,” discretion how exercisable, 149 in slander, implied repeal, 211 Act of James I. for depriving plaintiff of, in slander repealed by Judicature Act, 193 Act giving costs payable directly, not repealed by another making them payable indirectly, 210 Act ordering costs of procuring it, without saying to whom payable, 431 incurred by county in discharging necessary duty, implied right to defray, 435 whether statutes giving, to be construed strictly, 351 sometimes liberally, 352 when imposed on strangers in ejectment, 352 effect of repeal of Act giving, pending action, 511 security for, partially repealed by implication, 430 of paving street, recoverable before justices, 157 exclusive jurisdiction of justices for recovery under Nuisances Removal Act, 157 Act authorising Quarter Sessions to give, in ‘‘ any appeal,” repealing excep- tion in earlier, 192 of Attorneys. Act as to recovery of, retrospective, 272 so Act as to executors, 272 “less than ” read ‘‘ not exceeding,” 276 “may”? give, compulsory, 289 COUNTERFEIT, coin, uttering, when genuine coin included, 334 COUNTY, Palatine. See ARREST. meaning of, according to 13 & 14 Vict. c. 61, 420 jail, maintenance of borough prisoners in, 220 when duty imposed on, power to defray costs, 435 Digitized by Microsoft® INDEX. 557 COUNTY COURT. See Crows—Batirr—Summons. ; jurisdiction of, over agreements in relation to use or hire of a ship, literal construction of Act followed, and held to include charter parties, 23, 60 in ejectment in, measure of value, 46 meaning of “dwelling,” when parties twenty miles apart, 80. Sve DWELLING. ‘*dwells and carries on business,” meaning of, in, 402 no action on judgments of, 155 signing judgment in, 215 suits in,’for claims recoverable before justices limited to six months, 236 right of Crown as to proceedings in Exchequer in revenue cases not affected by Act, 164 power to superior court to seud a case to county court, exercisable by a judge at chambers, 206 acquired no jurisdiction in cases previously referred to a special tribunal, 214 but acquired jurisdiction over rates recoverable previously in superior courts, 219 power of judge to appoint deputy in registrar’sa absence, under authority to regulate practice, 358 Act depriving plaintiff of costs, retrospective, 272 power under, to superior court to give costs compulsory, 289 construction of § & 9 Vict. as to hearing before commitment, 446, 447 waiver of notice of appeal and security, 476 COURT, of Requests. Sce REQUESTS. of Record. Supreme Court of Judicature, and not Quarter Sessions, intended when case made triable, or penalty recoverable in, 427 COVENANT. See Conrract—LeEases. not to assign lease, 136. Sce TENANT, COVENTRY ACT, the, strictly construed, 323 COVERTURE, of mother and grandmother of illegitimate children, effect of, in respect of maiutenance, 99 in deed creating illegal rent-charge enforceable, 492 Cows, limited meaning of, when coupled with ‘‘ heifers,” 397 CREDIT, obtaining under false pretences, 325 Digitized by Microsoft® 558 INDEX. CREDITORS. See BanKRUprcy. powers of majority of, under Bankruptcy Acts, to he exercised honestly, 146, 147 : meaning in Bankrupt Act, confined to creditors with provable debts, 76, 17, 243 when though general words are used, those only ‘non assenting ” to com- position are intended, and excluded under Bankrupt Act, 102 secured and unsecured, 111. See Jupicature Act. CRIMES. See Strict ConstRUCTION. penalty imposed in Act against, construed not recoverable for mere civil injury, 107 CRIMINAL, construction of, statutes in unqualitied terms making acts penal, 114, See Pena. Laws. matters, in, requirements of law cannot be waived, 478 trial vitiated by irregularities consented to, 478 CRIMINATING QUESTIONS. See SeLr-Criminatine. answers to, evidence, 429 CROSSING, railway, highway on a level, 440 CROWN, not bound by statutes unless named, 161—167 presumption is against intention to deprive, of prerogative or right or pro- perty, unless expressed or to be irresistibly inferred, 161 Examples— compulsory clauses for taking lands, 161 exemption of, from tolls and rates, 162 property occupied by, from church and sewers rate, 163 by servants of state for public purposes, 162 by Post Office, 162 Horse Guards, 162 Admiralty, 162. by local police, 162 judges’ lodgings, 162 county court, 162 for a jail, 162 ; or reformatory school, 163 commissioners of public works exempt from poor rate, 163 dockyards from land tax, 163 unless attached to the land, 163 Acts taking away, 163 or limiting time for issuing certiorari inapplicable to, 163 authority to Quarter Sessions in respect of costs of appeals, 164 Digitized by Microsoft® INDEX. 559 CROWN— continued. Examples authority to defendant or tenant in suits by, to plead several matters inapplicable to, 164 rights of Crown under County Court and Interpleader Acts, &., not affected, 164, 165 as sufficiently named, when an intention to name is manifest, 165 Act authorising justice to state a case, construed to authorise costs against, 166 Acts for public good, advancement of religion and justice, &c., said to be applicable to, though not named, 166, 167 Examples :-— statute de donis, 167, &e. Act making writs of error, &c., returnable into Exchequer Chamber, 167 privilege of, to use patented inventions notwithstanding general practice, 373 title to, preferred to that of subject, accruing on the same day, 425 CROWN GRANTS, we local and private Acts analogous to, and to be construed against grantce, 365 CUI JURISDICTIO DATA EST, EA QUOQUE, d&c., 433, See Impuiep Powers. CUILIBET LICET RENUNTIARE JURI PRO SE INTRODUCTO, 470, 474 CUMULATIVE, penalties. See PENALTY. remedies, 497. See REMEDIES. CURATE, action given by 28 Hen. 8 for stipend, not taken away by 1 & 2 Vict. c. 106, 208 CUSTODIA LEGIS, Act authorising distress, no authority for seizure when goods in, 97 CUSTODY, of lunatic, 118, 114 CUSTOM, usage, or local law, unaffected by general Act, 216—218 of London, 218. See Licurs. CUSTOMS ACTS. See. REVENUE. commodities mentioned in, understood in mercantile sense, 74 separate penalty on each offender for the offence of assaulting and resisting officer of, 238 Digitized by Microsoft® 560 INDEX. CUSTOMS ACTS—continued. ‘« prohibited goods” including those subsequently prohibited, 329 construed strictly, 348. Sce BURDENS. but so as not to be evaded, 351 regarded in America as remedial, 351 DAMAGE, when jurisdiction of Admiralty Court for, does not include personal in- juries, 40 confined to structural injury, in Metropolitan Building Act, 112 DANCING at unlicensed theatre, contract for, not enforceable, 485 DANGEROUS goods. See RAILWway. DATE of publication of print, 453. Sce CopyRicHT. of passing Act, to be indorsed by clerk of Parliament, 52 “DAYS.” See Time. in Act directing election of officers, means lawful days only, 98 “clear ;” ‘not less than;” or ‘‘at least ;”” mean so many, exclusive of both terminal days, 422 DEATH : of magistrate when summons on putative father cannot be served, effect of, 11 of mother, before hearing in bastardy, 471 of respondent before appeal, service of notice excused by, 471 of magistrate making protection order, 17 dead voter, personating, no offence, 324 DEBT. Sce PrisonER—ARREST. privilege from arrest for ‘‘debt ” extended to non-payment of money under orders of Court of Chancery and Rules of Court, 70 3W. & M.c. 14, 8. 3, giving creditors action for, construed, 62 DEBTOR, Act authorising examination of, where debtor is a corporation, 16 malpractice by, in obtaining vote, vitiates resolution of creditors, 147 DEBTORS’ ACT, empowering any inferior Court to commit for disobedience of order or judgment of that or any competent Court, limited to debtor being subject to its general jurisdiction, 97 Digitized by Microsoft® INDEX. 561 DEBTORS’ ACT—continued. not binding on Crown, 164 trustee in bankruptcy liable to arrest under, for disobedience of order to pay sum ‘‘in his possession or control,” though he had spent it, 250 DECLARATION at foot of form of poor rate, particulars in, imperative or directory, 465 DECLARATORY ACT, where repealing Act substitutes provisions, those repealed remain in force until substituted in operation, 513 DECREES NISIJ, retrospective operation of Act for making absolute, 273 DE DONIS, statute of, applies to Crown, 167 DEED. See UsaGeE. 7 Mortmain Act, though prohibiting disposition of lands otherwise than by, applies to copyholds, 93 if passages in a conveyance by, are repugnant, the earlier prevails, 188 if in statutes, how construed, 188 of married woman, filing of, imperative, 450 : provisions in General Turnpike Act as to leases without, not affected by 8 & 9 Vict. c. 106, 215 breaking into house to steal mortgage, 343. See LARCENY—TITLE. of gift. See Legacy Dury. made on consideration in part illegal, 492 DEFECT, before Act not provided for, to be considered, and contemporary writings, &c., leading to it, admissible to explain, 30 of title, 101. See EvERY CONVEYANCE. ‘“ DELIVERY OR TRANSFER,” coupled with “gift,” what is, 400 DEMOLISH, tumultuously assembling to demolish church or dwelling, 116 demolishing house by person bond fide believing he has title to the land, 116 meaning of ‘beginning to demolish,” 342 by fire, 342 DEMOLITION of house, Metropolitan Local Management Act authorising, impliedly requires defaulter to be heard,- 444 DEMURRER. See Sppetat. Digitized by Microsoft® 562 INDEX. DEPENDING. Sve Surv. DEPOSIT. See Stamp. DEPUTY, persons holding office in colonies and discharging duties by, 61. See REMOVABILITY, Registrar, 358. See Country Court. DESERTER, comprised under ‘‘ felons and other offenders against the law,” 60 seaman driven by cruelty to leave ship not a, 115 DESERTION. See CHILDREN. of children, when married woman not punishable for, 99 of family, intent material, 324 ‘DETENTION ” of bankrupt, enactment against any officer for, inapplicable to jailor, 42 DEVISE. See Wits Act, DIG, from grant of mines, power to, implied, 435 from power to dig up street, duty implied to fill up again, 439 power to dig a trench to let out water, &c., not implied from grant of fish in a pond, 437 ; so, where authority to cleanse « navigable river, no right implied to pre- judice fishing by digging, 437 DILAPIDATIONS, time limited for bishop to direct surveyor to report, directory, 461 DILIGENCE. Sce SKILL. ‘DIRECTLY OR IN DIRECTLY,” 340. See ELECTION, DIRECTOR, literal construction preventing his examination as a ‘debtor,’ 16 directors of incorporated companies authorized to make contracts, 105. See FORMALITIES. concerned in contract with company, prohibited from being a, but contract by, nevertheless valid at law, 489 but void in equity‘ 489 DIRECTORY. See IMPERATIVE or DIRECTORY, DISABILITIES, construction where the object of legislature was to give 4 new power of disposition by will and not to remove, 101 Digitized by Microsoft® INDEX. 563 DISCHARGE. See Haseas Corpus Act. DISCLAIMER, of interest in lease, in bankruptcy, not affecting lessor and lessee, 131 of invention, retrospective operation, 262 “* DISCLOSURE,” absurd, by a fraudulent agent under Factors’ Act, in bankruptcy, 245 DISCRETION, of the Court, provision that costs shall be in the, construed, 98 meaning of, where something left to be done according to the discretion of an authority, 147—151. See ABUSE oF POWERS. settled by practice should not be departed from, 149 the, given to justices to order outdoor relief implies obligation to summons those on whom order is to be made, 443 “* DISGAVELLED,” land, ‘‘to all intents,” and made ‘‘descendible as lands at common law,” construed, disgavelled only for descent, 404 DISPENSATION, with a provision, where performance impossible, 470. See PERFORMANCE. DISPUTES, between society and its members, 154. Sce ARBITRATION, DISTANCE, jurisdiction over what, from coast, 379, abroad, &c., 174 n. (d), 176, 177 measurement of, formerly by nearest road, 426 now as crow flies, 426 DISTILLERY, 490. See Licence. DISTRESS, Act authorising, seizure unlawful where goods are in custodid legis, 97 remedy given by, when it ousts jurisdiction, 155 in action for illegal, jurisdiction of Superior Court not ousted, 153. See CoMMISSIONER OF TAXES. to levy rate, when justices cannot refuse warrant, 299 unless “‘defaulter proves he is not chargeable,” where rate good on face, 231 party to be first heard, 445 illegal impounding, penalty in 1 & 2 Ph. & M., 240 Act authorising, of corn, grass, or ‘‘ other product,” 408° waiver of appraisement, 475 action on the equity of 2 W. & M. for selling too soon, or after tender of rent, 308 order for, for nonpayment of penalty, when essential to jurisdiction to imprison, 359 w 00 Digitized by Microsoft® 564 INDEX. DISTRESS —continwed. justices empowered to issue warrant ‘“‘on proof of demand and non-pay- ment” of rates, 445 action as well as summary remedy for clandestine removal of goods to avo. distress, 499 the sole remedy for poor rates under 43 Eliz. c. 2, s. 2, 496 DISTRINGAS, abolished without provision for service of writs on lunatics in confinc- ment, 18 DISTURBING, proceedings, implied right to remove from chamber for, 438 congregation, several penalties, 238 DIVORCE ACT, protection order, when successor of magistrate who made it cannot dis- charge,-17 English subjects, abroad, subject to, 172 when not retrospective, 262 DOCK,” dry, rateable as land, 411 damage to, 113. Sce Harsour. DOCKETTING, judgments, hardship, resulting from oversight in Act abolishing, 19 Act restricting operation of judgments not docketed, not retrospective, 263, 264 DOCKYARDS, exempt from land tax, 163. Sce CRown. DOCUMENTS. Sve OnpeEr. production of, affidavit of the party, 16 larceny of, 343 DOG. See Fatse PRETENCES. Act in alternative, for destruction or keeping in control, construed, 232 keeping at noon without licence and paying within an hour, 424 DOMESTIC SERVANT. Sce SERVANT. DOMICIL. Sce PRoPERTY. legacy and succession duty on personalty, dependent on, 178 66 DONE,” notice of action for anything, when omissions included, 86 NPOUBTFUL, ; : preamble referred to, to explain, what is, 55 Digitized by Microsoft® INDEX. 565 LOWER, Act applies to gavelkind, contrary to intention of its framers, 34, 218 widow becoming entitled to, by custom entitled to all its incidents, 428 ‘*land ” construed not to include copyholds, 36 DRAFT. See BANK—BANKER. DRAMATIC COPYRIGHT. Sce Prracy. consent of author in writing to representation by agent sufficient, 87 DRIVING FURIOUSLY, penalty for, 342 DRUG, druggist selling to a brewer with knowledge, &c., cannot recover price, 487 administering, what amounts to, 326 supplying, where the man but not the woman knew the intention, 337 DUBLIN, requirement to sue in, 496. Sce ACTION. DUES, exemption of Crown from, 162. Sce CRown. “DUKES,” 93. See ** Lorps,” DUPLICATE. See Ticker. DURANTE BENE PLACITO, 193. See INCONSISTENT. DUTIES. See ImpureD DuTizs. DUTY. See BuRDENS—MINISTERIAL. Acts imposing, construed strictly, 348. See BURDENS. imposition of one sometimes impliedly imposes another, 441 prescriptions affecting the performance of a, and where relating to a privilege or power construed differently, 452. See IMPERATIVE OR DIRECTORY. “ DWELLING.” See Burpines. riotously demolishing. See DEMOLISH. when it means where a person sleeps, 79 when where he carries on his business, 80 under County Courts Act, principal office of a railway company is its, 80 but not other offices or stations, 80 of a manufacturing company the manufactory or shop and not the registered office, 80 ; of a corporation for fiscal purposes, 81 of foreign corporation, 81 Digitized by Microsoft® 566 INDEX. . “DWELLING ”--continued. “dwells or carries on business,” a personal carrying’ on and not by agent intended,. 402 “dwelling, shop, warehouse, or counting-house,” with reference to felony of breaking into, 407 DYEING, seeds, Sce SEEDS. “DYING WITHOUT ISSUE,” ; two meanings given to the words in the same will, 386, 387 EARLIER ACTS, to be surveyed for elucidation of later, and vice versd, 40, 42. Sce Contuxr. EARNINGS, of bankrupt. What, do not vest in assignee, 236 EASEMENT, See Pew—Prescriprion Act. title to, left inchoate by literal construction of Prescription Act, 10 EAST INDIA COMPANY. Sce Mayor’s Court. repeal by Acts putting end to its monopoly of prohibition against bottomry loans, 198 ECCLESIASTICAL, Court, jurisdiction of, under 27 H. 8, not repealed by 7 & 8 W. 4, c. 34, giving jurisdiction to justices to enforce payment of tithes against Quakers, 204 magnates, as ‘deans, &c., not ‘‘noblemen” exempted from tithe unde Magna Charta, 399 ECCLESIASTICAL LEASES. See Cuurcu. suit for deprivation, not taken away by implication, 104, 105 EDUCATION ACT. Sce ScHoot. EJECTMENT, under County Court Acts, 46. Sce VALUE. EJUSDEM GENERIS, for principles of interpretation of words, and examples, see Worvs. ELECTION, : 7, . : commission, answers admissible to, on indictment for perjury excluded in information filed by Attorney-General, 18 married woman not entitled to vote, 99 “« directly or indirectly,” ‘‘ endeavouring to procure return,” 340 Digitized by Microsoft® INDEX. 567 ELECTION—continued. of officers, prescribed time for, directory, 462 service of notice of objection, 88, 454. Sce VorEr. description of the qualification in the voting paper, 415 implied duties of officers under Ballot Act, 441 regulations for conduct of, under Act directory, 463 Act requiring annual, of aldermen, directory, 465 agent, making payments for candidate, 485. See AGENT. inquiry, self-criminating answers on, to entitle witness to certificate, 279, 280, 393 ELECTOR, meaning of inhabitant, where object to determine qualification of, 79 ELEGIT, omission in Bankruptcy Act in respect of goods seized under, 21 under Stat. Westm. 2, not authorized against heir during minority, 99 EMBEZZLEMENT, gamekeeper selling master’s rabbits, strict construction, 324 agent entrusted with money ‘‘for safe custody,” 325 servant cashing master’s cheque, when a ‘‘receiving on account,” &c., 337 ‘* EMPLOYED,” by Post Office, construction of in penal Act, 339 ENABLING, terms, when compulsory, 287—303 ENCLOSURE ACT, reservation of minerals in, limited by direction that highways should be set out, 30 ENCROACHMENT ON RIGHTS, Acts strictly construed, 346—348. See Ricut. ENGINE. Sce OBSTRUCTION. ENGLISH SUBJECTS ABROAD, 169, &c. Sce JuRISDICTION. ENGRAVING, copies by photography within Act for protecting copyright in, 94 copyright, date of publication imperative, 453, 488 ENGROSSMENT, of Bills in Parliament, 51 Digitized by Microsoft® 568 INDEX. ENLARGEMENT, of time for award, power of J udge for, extends to all references by judicial order, 91 ENLISTMENT. Sce Foreign ENuistment Acts. enactments as to questions to be put to recruit on, directory, 465 ENTAILS, special parliamentary, not affected by Fines and Recoveries Act, 216 but included in Lands Clauses Act, 219 ‘ ENTERTAINMENT,”’ in Act relating to houses for public refreshment, &c., excludes theatrical and musical performances, 399 ENTRY, fictitious rights of, 38 H. 8, c. 9, s. 2, as to, not repealed by 8 & 9 Vict. c. 106, s. 6, 208 on land, power for, implied from grant of trees, 435 EQUAL, rates to be, 148 when no obligation to demand equal tolls, implied, 475 EQUITABLE CONSTRUCTION, 306—317. See Equrry or a Stature. rule formerly as to remedial statutes, 306 cases out of letter to be brought within, if within mischief, 306 in the sense of being synonymous with the intention of Legislature, free from objection, 307, 308 EQUITY OF A STATUTE, 306—317 ° senses in which sometimes used, 307—309, 315 in old statutes understood as extending to general cases enactments limited to special ones, 309—310 reasons for such construction, 310 applied to more modern Acts, 311 :— provisions of 21 Jac. c. 16, s. 3, limiting actions to six years ‘‘and not after,” 311 of Statute of Frauds in respect of agreements not in writing where part performance, 311, 312 deeds and wills not registered under Register Act, 7 Anne, c. 20, 313 wills of stock unattested, 313 such construction now to be considered as discarded, 310, 314 condemned by Judges, 314 where modern statute strictly in pari materia with one already equitably construed, 314 dicta that a statute contrary to natural equity or Magna Charta is void not to be supported, 316 Digitized by Microsoft® INDEX. 569 EQUITY .OF A STATUTE—continued. contract in which director of company concerned valid in law, but not in equity, 489 EQUITY OR REASON, statutes contrary to, 315, 316 ERRONEOUS BELIEF. See IGNoRANCE. ERROR, of law or fact in a statute does not alter law, 376—383. See STATUTES. unless the change was clearly intended, 381 recitals in, whether of fact or law not conclusive, 381 unless clearly intended, law or fact should be regarded as recited, 381 on judgment on special case not retrospective, 273 ESQUIRE. See GAME. ESTOPPEL of person from deriving benefit from an enactment, 479 EVASION, construction to prevent, 133—146, 237 should be to defeat all attempts to do or avoid indirectly what is prohibited or enjoined, 133 :— Usury Act applied to disguised usurious loans, 134 wagers, 135 Act prohibiting plays without licence, 135 newspaper apologies for libel, 135 evasions of Bills of Sale Act, 135, 136 Acts protecting monopoly of Bank of England, 136 covenant not to assign, broken by giving warrant of attorney to confess judgment, 137 bequests, &c., to evade Mortmain Act, 138 cases under Poor Law of colourable renting, 139 and fraudulent removals to gain settlement, 139 what is actually or virtually prohibited or enjoined by the language must not be confounded with what is really beyond the contemplation, though within the policy of the Act, 141 no obligation not to do what Legislature has not really prohibited, 141 Examples of no evasion of statutes, 141—145 hiring servant for less than year to prevent a settlement, 141 cases under Mortmain Act, 141, 142 it is not evading an Act to keep outside of it, 142, Examples -— selling beer off the premises, 142 Digitized by Microsoft® 570 INDEX. EV ASION—continued. Examples :— : occupier of field by making road in it with gaps avoiding turnpike toll, 142 avoiding harbour dues by landing goods just outside, 143 gift by deed having essentials of a legacy, 143 creditor, enactment in respect of proceeds of goods sold in execu- tion exceeding £50, 143 Income Tax Act, 143 . enactment against company raising money by loan, 144 Act of 13 Eliz. c. 20, against charging benefices, 144 Bills of Sale Act, 145 an evasion or breach of an Act has been suffered where intolerable incon- venience would otherwise result, 145 : and justified on ground of convenience, where questions of sufficiency of ~ stamp arise at trial, 237 widest meaning given to words when needful, 351 ‘‘repairs” of church to be met by rate extended to incidental matters as lighting, cleaning, &c., 351 any construction facilitating, to be avoided, 237 ‘EVERY CONVEYANCE,” enactment for, to be valid, construed not to cure defect of title, 101 “EVERY MATTER IN DISPUTE,” reference of, construed, 106 ‘* EVERY PERSON.” Sce PERSON. EVIDENCE, of bankrupt. See BANKRUPTCY. of mother essential to jurisdiction for bastardy order, 11, 12, 473 unstamped document and “slip,” on collateral questions, 132 absurd “disclosure” of fraudulent agent under Factors Act in bankruptcy, 245. See OATH. time for deciding what is or what is not, when trial takes place, 267 Lord Tenterden’s Act retrospective, 267 enactment declaring maps under Tithe Commutation Act, ‘‘ satisfactory evidence” of matters therein stated, 102 EXAMINATION, in bankruptcy, 245. See OaTH. EXCEPTION, or saving clause. See PROVISO. in bill of lading, against liability for breakage, 247 * EXCEPTIONAL, exemption, 356. See MoNOPOLIES. Digitized by Microsoft® INDEX. 571 EXCESS OF JURISDICTION, presumption against legislature intending, 168—173. Sce JURISDICTION. EXCHEQUER, right of Crown as to proceedings in Exchequer in revenue cases, &c., not affected by County Court and other Acts, 164 power of, to make rules of practice, &c., to grant appeal to Exchequer Chamber not authorised, 358 EXCISE LICENCE, 201, 202, 329, 490 certificate for, directory, 468 EXCUSE, of performance of conditions. See PERFORMANCE. EXECUTION, choses in action and copyholds now seizable in, and within stat. 13 Eliz. ch. 5, 94, and see 76 provision of Statute of Frauds as to, not applicable to Crown, 165 EXECUTORS, of persons abroad, with right of suit ‘‘ after they return,” dying abroad, 275 EXEMPTION, express, of Crown from wharfage dues, and Queen’s carriages from turn- pike tolls, not suffered to affect its prerogative, 380 in statutes, from duties to be liberally construed, and operation of Act confined, 350. Sce BURDENS. statutes granting, strictly construed, 356. Sce Monopro.izs. from responsibility for damage, when the act doing it is authorised, 435 EX OFFICIO OATHS, how abolished, 194 EXONERATION, from duties, See EXEMPTION. EX PARTE PROCEEDINGS, ; literal construction of statute authorising, against seafaring man absent beyond seas, 15 by trustee to prosecute bankrupt, 448 implied duty, in general, not to proceed judicially ex parte, 443. See HEARING. EXPENSES, agent for, at elections, 485. Sce AGENT. discretion to allow, confined to legal, 148, 287, 288 Digitized by Microsoft® 572 INDEX. EXPIRED ACTS, in part materia, to be considered in construing statutes, 44—46. See ConTExt. operation of, 510, See REvivAL—PENAL ACTS. EXPRESSIONS, meaning of some particular, 420—428, EXPRESS WORDS, on account of, to authorise signature by agent, his acknowledgment in- sufficient to bar Statute of Limitations, 46 EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS, 379, 398 EXPRESSUM FACIT CESSARE TACITUM, 440 whev principle inapplicable to implied duties, 440 EXTERNAL CIRCUMSTANCES, 24, 27—35 to be considered, 27 their function limited to suggesting a key to true sense, 32 rule as to admissibility of extrinsic evidence of surrounding facts to explain documents applies to statutes, 28. Zxamples, 283—34 :— Charter-party ; warrant of seaworthiness ; covenant for repair ; warranty on sale of horse, 29 guarantee, 30 American and English Foreign Enlistment Acts, 30 Act for abolition of slave trade, 31 ordinance of Hong Kong for extradition, 31, 275 Act authorising ‘‘ the Court” to give costs, 31 acts done under a statute may sometimes be taken into consideration in construing it, 35 EXTRA PAROCHIAL. See Rare. place, Act declaring parish not to be an, not retrospective, 259 EXTRA TERRITORIUM JUS DICENTI IMPUNE NON PARETUR, 168 EXTRADITION. See Cutna. American, committing crime in Holland and flying to England, regarded as Dutch subject, 168, u. (6) EXTRINSIC EVIDENCE, to explain statutes. Sce EXTERNAL CIRCUMSTANCES. FACTORS’ ACT, enactment in, that ‘‘ any agent intrusted, &c.,’’ shall be deemed owner, cou- fined to mercantile agents and transactions, 105 Digitized by Microsoft® INDEX. 578 FACTORS’ ACT—condinned. when ‘‘ goods and merchandize” in, do not include shares or stock, 400 “disclosure,” by fraudulent agent, on examination in bankruptcy, 245 FACTORY, what accidents in, to be reported, 340 action for, by party injured, as well as by inspector, 206 FAILURE OF JUSTICE, when notwithstanding, or hardship, the formalities of statutes must be complied with, 10 when ground for extending remedial enactments beyond their language, 90 FALLACY OF LITERAL CONSTRUCTION, 24—27 FALSE PRETENCES, obtaining by, 325 ‘‘credit on account” not ‘‘ chattel, money, &c.,” 325 nor dog, 325 attempting to obtain money from banker, 325 giving cheque for goods where no assets, 338 FARE, railway bye-law for recovery of, from traveller without ticket construed, 498 FARMER, prohibited from selling butter except in firkins of certain size, &c., 488 FEE, seised in. Sec TENANT. fee simple in soil of pews and streets, construction of enactments as to, 108, 109 FEES, power and time for justices to settle table of, how far imperative, 483, 484 FELONS, transported and obtaining remission, property for which they can sue, 58 ‘“FELONS AND OTHER OFFENDERS,” extended to deserters, 60 FELONY, Act creating, impliedly creates offence of accessory, 428 offence made punishable by ‘‘ judgment of life or member,” made, 427 reduced to misdemeanour by change of punishment, 224, 225 FEMININE WORDS. Sce GenpeER. - included in masculine, 420 Digitized by Microsoft® 574 INDEX, FENCING RAILWAY, to whom right of action for neglect extends, 504 FI. FA, provision in Act against prejudice to bond fide purchaser’ by, before seizure, not retrospective, 263 ‘FINAL JUDGMENT,” 68, n. (5) FINE, 494. See Common Law. ‘FINE AND RANSOM,” 427 FINES AND RECOVERIES ACT, inapplicable to Parliamentary special entails, 216 clerical omission in, supplied, 304 FIRE INSURANCE, section in Local Act applied generally, 59 FIRKINS, selling butter in, 488. Sce FARMER. FISCAL, statutory regulations unconnected with contract not vitiating it, 490 FISH. See Die—Founp. ‘‘taking or destroying ” spawn, construed, 403 ‘‘take or kill” fish, 403 FISHING BOAT, penalty for one injuring another, compensation, 502 ‘ FIXTURES,” when deeds comprising, must be registered under Bills of Sale Act, 110, 111 FOREIGN ATTACHMENT. See Mayor’s Court. not applicable to rules of Court, 43 FOREIGN CORPORATION, with establishment in this country, residence of, §1 FOREIGN ENLISTMENT ACTS, history of, applied to their construction, 30 employing a tug to tow a prize to captor’s waters, within enactment against ‘dispatching a ship,” &c., 340 FOREIGN FUNDS. See Stock Josppine Act, Digitized by Microsoft® INDEX. 575 FOREIGN SHIP. See Suir. within English port, 168 Act giving salvage for lives not applicable to, on high seas, 177 Act authorising seizure of all ships engaged in slave trade, inapplicable to, 176 seamen of, may sue in Admiralty for wages, 185 not entitled to claim English sailing rules against English ship on high seas, 185 Admiralty Act, 1861, ss. 4 & 5, relating to claims for building, &c., not extended to foreign ships, 185 . a maritime lien impliedly created in respect of necessaries supplied to, 429 FOREIGNER. Sce Forrian Sup. laws of a nation apply to all foreigners within its territories, 169 except as to some questions of status, &c., 169 how far affected by statutes conferring rights, 181—185 how far such extend to foreigners abroad not clear, 181 whether comprehended where persons filling character of which foreigners are capable are mentioned, 181 author, if resident abroad, not entitled to copyright, 182 aliter if resident in England when work published, 182 jurisdiction of Admiralty in action by personal representative of, killed on board a foreign ship in collision with English, questioned, 183 7 &8 Vict. c. 101, inapplicable to foreign woman giving birth to illegitimate child abroad, 183 aliter when child born in England, 183 Act of 1862 limiting liability of shipowners for damage without their own fault inapplicable to foreign vessels, 183, 184. aliter to protect British in suit by foreign ship, 184 Admiralty jurisdiction over claims, &c., unless owner domiciled in England, confined to British ship, 185 Statute of Limitations applies to, 185 jurisdiction of Admiralty in respect of seaman’s wages, 185 foreigner allowed by his own law to trade in slaves, held entitled to sue here, 176 not liable for offences committed out of British territory, 174 nor whilst in foreign ship on high seas, 175 nor for manslaughter committed in foreign ship within three miles of coast, 378 notwithstanding several Acts had assumed jurisdiction within that distance, 379 : not liable to be made bankrupt for act committed abroad, 177 aliter if committed in England, 177 his personal property subject to bankrupt and fiscal laws, if heis domiciled iu England, 178 Digitized by Microsoft® 576 INDEX, FOREIGNER—continued, Legacy and Succession Duty Acts inapplicable to, 178 but aliter if deceased domiciled in England, 179 his claim not barred under Interpleader Act, 179 affected by the laws of procedure, 184 when included in enactment relating to persons, 76 Statute of Frauds enacting ‘‘no action shall be brought” on verbal con- tract, held fatal to action on a foreign contract, 180 but the decision questionable, 180 FORFEITURE, to Crown, or to injured party, 427 of body and goods, judgment of, in old statutes means misdemeanour only, 427 FORGERY, tautology in expressing, 385 engraving Scotch notes in England, Act ‘‘not extending to Scotland,” 233 FORMALITIES. See Forms—GENERAL RuLES—REGULATIONS. required by statute, when not to be disregarded, 10, 487. See Rzcvu- LATIONS. directors of incorporated company, though empowered to make contracts, not allowed to dispense with, 105 of marriage, statutes regulating, 71 required by Statute of Frauds applied to suit on contract made abroad, 180 under Companies Clauses Consolidation Act, form for contracts, im- perative, 455 where part performance, aliter, 455 prescribed for acts and contracts by companies, &c., imperative, 456 where duty imposed on Court, imperative, 458 for contracts by Board of Health, 469 where powers or privileges are granted with directions for, to be complied with, they are imperative, 452, 453 for mortgage of ship, imperative, 455 required to contracts, &c. Sce IMPERATIVE oR DIRECTORY—INSTRUMENT —COoRPORATION. FORMS. See FormMALiITies—GENERAL RvLES—REGULATIONS, connected with contracts, 487 of contract, under Statute of Frauds, strict construction, 352 under Merchant Shipping Act, 455 “ FORTHWITH,” implies reasonable time, 428 Digitized by Microsoft® INDEX. 577 FOUND, ‘* found in possession”? of young salmon, knowledge of possession, but not that fish were salmon, 120, v. (a) lying on highway, cattle, 45, 389 on premises for ‘‘ unlawful purpose,” 326 FRACTIONS OF A DAY, when regarded, 424. See TIME. FRAMER OF ACT, intention of, 32, 34 FRAUD, documents impugned on ground of fraud or illegality, when admissible in evidence, though unstamped, 132 concealed, 7, n. (d), § FRAUDS, STATUTE OF, writing sufficient to satisfy, 352354, See ConrracT—SIGNATURE. construed strictly, 352 ‘goods’ in 17th section, 47, and see Goons. provision of, as to execution, not applicable to Crown, 165 subscription of attesting witness to will, elsewhere than at end, 355 signature of corporation to agreement under, when by chairman sufficient, 355 ‘*no action shall be brought,” extended to foreign contract, 180 not retrospective, 258 equitable construction of, in cases of part performance of agreements re- quired to be in writing, 311 penalty for not returning sales of corn, though contracts not in writing, 339 FRAUDULENT, agent, ‘‘ disclosure” by, 245. See OATH. prospectus, 501. See PRosPEcTus. removal by parish officers of pregnant woman, effect of, on settlement of bastard, 139 FREEHOLD, in soil of pews and streets, 108, 109 FRIENDLY SOCIETY, action by, how affected by repealing Act omitting to provide for pending claims, 512 removal of pauper member of, 210 ‘‘every matter in dispute” between a society and any of its members, reference of, construed, 106 PP Digitized by Microsoft® 578 INDEX. FUNDS, foreign. See Stock Joppine Act. FURNACE, negligent use of, 247, See SMOKE. FUTURE PROPERTY, construction of Bankrupt and Insolvent Acts as to the vesting of, in assignee, 130 GAME, literal construction qualifying the eldest son of an esquire to kill, but not the father, 14 trespassing in search of, &c., offenders liable to separate penalty, 239 enactments against pursuit of, on land of another without consent of owner, 117, 118, 123 keeping a dog for destruction of, joint penalty, 239, 240 having in possession, after last day of the season, 276 searching suspected poacher, 283 to authorise summons, “seizure” of game by constable necessary, 326 nature of lord’s right of shooting over waste, 377, 378 using instrument for destroying on Sunday, 336 trespass on land, firing from highway at, 338 “using” gun with intent to kill, 338 “taking,” when only snared, 338 GAMEKEEPER. See EMBEZZLEMENT. who entitled to grant deputation under 22 Car. 2, 418 GAMING.. See Pustic Houses. bills for money lost at play, 9 Anne, c. 14, as to, restricted, 250 construction of statute as to bankrupt’s contracts, 339 losses at a ‘single sitting,” two meanings given to, according as suit for by loser, or for penalties, 387 house, penalties for being found in, to whom payable, 221 ‘¢ suffering ” to go on in house, 336 GAS, 54 Works Act, meaning of rent in, 68 company, effect of Metropolitan Gas Act of 1860, on special Act, 220 no implied authority to draw pills, 438 meaving of, in fire policy, 74 pollution of well by washings, 122. See CoMPANy. works, fouling water, implied repeal, 227. GAVELKIND, lands, included in Dower and Inclosure Acts, 34 Digitized by Microsoft® INDEX. 579 GENDER, in statutes passed after 1850, masculine, includes females, 420 the enactment inoperative to give married women right of voting, 99 GENERAL ACT, 212—222, See LocaL—SPECIAL. to be construed as not repealing one directed towards a special object, 212 as not to abrogate an earlier special one by mere implication, &c., 212 Examples ;— local bridge, exempting from, not repealed by later general imposi taxes, 213 when county courts, under right to try ‘‘all pleas,” acquire no juris- diction, 214 provision of Judicature as to obtaining judgment by motion not affecting signing, under County Court Act, 215 leases of turnpike tolls not required to be by deed under 8 & 9 Vict. c. 106, 215 persons having parliamentary privilege from arrest not affected by Bankrupt Acts, 215 personal statutes and local customs, when unaffected by general Acts, 216 —218 Examples :— Act authorising tenants in tail to bar their entail, inapplicable to special entails, as the Wellington, &c., 216 Middlesex registration not repealed by Act for registration of judgments in Common Pleas, 216 disqualifying custom or local law not repealed by Act authorising sale by ‘‘any person,” 216 Act as to service as jurors of court not extended to hundred by custom exempt, 217, 218 Act empowering hawkers to set up where they resided, custom not affected, 217 special railway not affected by general Act giving same powers to public body, 217 Act authorising lord of manor to break up streets not affected by general vesting streets in public body, 217 the maxim generalia specialibus, &c., inapplicable where a different inten- tion is shown, 218 Examples ;— Prescription Act in respect of light abolishing a custom of London, 218 Dower, 218 and Inclosure Acts apply to gavelkind lands, 219 Act limiting arrest in county palatine impliedly repealed by general Act, 219 Mortmain Act extended to corporation empowered, &c., 219 general Act entitling tenants in tail to convey applies to special parliamentary entails, 219 acquisition by county courts of an exclusive jurisdiction under local Act, 220 ; pPPp2 Digitized by Microsoft® 580 INDEX. GENERAL ACT—continued. local Act for maintenance of prisoners superseded, 220 provisions in City repealed by Metropolis Gas Act, 220 to avoid repeal penalties under police Acts differently payable, 221 incorporated into special provisions of latter prevail, 221 rule when Act on one subject incorporates provisions of another on a different one, 222 GENERAL ALTERATIONS of law, presumption against, 97, 103 GENERAL AND PARTICULAR INTENTION, where inconsistent, 91, 92, 196 GENERALIA SPECIALIBUS NON DEROGANT, 212. Sce GENERAL Act. GENERAL POLICY, test for deciding whether disregard of prescribed regulations invalidates a contract, 487 GENERAL RESOLUTION, or rule of practice, to act on, not a fair exercise of discretionary power, 149—151 GENERAL RULES and forms, made under Act enacting that they should have same force as if included in it, 44 GENERAL WORDS. Sce Worps. indefiniteness and elasticity of, 25, 26 to be adapted to the subject-matter, 75 if not express and precise, to be restricted to the fitness of the matter, 75 construed, strictly limited to the immediate objects of the statute and as not altering general principles of law, 96 extended to meet evasions, 132 GENERI PER SPECIEM DEROGATUR, 297 GENERIC WORDS, following more specific, 405 for principles of interpretation and examples, see Worps. GENUS, . ; ; statute dealing with, extends to species when they come into existence, 93 ‘« GIFT,” coupled with delivery or transfer, qualifies the latter words, 400 GIFTS > of estates by ecclesiastics. Sve LEASES. GLOVES, landing, without paying duty, when an offence under Act of Anne, 329 Digitized by Microsoft® INDEX. 581 GOODS. See SroLey Goops—Fatsz PRETENCES—PARIsH OFFIcER. captured, Act for deduction of duties on, not retrospective, 260 meaning of, in Bankruptcy Acts and Statute of Frauds, 47, 399, 400 in prohibition against supply of, by parish officer, 69 in 13 Eliz. c. 5 choses in action not included, 76 person demanding with threats bond fide believing them his own, 116 coupled with wares and merchandize, in Factors’ Act, 399, 400 in custodid legis, Act authorising distress no authority for seizure, 97 “* agents intrusted with possession ” of, meaning construed, 105 ‘other goods, chattels, and effects which shall be in the house,” not including money, 409. See Stock. carriage of dangerous, by railway, 119 penalty on every person assisting in unshipping prohibited, 241 sale of, abroad, to be smuggled to England, 487 GRAMMAR, words and phrases to be construed according to rules of, 2 words to be construed in sense which, if less grammatically correct, is in harmony with meaniug, 24 GRANTS of estates by ecclesiastics. Sce LEASES. GRATUITOUS assistant of postmaster, a person employed ‘on behalf of post office,” 339 GREYHOUND, keeping, joint penalty, 239, 240 GRIEVANCE. See Pusuic. GUARANTEE, when stamp on, not required, 350. Sce Stamp. GUARDIANS. See ParisH OFFICER. Board of, not made invalid by one parish refusing to elect, 461 GUILTY MIND. Sce Mens Rea. selling bread as unadulterated, though ignorant of adulteration, liability for, 38 generally an essential element in breaches of criminal law, 115 GUN, using, with intent to kill game, 338 GUNPOWDER, sending by rail without marking the package, 119 ‘*having or keeping,” 403 Digitized by Microsoft® 582 INDEX, HABEAS CORPUS ACT, enactment in, against recommitments for ‘‘ the same offence,” 103 where new offence tried in inferior court, 158 HABITUAL CRIMINALS ACT, 20. Sce StoxzN Goons. HACKNEY CARRIAGE, in 6 &7 Vict. construed as in] & 2 W. 4, 389 HALE, LORD, his opinion as to burglary, 335 HARBOUR. See Tou. Act, liability of owner of vessel for damage done by it to harbour, restricted by scope of, 113 in local Act, in respect of landing goods, ‘‘any quay, wharf, &c.,” restricted to where right of way, 347 throwing rubbish into, implied repeal, 226 HARDSHIP. Sce 266—268 resulting from literal construction, 7—9 from omission, 19 ; what, presumed not to be intended by legislature, 248 argument from, dangerous, 248 HARMONY with international law, statutes to be construed in, 173—180. See InTER- NATIONAL Law. “HAVE OR KEEP” gunpowder, 403 ‘having or conveying ” goods suspected stolen, 403 HAYSTACKS set fire to by locomotives on railways, 435 HEADINGS of sections in modern Acts, regarded as preambles, 65 of section of Bankrupt Act referred to to show that the traders defend- ants intended were traders who became bankrupt, 54 “HEARD AND FINALLY DETERMINED,” below, enactment to the effect that case shall be, how affecting jurisdiction, 153 HEARING, _ right of, an implied condition for the validity of orders, &c., 443—447 obligation implied for bishop to give incumbent a, before issuing requisition to appoint curate, 445 : Digitized by Microsoft® INDEX. 583 HEARING—continued. so implied before removal of person for lawful cause, 446 aliter where removable arbitrarily, 446 so impliedly given to an appellant, 446 under County Court Act in respect of orders to pay by instalments or be committed, 446 when power of immediate commitment given, 447 when opportunity for a defence at a future stage, 447 order in respect of settlement of lunatic pauper made without notice to parish, 448 HEIR, apparent of an esquire. See GAME. «ce HELD,” construed differently from ‘‘ occupied,” 396 HEREDITAMENT, confined to habitable structures where used with ‘‘ house,” 410 HIGHWAY. See STREET. using for an unlawful purpose is a trespass on the soil of, 338 HIGHWAY ACT. Sce Surveyor or Highways—BIcycir. indictment ‘‘ preferred,” 31, 71 cattle found lying on, 45, 389 discretion of justices to allow ‘‘ expenses,” 148 notice of action and limitation of time, how far controlling, 24 Geo. 2, as to, 207 diversion of road nearer ‘‘ or”? more commodious, 286 surveyor, bond fide, demanding higher fee than allowed, 107, 108 penalties under, on ‘‘ rider,” and ‘‘ driver,” for furiously riding or driving, 340 HIMSELF, omitted in Act, 90, n. (a) HISTORY of statute to be considered, 27, 28. See EXTERNAL CIRCUMSTANCES. HONG-KONG. See Cuina. HORSE, stealing ‘‘ horses,” whether including stealing one horse, 321, 393 limited meaning of, when associated with ‘‘ ponies,” 397 receiver of stolen, when not accessory to stealing, 328 HORSEGUARDS. ‘See Crown. Digitized by Microsoft® 584 INDEX. ‘* HOSPITAL,” construed in popular and not legal sense, and to include asylums, &c., 70 what corporate bodies disabled from founding, 100 HOUNDS, penalty on unqualified person keeping, 239 HOUSE. See CHAMBERS. burnt down by neglect of Water Company to keep pipes charged, 505 “houses, buildings, and property other than land,” what rateable as, 411 setting fire to, to gain insurance, Act to deter from, not restricted by preamble, 59 of Keys. Sce Manx. and fixtures, mortgage of. See FIXTURES. riotously demolishing, 342, 343 whether, in burglary, a church is, 335 term in, when construed not personal estate within bill of sale, 409 “HOUSE, ROOM, OR PLACE,” in Betting Act, 85, 86, 415, 416 for public refreshment, &c., and entertainment, how construed, 399 in burglary, including a church, 335 HUNTING, shooting, and fishing, meaning of grant of right of, 405 HUSBAND, of lunatic wife, ill-treating her. See Lunatic. when ill treated wife refuses to live with, nevertheless exempt from punish- ment, 324 IDIOT. See CHILDREN. IGNORANCE, of law, or erroneous belief of a fact essential to offence, how far material, 117—124 absence of mens rea, established by, 118. See Mens Rra. Examples :— girl not abducted against the wish, &c., by one who did not know of their existence, 118 under Contagious Diseases, &c., Act, person not giving notice liable only when he knows animal diseased, 118 where agent sent by railway dangerous goods in ignorance of nature, 119 where it was proved that person had reasonable means of know- ledge that goods bore Government mark, 120, 123 aliter for having adulterated tobacco in possession where the adulteration not known, 120 Digitized by Microsoft® INDEX, 585 IGNORANCE—continued. ignorance or mistaken belief where act done is in its nature a breach of the Jaw no excuse ; where in bigamy a woman believes her husband dead, 121 abducting a girl under sixteen, where offender believes her to be older, 121 ; assaulting police officer in plain clothes not knowing him to be an officer, 122 receiving lunatics in unlicensed house in belief that they were not so, 122 under an enactment against pollution, where washings percolated through a gas tank without the knowledge of the company’s servants, 122 ILLEGAL ACTS, done or neglected under colour of a statute, when protected, 278 illegal oaths, Act against, not restricted by its preamble, 58 ILLEGAL IMPOUNDING, penalty for, compensation, 240, 502 ILLEGALITY, i contracts affected by, 483. See FrauD—ConTRACT—PENALTY. ILLEGITIMATE CHILDREN. See CHILDREN. ‘“ JIMMEDIATELY,” implies reasonable time, 423 IMMUNITY, when statute confers, the regulations, forms and conditions it imposes are imperative, 453 IMPAIRING OBLIGATIONS, construction having effect of, to be avoided, 252—257. See OBLIGATIONS. IMPERATIVE OR DIRECTORY, 450—470 when something is required by statute to be done and no express declara- tion of consequences of noncompliance, the intention to be inferred, 450 w command to do a thing implies a prohibition against doing it when other- wise olject of legislature would be defeated, 450 Examples :— Metropolitan Building Act, for the construction of buildings of incombustible materials impliedly prohibits any other way, 450 rubrics, 450 deed of married woman to take effect ‘‘when” certificate of acknow- ledgment filed, 450 no appeal, ‘‘ unless,” &c., 451 Digitized by Microsoft® 586 INDEX. IMPERATIVE OR DIRECTORY —continued. whether any other rule than that the question depends on the scope and object of the enactment, 452 : distinction between directions affecting a privilege or power and a duty, 452 where right, privilege or immunity conferred, regulations are imperative in sense that non-observance of them is fatal, 485. Examples :— neglect to engrave proprietor’s name and day of publication on prints fatal to copyright, 453 to proprietor’s right to sue for infringement, neglect to enter at Stationers’ Hall, title and time of publication, &c., 453 an innkeeper’s exemption from liability since the Act of 26 & 27 Vict. depends on his posting up the notice required by the Act, 454 see also other examples of formalities required relating to confinement of lunatics, 455 notice of objection to voter, 455 registration of transfer of ships, 455 form of contracts by companies, 455 their borrowing powers, 456 attestation of proxies, 456 enactments regulating procedure in courts, usually imperative, 456 where appeal given on condition of giving notice, entering recognizances, &c., noncompliance fatal, 457 under 57 Geo. 3, uv. 99, prohibiting action against clergymen until notice delivered to Bishop ‘‘ by leaving same at registry of diocese,” delivery to the deputy-registrar insufficient, 457 County Court rule for delivery of summons to bailiff forty days before returns in actions for land, 457 where observance of formalities is a duty imposed on court or public officer, they seem in general imperative, 458 arrest void from breach of requirement under 5 Eliz. c. 5, for writ to be brought into Queen’s Bench and opened, &c., 458 where warrants to be issued under seal not sealed, person obtaining it liable in damages for arrest, 458 provision of Public Worship Act as to time for sending representative to inculpated clergymen by Bishop imperative, 458 effect of variation between boundaries of parish declared “fixed”? in advertisement and award, 459 enactment for convictions to be in certain form peremptory, 459 deposit of valuation lists, 459 regulations where they are for performance of public duty, and serious general inconvenience would result if acts done under them were invalidated, seem to be directory, 459, 460. neglect of them may be penal, but the validity of acts done under them is not affected, 460 :— Digitized by Microsoft® INDEX. 587 IMPERATIVE OR DIRECTOR Y—continued. provision in 13 Hen. 4, c. 7, requiring justices to try rioters ‘within a month,” directory only in respect of the trial, but penal on justices, 460 list of voters to be delivered by one officer to another on or before, &e., 460 Board of Guardians not invalidated by neglect of parish refusing to elect, &c., 461 time for Bishop to direct surveyor to report under Ecclesiastical Dilapidations Act, 461 convict imprisoned in place not appointed by Act, 461 absence of remedy for noncompliance with direction no impediment to such construction, 462 directions as to time for justices to hold sessions, 462 to settle table of fees, 463 - for appointing overseers, 462 for election of churchwardens, 462 of aldermen, 465 , regulations for elections under Ballot Act, 463 provisions in commission of peace prohibiting justices from acting unless they have taken oaths directory, 464 questions to be put to recruit on enlistment, 465 particulars in form of poor rate except signature at foot, 465 publication of rates under Public Health Act, 466 registration of bill of sale unstamped when produced, 466 notice of filing insolvent’s petition, 467 requirement for security when Quarter Sessious appoint treasurer, 467 what formalities in keeping register of shares directory, 467 of mortgages, 467, 468 production of the overseer’s certificate of residence to licensing officer, 469 registration of convictions for sporting, 469 sealing contracts under Public Health Act imperative, 469 but requirement for board to obtain surveyor’s estimate beforehand directory, 469, 470 IMPERIAL MEASURE, Act requiring sale by, when inapplicable abroad, 171 IMPERIAL REMEDIES. See ReEMEDIEs. IMPLICATION, repeal by, 186—198, 225—229. ce REPEAL. jurisdiction given by, 159, 160. Sce JURISDICTION. taken away by, 154 IMPLIED DUTIES, | often result from concessions of privileges or powers, 439 Digitized by Microsoft® 588 INDEX. IMPLIED DUTIES—continued. Examples :— power to dig up streets to make a drain, impliedly imposes duty of filling up again, 439 obligation to give notice of needed repair to one liable to keep in repair work in another’s possession implied, 439 to take tolls, binds to keep in repair, or warn of non-repair, 439 to make public road for private profit, implies duty to repair, 439, 440 and to protect public from danger, 440 implied duty not excluded because express duties are imposed, 440 railway company impliedly bound, to prevent passage of highway intersected by level crossings when dangerous, 441 to pull down one house does not impliedly require hoarding for the ° next, 441 express imposition of one duty sometimes impliedly imposes another, 441 obligation implied for justices to state on which of four specified grounds they refuse license, 441 thrown on returning officer by Ballot Act, 441 a duty or right cast on one, may impliedly cast a burden on another, 442 proviso in Commission of Peace impliedly requires judge to give his opinion, 442 so Charity Commissioners impliedly required to give approval, 442 judicial powers impliedly impose the duty of exercising them in accordance with the fundamental rules of judicial procedure, 443—449 a no order for outdoor relief can be made by justices without those on whom it is to be made being summoned, 443 so before they can order railway company to pay special constable, company is entitled to notice and to be heard, 444 other instances wherein judicial powers have impliedly imposed the duty of giving a hearing, 444447, &c. Sce Hearrne. commitment for non-payment, when payment is to be immediate, 447 or where defence is provided at a later stage, 447 two or more justices or others empowered to do a judicial, as distinguished from a ministerial act, are impliedly required to be all personally present, 449 aliter where act ministerial, 449 new jurisdiction given to existing court to deal with new matter in different mode and procedure is to be exercised according to general powers in- herent in court, 449 obligation to exercise power to do judicial act when occasion arises, 449 IMPLIED ENACTMENTS, 428—432. See LoctcanL Consequences. IMPLIED JUDICIAL DUTIES, 443—449. See Impurep Duriss, IMPLIED OBLIGATIONS, 483. See ImptieD Duis. Digitized by Microsoft® INDEX. 589° IMPLIED POWERS AND DUTIES, 433. See ImptieD Po wers—Impuirp Duries—HEaRING. IMPLIED POWERS, and obligations, 433—449 where jurisdiction is conferred, power to do everything essential to its exe- cution implied, 433— justices impliedly empowered to enforce obedience by commitment in certain cases, 433 an inferior Court empowered to grant injunctions to punish disobedi- ence by commitment, 434, &c. to annex penalty for infringement of byelaws, when authorised to make them, 433 to appoint returning officer ; assistant overseer ; special bailiff, 434 to charge county with the costs of disputing fine, 435 where powers, privileges, or property granted, everything indispensable to exercise or enjoyment implied, 435 to erect scaffold on stranger’s land when authorised to build there, 435 where construction of a work, or use of a particular thing authorised, exemption from liability, &c., implied, 435— haystacks fired by locomotives on railways, 435 trustees authorised to execute work, impliedly authorised to prejudice rights, &c., 436 but such powers are impliedly required to be exercised with due skill, &c., and to prevent needless mischief, 436— power to establish asylum no authority for a small pox hospital, 436 no powers given by implication not absolutely essential to the privilege, &e., granted, 437— from power to construct sewer on another's land, no right to lateral support implied, 437 to dig in river for one purpose, does not authorise digging for another, 437 to make railway, does not imply power to use locomotives on it, 437 no implied power in railway and other companies to draw bills, 437 no implied power in colonial legislature to commit for contempt, 438 vesting of land for public purposes implies no power to conveyaway, 439 prohibition of bathing except from machines, gives no right to place machine on shore without owner’s consent, 439 concession of privileges or powers often carries with it implied obligations, 439 ; for examples, see IMpLIED DUTIES. grant of privilege or property to one, sometimes gives right to another, 442— Act empowering hospital to hold land by will, &c., without incurring penalties of mortmain confers power to devise to it, 422 put power to railway company to purchase, would imply no power to another company to sell to it, 442, 443 JMPLIED REMEDIES, 493—508. Sec RemeEpizs. Digitized by Microsoft® 590 INDEX. IMPLIED REPEAL, 186—198. Sce REPEAL. in penal acts, 222—229 IMPOSED BY STATUTE, construction of statutes, 374-376. See STATUTE. IMPOSING BURDENS, statutes, subject to strict construction, 346. See BurpENS—RIcuHr. IMPOSITION, of penalty, whether object of statute sufficiently attained by, 487 IMPOSSIBILITY, when dispensing with performance, 471. See PERFORMANCE. IMPOUNDING ANIMALS ACT, relating to, impliedly inapplicable to pound keeper, 244 IMPRESSMENT, 194. See SzaAmAN, IMPRISONMENT, undergoing, under s. 25, 11 & 12 Vict. c. 43, when sentenced for second offence, construed from practice, 372 when provided, generally means immediate, 427 IN BONAM PARTEM, construction of words, 383 INCIDENTS, necessary. See LogicaAL ConSEQUENCES. INCLOSURE ACTS. See Sportine. apply to gavelkind, 219 INCOME TAX, Act, agreement for reduction of rent not within, 143 INCONSISTENCY, enactment to nominate quamdiu bene se, &c., impliedly repealing earlier, authorising appointment durante bene, &c., 193 INCONTINENCE OR BRAWLING, apparent conflict between Acts relating to, 105 INCONVENIENCE, Sce HanpsHIp—IMPERATIVE OR DIRECTORY. to determine the general object of a statute or meaning of a passage, the intention most agreeable to convenience, reason, and justice presumed, 230 Digitized by Microsoft® INDEX. 591 INCONVENIENCE—continued. the argument from an, applies no less forcibly to an absurdity or injustice, 230 Examples :— validity of rate not questionable on summons to enforce it, 231 enactment in alternative protecting against dogs, 232 Act against forging English bank notes excluding Scotland, ap- plied to engraving Scotch notes, 233 actions where duties of paving, &c., transferred to Board of Works, 233 enactment as to recognizances ‘‘ at time of application” for case, 233 ** next” sessions, 234; ‘‘time for making complaint” construed to mean for notice of appeal, 234 necessity of signature of client to agreement with solicitor implied, 235 : exception to vesting of bankrupt’s earnings, 236 piracy of ‘‘any part” of dramatic work, 236 construction facilitating evasion to be avoided, 237 :— prohibition against « publican suffering gaming in his house includes himself, 237 but sometimes such justifiable, 237— questions of sufficiency of stamp arising during trial, 237 presumption against intending injustice or absurdity, 242 the more reasonable of two constructions to be adopted, 242 bye-law limited to avoid injustice, 242 enactment for protection of magistrates from actions, bona fides implied in, 243 meaning of piloting down Thames, 244 Act requiring a month’s notice before process inapplicable to injunc- tions, 244 keeper of pound impliedly excluded from Act, 244 so publican from Act against being found drunk on licensed pre- mises, 244 meaning of exemption from further proceedings after conviction and punishment for assault, 245 penalty on sheriff or bailiff, recovered from latter, leaves no right of action against sheriff, 245 absurdity avoided : confession by fraudulent agent on examination in bankruptcy of offence after proof before magistrate, not a ‘“‘dis- closing ” on oath, 246 retrospective rates and charges unauthorised without express words, 246, &e. exception in bill of lading as to liability for breakage, 247 evasion of Act suffered where otherwise the inconvenience, intolerable, 145, 464 Digitized by Microsoft® 592 INDEX. INCORPORATION, of several distinct Acts in one, operation of one part on others, 40 by Act on one subject of provisions of Act on another subsequently modi- fied, 221 of an enactment by reference and subsequent repeal of earlier enactments, 514 of a body by implication, 429 of an instrument in another by reference, stamp in case of, 349. See STamp. INCRIMINATING, answers on election inquiry, 279. See ELECTION. INCUMBENT. See Leasrs—Brenerice—CHURCH. INDICTMENT. See Common Law—E ection. judgment on, 167. See Writ. Act for preventing vexatious removal of, inapplicable to prosecutor removing indictment, against corporate body, 128 effect of superfluous enactment that it shall include ‘‘ inquisition,” 391 INDORSEMENT, of date of passing Act by clerk of Parliament since 1793 part of Act, 52, 519 INFANTS’ RELIEF ACT, retrospective, 265 INFERIOR COURT. See JuRIsDICTION. overstepping jurisdiction, 154 not duly constituted, 154 order in, obtained by fraud, 154 IN FRAUDEM LEGIS FACIT, QUI, SALVIS VERBIS LEGIS SEN- TENTIAM EJUS CIRCUMVENIT, 133 : INHABITED, house duty, 48. See CHAMBERS. “ INHABITANT.” See Occurier. complex and various meanings of, 7782 where right of way granted to ‘‘ inhabitants,” 77 where object of Act to impose a tax as in Statute of Bridges and Riot Acts 77, 78 , where object to impose a personal duty within a locality, 78 or where rates imposed on all who ‘inhabited and occupied,” 78, 162 ? Digitized by Microsoft® or so wo INDEX. “ INHABITANTS "—continued. ‘every inhabitant” in Act for protection of inhabitants against clandestine rates, 82 where the object to determine pauper’s settlement, or elector’s qualifi- cation, 79 :— person resides or inhabits place where he usually sleeps, 79. such residence compatible with much absence, 79 where residence for a certain time at least required, 79 where object to find a person when sought :—the ‘place of business” the abode or residence intended, 80 but in general place of business not place of abode, 80 INJUNCTION, provisions in Judicature Act for, in cases which the Court should consider ‘* just and convenient,” limited, 97 to prevent misapplication of a poor rate, jurisdiction not ousted, 153 power to inferior courts having power to grant, to commit for disobedience implied, 433 Act requiring a month’s notice before process inapplicable to, 244 INJURIES. See NEEDLESS MISCHIEF, INJUSTICE, Sce INCONVENIENCE. resulting from literal construction, 7—9, 12, 13 where none, an omission not supplied, 21 construction leading to, to be avoided, 54, 242-—245 intention conveyed by the language must receive effect, however unjust, 4 modification of language to avoid, if meeting real intention, 274. See MopiricaTIon. dicta that statutes contrary to natural equity are void cannot be supported, 315. Sce EQUITABLE CONSTRUCTION. INNKEEPER, not exonerated from liability for goods of guest if notice inaccurate, 454 IN PARI MATERIA, 40-—42. Sce Part Marerta. INQUISITION. Sce InpicTMent. INSENSIBLE LANGUAGE, though inoperative, not altered on conjectural grounds, 23 INSOLVENT ACT, literal construction of Indian, where debtor by neglect or design omitted debt in schedule and yet obtained his discharge, 12 construed like bankrupt, 46, 130 construction of ‘if an insolvent petition,” in 10 & 11 Vict., 282 notice of filing petition, to creditors, directory, 466, 467 29a Digitized by Microsoft® 594 INDEX. INSPECTION. See ORDER—DoCUMENTS, INSTANTLY, implies reasonable time, 423 INSTRUMENT of gaming, halfpence used for tossing not, 408. See Vorp. contract or, whether whole or part only of, void when part invalidated by statute, 491, 492 depends on whether the vitiated part be severable, 492 examples from a deed; rent-charge ; bill of sale of ship ; lease ; bye- law, 493 incorporating another by reference, stamp on, 349. See STramp. statutes imposing forms and solemnities on, construed strictly, 352. See ContTRACT—FORMALITIES—FRAUDS, STATUTE OF —REGULATIONS. will in testator’s own hand declared at beginning to be his, &c., sufficiently signed, 355 so sufficiently subscribed by witness elsewhere than at end, 355 agreement sufficiently signed by corporation where resolution, &c., and signed by chairman, 355, 356 INSURANCE. See Poxicy. marine, admissibility, in evidence, of the slip, 132 requirement for directors to lay out money in reinstating, contained in Act relating to London and Westminster not restricted to metropolis, 59 INTENT TO MURDER, whether it includes intent to disfigure, 323 INTENTION of framers of Act not allowed to control construction, 32, 34 references : to framers of Statute Westminster 2nd ; Statute of Frauds; Uniformity Act in relation to the operation of the rubric on vestments, 32 to Bankruptcy Acts, 33 parliamentary history of an enactment not admissible to explain meaning, 34 inference from comparison of language with declared intention of framers, that difference intentional, 34 Examples :— Dower Act ; Charitable Uses, 34 evil, not to be confounded with mens rea, 126 of Legislature invariably to be carried into effect, 65 who incapable of criminal, 115 “INTENTS,” land disgavelled to all, 404. See DiscavELLED. INTEREST requirement in Act to pay, ‘from time to time owing,” when inapplicable to ‘‘arrears,”’ 63 efficacy of, payment of by co-debtor, 263 Digitized by Microsoft® INDEX. 595 INTERMEDDLE, enactment that no court shall, construed, 153 INTERNATIONAL LAW. See Forrtgnen—EXxTRaDITION—ForEIGNn SHIP. presumption against violation of, 173—180 statutes to be interpreted as not to be inconsistent with comity of nations or rules of, 173 a different intention is not to be imputed to Legislature unless clearly expressed, 173 to avoid such, general terms must be narrowed, 174 Illustrations :— statutes to be read as embodying the rules as to the exemption from jurisdiction of ambassadors, &c., 174 criminal statutes construed not to violate the rule that nations have no jurisdiction over offences by foreigners out of their territories, 174 24 & 25 Vict. c. 100, s. 10, so construed, where wound inflicted at sea and death in England, 175 enactment of Congress as to person robbing in vessel at sea being guilty of piracy, 175 when foreigner uot triable for manslaughter committed within three miles of British coast, 175 act abolishing slave trade inapplicable to foreigners, 176 acts of bankruptcy committed by foreigner abroad, 179 Admiralty statute in case of salvage of life on a foreign ship more than three miles from shore, 177 bankrupt acts not extended to lands abroad, 177 aliter as to statute imposing stamp on all conveyances of land executed in England, 178 right and disposition of personal property governed by law of domicile of owner, 178 ‘ application of Bankrupt Acts, 178 statutes imposing burdens on personal property, 178 Legacy and Succession Duty Acts, 178 a statute, if unambiguously in conflict with international law, must be administered as it stands, 179 Statute of Frauds applied to contract made and valid in France, 180 but its authority questionable, 183 to determine redress to be given to suitors resorting to our courts no breach of, 184 Instances :— British ship sued by foreign for damage by collision on high seas protected, 184 liability of foreigner to arrest for debt, and to be barred by Statute of Limitations, 184, 185 Admiralty jurisdiction in cases of claims for building a ship, &c., 185 English sailing rules, 185 QQ2 Digitized by Microsoft® 596 : INDEX. INTERPLEADER ACT, claim of foreigner abroad not barred under, 179 not binding on Crown, 165 INTERPOLATION, statutes sometimes modified by, 274 in enactment, as to answers to self-criminating questions, 279 omission in Fines and Recoveries Act supplied, 304 ‘such representations ” in Lord Tenterden’s Act, 305 instances of refusal to supply omissions, 331, 332 INTERPRETATION OF STATUTE LAW. Sce Sraturss. INTERRUPTION OF PROCEEDINGS, implied power to prevent, 438 INTOXICATED PERSONS. See CHILDREN. INVALIDITY, of part of a contract, when it affects the whole, 491. See INSTRUMENT. INVENTIONS. See New ToHincs—Patent. IRREGULARITY, waiver of, 475—477 vitiating criminal trial, though consented to, 478 ISSUE, in what sense to be understood, 68 ‘* without issue” used in two senses in same will, 387 ‘‘issued,” when not to be altered to ‘‘levied” in relation to warrants of attorney, void, &c., unless execution issned with, &c., 24 JAIL. Sce Crown. statute directing justices not to commit elsewhere than to the common, imperative on all judicial functionaries, 309 JAILOR, construed not an officer who detains bankrupt, 42 JEWS, parliamentary oath, 13 JOINT PECUNIARY PENALTY, when the offence is single, 238, 240, 241 Digitized by Microsoft® INDEX. 597 JUDGE, his duty in construing statutes, 7, 84 at Nisi Prius, when authorised to exercise authority of “the Court” in giving costs, 31 man cannot be, in his own cause, principle applied where mayor returning officer, 98 when impliedly required to give his opinion in difficult Quarter Session cases, 442 in chambers, power to exercise authority given to full court, 206 of Court of Arches, 360. See REGULATIONS. one, held authorised to try, where the power was given to ‘‘two or more,” 371 power given to judges, when exercisable by single judge in chambers, 368. See UsaceE. JUDGES, formerly drew up statutes, 49 lodgings, 162. See Crown. JUDGE'S ORDER, given by ‘‘trader,” 53, 54 JUDGMENT. See Docketinec—Jupicature Act. “final,” 68, n. (d) ‘recovered ” for less than sum exceeding, &c., technical meaning rejected, 71 to pay under Debtors’ Act, power to commit for default, 250. Sce Deszrors’ Act. signing, for less than £50 where more due, to avoid operation of Act, 143 remedy by foreign attachment, confined to judgments in strict sense, and inapplicable to rules of court, 43 Act making, a charge on ‘‘ rectories,” 199 of ‘‘ life or member ” makes offence felony, 427 of ‘‘ forfeiture of body and goods ” a misdemeanour, 427 of County Court, no action lies on, in superior, 155 on petition of right, 167 on indictment, 167 provisions of Common Law Procedure Act, as to error, &c., on judgment or special case, not retrospective, 273 as to executions on, retrospective, 271 JUDGMENTS EXTENSION ACT, security for costs impliedly abolished by, 430 JUDICATURE ACT, provision for injunction in, construed, 97 operation of rules in Bankruptcy in relation to secured and unsecured creditors, 111 when rules not retrospective, 263 Digitized by Microsoft® 598 INDEX. JUDICATURE ACT—continued. repealing Act of James I. in respect of costs in slander, 193 obtaining judgment by motion, provision for, not affecting County Courts Act, 215 JUDICIAL Acts giving, powers imply that they shall be exercised in accordance with fundamental principles of procedure, 443 person to have opportunity of defending himself, &c., 443. See IMPLIED Durtizs, 443—449 offices within Burke's Act, notwithstanding the preamble, 60, 61 exemption from liability of magistrates in India when mistaking their jurisdiction, only given when acting bond fide, 243 exercise of, office imperative, though language permissive, 295, 296 Acts construed strictly when jurisdiction in question, 311, 346 JUDICIAL DUTIES IMPLIED, 443. See Impuiep Durtss. JURISDICTION. Sce ImprreD PowERs. of Parliament. See FoREIGNER—INTERNATIONAL Law—New JUvRISs- DICTIONS. to be presumed that Legislature does not intend to exceed its jurisdiction, 168—173 legislation primarily territorial, 168 laws of a nation apply to its subjects, and all things within its territories, 168 in England its ports and waters part of adjacent country, 168 laws extend to ships on high seas or in foreign tidal waters, 168 to all foreigners within its territories, 168 except where, by the comity of nations, the law of their own country applies, 169 right of state to impose its legislation on its subjects in every part of world, 169 in matters of personal status or capacity understood to do so, 169 to be presumed that the Legislature does not design its statutes to operate beyond the United Kingdom, 170 statutes to be read as if words to that effect inserted, 170 Examples— bigamous marriage abroad not indictable, 170 statutes regulating the formalities of marriage, 171 non-liability for act of bankruptcy abroad, 170 Court authorised to make an order on service, and service abroad, 170 construction of Act against sale of liquids otherwise than by imperial measure, 171 it may be collected from the nature of the enactment whether statutes are intended to apply beyond the United Kingdom, 171 Digitized by Microsoft® INDEX. 599 JURIS DICTION—continued. Examples— The Royal Marriage Act, 171 Act declaring all marriages within the prohibited degrees void, 172 The Divorce Act, 172 a wider effect given where intention manifest, 172 Act prohibiting any persons to deal in slaves, 173 Act abolishing transportation, 173 presumption against construing statutes as ousting or restricting jurisdiction of superior courts, d&c., 152—160 an intention to oust not to be inferred from grant of jurisdiction to a new tribunal, 152 Examples— Act referring questions arising upon taking distress to Commis- sioner of Taxes, 153 statute empowering Poor Law Commissioners to determine pro- priety of application of poor rates, 153 Acts giving justices and inferior tribunals jurisdiction in certain cases do not in general affect the control of Superior Court ; and are strictly construed, 153 Examples— that ‘no Court shall intermeddle,” 153 that case shall be ‘‘ heard and finally determined ” below, 153 : enactments against removal by certiorari, 154 but jurisdiction may be taken away by implication, 154 enactment that disputes may be referred to arbitration, 154 no action in superior on County Court judgment, 155, &c. where new duty created and special jurisdiction which Court never had is prescribed, no ouster, 156 Act creating penalties, and authorising justices to impose and mitigate, 156 enactment for ascertaining and recovering before justices costs of paving street in case of dispute, 157 costs under Nuisances Removal Act in County Court or before justices, 157 when a new offence, to be tried by an inferior Court according to course of common law, is so tried, all the consequences of such trial attach, 157, 158 a construction impliedly creating a new, to be avoided, 158 to confer such, words should be clear and unambiguous, 158 compensation ‘‘in case of dispute as to amount ” to be settled by arbitra- tion, construed, 159 given to justices by plain implication in respect of the offence of exposing for sale diseased animals, 159 and in like manner to the Admiralty Court in respect of charterparties, &c., 160 may be given by implication, 159, 160, 433 statutes conferring jurisdiction, to be strictly construed, 357—363 conditions precedent to, cannot be waived, 473, 478 Digitized by Microsoft® 600 INDEX. JURORS, Act requiring all persons to serve in county not extended to hundred exempt by custom, 217 construction of stat. 2 Hen. 5, 307 JUS DICERE, NOT JUS DARE, the Judge’s office, 7 “JUST AND EQUITABLE,” meaning of, with reference to winding up company, construed, 411 JUSTICE, intended in Statutes, 231. See PRESUMPTIONS. JUSTICES OF THE PEACE, discretion of, 148—151 refusing to do ‘‘any act” relating to duties, 54.. See Any Act. bound to summon before making order for out-door relief, 443 order of, time for appeal runs from verbal utterance, 8 jurisdiction may be given to by implication, 159, 160, 433 power to, to commit for disobedience, 433 to defray costs, 435 construction of convictions by, when jurisdiction is in question, 319 when two or more empowered to do a judicial act, personal presence of all impliedly required, 448 notice of action to, under Highway Act, 207 Act fixing time of Sessions by directory, 462 Act requiring oaths by directory, 464 administration of oath by, 207 ** justices of the peace and others having power to take indictments,” 419 power of, to bind witnesses to appear at next “‘court of oyer, &., or the Quarter Sessions,’’ 419 time prescribed for confirmation of table of fees imperative, 463 jurisdiction of, ousted when reasonable claim of right or title set up, 117 but not in summary proceedings for acts of malicious damage to pro- perty, 192 where right of action taken away in respect of disputes referred to them, and County Courts were subsequently established with jurisdiction to try ‘‘all pleas,” 214 qualification, ‘‘ one to be of the quorum,” dispensed with, 191, 395 penalties recoverable before, to whom payable, 221 when validity of rate not questionable on summons before, 231, 232 clerk to, under Municipal Derponston Act, prosecuting offenders, 332 general authority given to ‘‘any” or ‘‘ nearest” to try, restricted to terri- torial jurisdiction, 96 when jurisdiction to impose penalty exclusive, 156 jurisdiction of, in case of dispute as to cost of paving street, 157 Digitized by Microsoft® INDEX. 601 KIDNAPPING, Act not retrospective, 259 KING'S PLEASURE, ‘‘ fine and ransom at,” meaning of, 427 ““KNOWINGLY AND WILFULLY,” 115. See Mat. KNOWLEDGE, guilty, generally essential to constitute an offence, 115—126. See Mzns REA. mere, of purposed illegality, without participation does not affect contracts, 487 selling goods abroad to be smuggled to England, 487 of servant construed as that of master, 88 LABOURER, 407. See SERVANT. LAND, in Dower Act construed not to include copyholds, 36 used with ‘‘ mines ” or ‘‘ buildings’ excludes them, 397 abroad, of bankrupt, 177 stamp on conveyance executed in England of, abroad, 178 meaning of, in statute, 420 residence of aliens authorized to hold, 53 one unlawfully using highway a trespasser on, 338 disgavelled ‘‘to all intents and purposes,” but made “descendible as, at common law,” limited to descent, 404 ** houses, &c., and property other than land ” in rating Act, how construed, 411 covenant by lessee not to use otherwise than for a particular purpose, when breach excused, 480 LANDLORD AND TENANT. See Tenant—DIstTRESS—APPRAISER, LANDOWNER, adjoining, 504. See Fencina Rariway. LAND TAX, how far Crown exempt from, 163 added to rent in Bishop's leases, how recoverable, 495, 496 LANGUAGE. See Worps. ambiguity of, 25, 26 may be explained by usage, 35 Digitized by Microsoft® 602 INDEX. LANGUAGE—continued. of statutes, to be regarded as that of the three estates of the realm, 34 different meaning of same word when used to impose a tax and to exonerate, 350 of local and private Acts, 363 LARCENY, “unlawfully and wilfully ” killing pigeons, construed, 107 of writings, unstamped cheques, 343, 344 railway and pawnbrokers’ tickets, 344 strict construction applicable to receivers, 328 effect of repeal of Act in force when offence committed, 511 extended to new things, 93 LAST PLACE OF ABODE, 15. See Summons. LATER ACTS, in pari materié to be surveyed for elucidation of earlier, and vice versd, 35, 40. See ConTEXT. “LAWFUL, IT SHALL AND MAY BE.” and ‘‘shall,” in same Act equally imperative, 389. See MopiIFIcaTIon— PERMISSIVE WorRDs. LAWFUL SENSE, words to be understood in, 388—385. See Worps. LAWS made ad ea que frequentius accidunt, 248 LEASES by ecclesiastics, 59, 252, 253 of tolls, deed not required, 215 common law right of parson to grant, not abridged by 5 Vict. c. 27, 21 ordinary covenant for, to be void for breach, 251 n. (a) acts relating to forfeiture, when retrospective, 265 power to Court to grant, strictly construed, 359 covenant in, to pay landlord’s property tax, 493 not made by deed valid as agreements notwithstanding omission in Act, 392 LEGACY DUTY, liability to, depends on domicil of testator, 179 when avoided by deed of gift to take effect on donor's death, 143 LEGAL MAXIMS, as to construction when language is plain, 3 the judge’s office in expounding laws, 7 construction must be made of whole together, 35 Digitized by Microsoft® INDEX, 603 LEGAL MAXIMS—continued, acting by agency, 87, 88 against evasion, 133 as to territorial jurisdiction, 169 later repugnant to earlier laws, 187 general laws yield to special, 212 retrospective operation of laws, 257 to depart from the letter is divination not interpretation, 314 immutability of laws, 316 words understood against him who uses them, 364 construction from usage, 366 and contemporaneous interpretation, 366 general mistake, 369 express mention of a thing excluding another, 379, 398 when laws are approved of by our reason they are the more commendable, 387 words used in cognate sense, 398 impossible conditions excused, 471 law dispenses with impossible requirements, 471 right to waive the benefit of a law, 471, 474 private compacts give way to public policy, 477 laws not intended to meet individual cases, 248 right of defendant to be heard, 443 LEGES EXTRA TERRITORIUM NON OBLIGANT, 168 LEGES POSTERIORES PRIORES CONTRARIAS ABROGANT, 186 LEGISLATION OF STATE, subjects in all parts of the world liable to, 169, and n. (c) LESSOR AND LESSEE. See BANKRUPT. LETTER, remedy for non-delivery of, 501 stealing, by person employed ‘‘ on behalf of the post office,” 339 “sending”’ threatening, 336 evidence of contract. See CONTRACT. LEX FORI, 185. See FOREIGNER—INTERNATIONAL Law. LEX LOCI ACTUS, or contractis, applicable to foreigners within English territory, 169 LEX NON COGIT AD IMPOSSIBILIA, 471. See PERFORMANCE. LEX PLUS LAUDATUR QUANDO RATIONE PROBATUR, 387 LEVEL railway crossing highway on, 440, 441 Digitized by Microsoft® 604 INDEX. LIABILITY, penal, for act of servant, 89, 125 of partner, 341 of shipowner, limited, 183, 184, 356, 357 LIBEL, : penal liability of newspaper proprietor for, inserted without his knowledge, 125, and n. (c), ibid. enactment requiring apology for, to be inserted, construed, 135 LICENCE, pilot’s. See Prior. omission of name in distiller’s, effect of, on sales, 490 of tobacconist when not taken out, contracts not vitiated, 490 agreement to let for selling spirits without, illegal, 486 with licence, what power to licensee implied, 439 certificate for beer, 468. Sce CERTIFICATE. Act erroneously assuming a kind of beer saleable without, not to be treated as an enactment that it could be, 377 justices refusing, when impliedly bound to state the grounds, 44 licences for different purposes, no implied repeal, 201 LICENSING Act. Power to imprison for non-payment under, strictly construed, 359 public houses, how discretion as to, to be exercised, 150. See Pusiic Hovses. LIEN maritime, when implied, 429 LIFE OR MEMBER, judgment of, effect of, 427 LIGHT AND UNJUST, railway company penally liable for being found in possession of an unjust weighing machine, 127 scales, 108 LIGHTS, ancient, invasion of right to, not authorised by Metropolitan Building Act empowering the raising of party structures, 112 custom of London as to, abolished, 218 LIMITATIONS, STATUTES OF. Sce Sicnature. why construed strictly, exceptions to their operation construed liberally, 348 may be waived, 474 on literal construction, held to run though cause of action not discoverable or concealed by fraud, 7 Digitized by Microsoft® INDEX. 608 LIMITATIONS, STATUTES OF—continued. where time limited for conviction though prosecution adjourned beyond the time at culprit’s request, 8 time of appeal runs from date of pronouncing the order, 8 even where appellant had no notice of it, 9, abjuration oath, compliance one day after time, too late, 9 second bastardy summons after twelve months unauthorized, 11 omission in the 3 & 4 W. 4, c. 40, of reference to the 4 & 5 Anne, providing that statute shall not run whilst plaintiff beyond seas, 20 acknowledgment of debt by agent insufficient to bar the statute, 46 signature by agent, insufficient under 9 Geo. 4, c. 14, 46, 89, 394 apparent conflict between the 3 & 4 W. 4, u. 27, s. 42, and the 3 & 4 W. 4, c. 42, 8. 3, 203 between the 3 & 4 W. 4, c. 27, and the 2&3 W. 4, c. 100, 199 3&4 W. 4, c. 27, s. 26, construed, subject to the established principles of equity as to constructive notice, 104 as regards actions for penalties, usage, 369 Act of 21 Jac. 1 applicable to India, 275 equitable construction of it, and of the 3 & 4 W. 4, c. 42, 311, 314, 315 not binding on Crown, 164 foreigner suing in our courts barred by, 185 time for persons abroad to sue ‘‘ after they returned ” extended to executor of one who died abroad, 275 LIMITED LIABILITY of shipowners, statute giving, not extended to foreigners, 183 construed strictly, 356, 357 LITERAL CONSTRUCTION, 2—24 only prima facie to be preferred, 2—24, 27 words and phrases assumed to be used in technical sense if they have one, in popular if not ; that rules of grammar apply, 2 Legislature to be intended to mean what it has plainly expressed, &c., 3 where statute divests vested rights, &c. ; where an oversight by framers, 5 danger of conjecture or speculation as to meaning, &c., 6, 15 question for interpreter not what Legislature meant but what its language means, 7 Instances :— actions barred by Statute of Limitations where cause of action not discoverable or concealed, 7 Acts limiting times: for convictions ; appeals; for Papist taking oath; Welsh Sunday Closing Act to come into operation, 7-9 formalities not to be disregarded because not deemed important, &c., 10 Examples : apprenticeship deeds; affidavit under Bills of Sale Act ; pilot's licence ; titles ; occupier ceasing to occupy before rate discharged, 9, 10 Digitized by Microsoft® 606 INDEX. LITERAL CONSTRUCTION—continued. a second summons not authorized under an enactment that magistrate might summon putative father for maintenance within twelve months from birth of child, 11 no order where same enactment required the justices to hear the evidence of the mother, who died before the hearing, 12 person enabled to take advantage of his own wrong or neglect : where debtor neglected to schedule a creditor as required by Indian Insolvent Act, by giving no notice of appeal to session, 12, 13 operation of literal construction tn other cases :— Jews excluded from Parliament by the form of abjuration oath, 13 under Game Act, esquires disqualified from killing game though their eldest son privileged, 14 Act qualifying for the magistracy owners in immediate remainder or rever- sion of lands leased for two or three lives, 14 Act empowering a Court of Requests to summon, &c., by leaving summons at his abode, held to apply to a seafaring man absent beyond seas, 15 and so, under a Bastardy Act authorizing justices to hear cases on proof of service at the last place of abode of the putative father who was abroad, 15 exemption from liability under Carriers’ Act ; order for production of docu- ments under C. L. P. Act; inability to examine directors ; costs on ‘* property recovered or preserved ” under Solicitors’ Act, where the suit was respecting an invasion of right to light, 16 and where parties compromised, without the solicitor’s knowledge, 17 nothing to be added to or taken from u statute except upon adequate grounds for inferring that something omitted to be expressed was intended, 17 on like grounds a construction leaving any part of the language without effect to be rejected, 22 a case omitted not to be supplied merely because there is seemingly no good reason for the omission, 17 Examples in illustration of rule, 17—22 where language is precise and unambiguous, but incapable of reasonable meaning, words may not be supplied on conjectural grounds, and Act is inoperative, 23 confined to cases where language is capable of but one construction or neither context nor consequences show that a literal construction does not express the real intention, 24—49 that which is within the letter is not within statute unless within meaning, 24 illustrations of rule, 25, 26 fallacies of literal construction, 24—27 LOAN, enactment against raising money by, avoided by sale of rolling stock and seller hiring, 144 Digitized by Microsoft® INDEX. 607 LOAN SOCIETIES, action on notes of, 156. See TREASURER. See Borromry. LOCAL ACT. See Private Acr. strictly construed, when giving exceptional privileges, 363—365 construed as contract between promoters and legislature, 363 language of, treated as that of promoters, 363 in case of doubt, benefit of, to be in favour of those prejudiced, 364 construction where something is seemingly expressed unconnected with purpose of promoters, 364 analogous to grants from Crown, 365 to be understood as granting no more than passes by unavoidable construc- tion, 365 principle of strict construction less applicable to powers given to public bodies for public purposes, 365 directing chimneys to be built of such materials as corporation approve consistent with provisions of earlier general, 205 exempting from taxes, not repealed by general, imposing, 213 LOCAL AUTHORITY, when impliedly empowered to sue in its collective designation, 429 LOCAL LAW, or custom, effect of general Act on, 216, 373. See Usacr. LOCOMOTIVE, use of, not implied from authority to railway to use waggons, &c., 437. See RAILWAY. Act extended to tricycles propelled by steam, 330 LODGER, and occupier, meaning of, 82, n. (a) LOGICAL CONSEQUENCES, 428—432 the immediate and specific purposes of Acts include all incidents or oon- sequences strictly resulting from the enactments, 428 Acts therefore imply enactments to that effect. Examples :-— an Act declaring offence felony impliedly gives it the incidents of felony, 428 widow of copyholder entitled to damages under Stat. of Merton, 428 trustees from nature of powers impliedly a corporation, 429 Digitized by Microsoft® 608 INDEX. LOGICAL CONSEQUENCES—continued. local authority authorised to ‘recover expenses” impliedly entitled to sue in collective designation, 429 giving Admiralty jurisdiction over claims for necessaries, &c., created maritime lien, 429 answers to self-criminating questions under Bankruptcy Acts evidence against bankrupt, 429 security for cost incidentally abolished under Judgments Extension Act, 430 shipowner not liable for acts of compulsorily employed pilot, 356, 430 corporation created by statute, attributes of one implied, 430 but aliter where created for certain purposes only, 430 costs incident to passing of Act when it is not said to whom, payable to promoters only and not to agents, 431 private Act annexing rectory impliedly exempting from residence, 431 extension of enactments is confined to strictly necessary incidents, 431 thus power to discharge an apprentice does not justify order to return the premium, 432 nor the Act absolving husband from ante-nuptial debts of. wife and ena- bling her to trade and be sued render her liable to be bankrupt, 432 LORD OF MANOR. Sce Sportine. LORD TENTERDEN’S ACT. See TENTERDEN’s ACT. LORDS, in Magna Charta includes new ranks of nobility, 93 Lord’s Day (Sunday Act) prohibiting tradesmen, artificers, &c., working upon, what persons not within it, 406 LOSS OF SHIP, how affecting jurisdiction of Chancery and Admiralty Courts, 474 LOTTERY, offender_keeping, liable to action for penalty and indictable, 499 LUGGAGE, passenger’s right to carry, with him waived, 475 ordinary and personal, construed, 388 LUNATIC. See Distrincas—WILLs Act—CHILDREN. asylum, enactment as to removal to when full, 18 Act for punishing ill-treatment of, restricted to scope, 113, 114 prisoner, Act for removing, impliedly repealed, 191 particulars in medical certificate for detention of, in asylum imperative, 455 jeceivide lunatics into unlicensed house believing them not to be so, 122 pauper, settlement of, adjudication on ea parte, 447 Digitized by Microsoft® INDEX. 609 LYING IN WAIT, essential in Coventry Act, 322, 323 MAGISTRATE. See Jusrices—QUALIFICATION. Act protecting, in India, from actions limited to cases in which they act bond fide, 243 MAGNA CHARTA. Sce Lorps. _questionable doctrine as to statutes contrary to, 316 “‘magnates and noblemen” in, include only magnates of a ‘‘ noble” kind, 399 provision as to weirs in, interpreted by a later Act, 42 extended to degrees of nobility not then known, 93 MAGNATES. See Macna Cuarra. MAIL, knowingly and wilfully obstructing, when not indictable, 115 MAIMED soldiers, provisions for support of, not extended to those maimed in foreign service, or for crime, 101 “and” read ‘‘or” in Act for the maintenance of ‘‘sick and maimed” soldiers, 284 MAINTENANCE of illegitimate children. See CHILDREN, MAJORITY, meaning of, 98 of creditors, 146, 147, Sec CREDITORS. “MAKE GOOD” damage, in Metropolitan Building Act, confined to structural, 112 MAKING COMPLAINT, time given for, how computed, 234, 235 MALICIOUS DAMAGE to property, justices’ jurisdiction, 192 MANDAMUS. Sce REFUSAL. principle acted on in refusing where certiorari taken away, 140 MANDATORY or compulsory, when permissive terms are, 287—303. See Movirt- CATION, “MANORS AND OTHER ROYALTIES,” 418 Rn Digitized by Microsoft® 610 INDEX. MANSLAUGHTER. See Assautt. MANUFACTURING COMPANY, where it dwells, 81 ~ MANX LEGISLATURE, power to House of Keys ‘‘ when in execution of their respective offices, to punish contempts construed, 106 ” MAPS, under Tithe Commutation Act. See EVIDENCE. MARGINAL NOTES, 49—52 : formerly did not appear on Rolls of Parliament, and no parts of Act, 51 since 1849 appear on Rolls ; but whether they are to be deemed parts of Statute undecided, 52 MARINE insurance. See SLip. MARITIME LIEN. See Lien. policy by owner privy to illegal act in relation to voyage void, 486 MARK, possession of goods bearing Government, effect of neglecting reasonable means of knowledge, 120 MARKET ACT, applied to part of town, at time of passing, not built over, 330 MARLBRIDGE, Statute of, applies to Crown, 167 MARLBOROUGH. See ENTAIL. MARQUISES. See Lorps. MARRIAGE ACT, applies to illegitimate children, 73 not to marriages abroad as regards forms, 171 but to marriages of British subjects abroad, within prohibited degrees, 172 the Royal, construed, 171 MARRIED WOMAN. ‘ce RecognizancEs—BicamMy—HuvsBanp, omission in Act enabling her to sue, 20 no right to maintain action commenced before protection order, 262 order for protection of earnings of, not dischargeable by another magis- trate, 17 though she may sue and be sued, &c., not impliedly liable to be bankrupt, 432 Digitized by Microsoft® INDEX. 611 MARRIED WOMAN—continued. will of, 101, n. (c) filing of acknowledgment of, imperative, 450 not a ‘‘ person” entitled to vote at a municipal election, 99 within term ‘‘ single woman ”’ for purposes of bastardy, 84 when Act punishing for desertion of children inapplicable to, 99 “MARRY,” construed in two senses in same sentence, 386 MASCULINE gender, words importing. Sce GENDER. ‘* MASK, ‘‘dress, or disguise, or any letter or any other article,” construed in penal Act to include a crowbar, 413 MASTER AND SERVANT. Sce APPRENTICE. knowledge of servant constructively that of master, 88 master liable for nuisance caused by servant, 89, 125 mens rea not essential to penal liability of former for acts of latter, 124— 126 conflicting statutes in relation to, 226 MASTERS and fellows of colleges, &c., vicars, and others having ecclesiastical livings, would not include bishops, 417 MATERIALS, price of buildings erected with prohibited, not recoverable by action, 483 MATTER, subject, words understood according to, 67—84 MAXIMS. See Lecat Maxims. “MAY” and its equivalents, whether imperative or directory, 287—303. See Mopirication. rule of construction overlooked, 296, n. (a) MAYOR, an enactment that he shall not he ineligible, &c., by reason of his office will not make him eligible when returning officer, 98 MAYOR’S COURT. Sce ForEigN ATTscHMENT. express exemptions of East India Co. and Bank of England from foreign attachment in, relied on to show that debts due from corporate bodies were subject to it, 380 judgment in, 383 RR2 Digitized by Microsoft® 612 INDEX, MEANS OF KNOWLEDGE, requiring proof that goods bore Government mark, neglected, 120 MEASURE. See ImpertaAL—DIsTANce, MEDICAL ACT inapplicable to act begun before, but tried after commencement, 265 MEETING, majority of vestrymen ‘‘ present at the,” matter left to the determination of, would not affect right to demand poll, 100 : MEMBERS OF LEGISLATURE, individual and framers of statutes, their intention occasionally referred to, 32—34 MENS REA, 115—127 or guilty mind, in criminal law, in general essential to a breach of it, 115 statutes to be understood as requiring it to be imported unless a contrary intention expressed, 115 so an enactment that persons doing certain acts should be adjudged felon inapplicable to children, &c., incapable of criminal intention, 115 acts done in doné fide assertion of right not within penal acts, 116 Examples— riotously assembling to demolish a church; cutting down tree or demolishing house ; demanding goods with threats, 116 abduction ; fishing in tidal river, 117 jurisdiction of justices ousted when claim of right or title set up, 117 materiality of ignorance or erroneous belief of a fact essential to offence, 117—124, See IonoRANCE. absence of mens rea is established where the act done is unlawful only under exceptional circumstances, and the ignorance as to those, 118 Examples, 118—121 where the act done is in its nature a breach of the law, and divested of that character only when a certain fact exists, ignorance or erro- neous belief respecting it is no excuse, 121 where a statute does not expressly make malice an element of the offence prohibited, ignorance or misapprehension of the law does not con- trol its language, 122 Examples— ignorance of the prohibition against possession of marked naval stores ; unlawful fishing in uon-tidal river; or trespassing in pursuit of game believing the public to be entitled, 123 absenting by an apprentice in belicf that his indentures were void, 123 cabman placing cab on premises in persuasion of a right, 123 not essential to criminality in some classes of misdemeanour, 124 Digitized by Microsoft® INDEX. 613 MENS REA—continued. Examples — masters liable for defaults of servants within scope of their employment, &c., and not in discharge of a public duty, 124, 126. sometimes where servant acts contrary to orders, 124, 125 baker selling bread in which alum has been mixed by his servant, 124 2 carrier for act of his waggoner in unlawfully carrying game, 124, 125 workmen of owner of works carried on for his profit committing nuisance, 125 newspaper proprietors indictable for libel inserted by the editor without their knowledge, 125 not to be confounded with guilty conscience or evil intention :— as selling an obscene publication not intending to deprave the mind; or master of ship trading with enemy, 126 MERCANTILE sense. Sec COMMERCIAL—AGENT. MERCANTILE LAW AMENDMENT ACT, 8. 1, protecting bond fide purchaser against execution creditor not retrospec- tive, 26 nor s. 14 as to effect of payment of debtor, 263 s. 10, retrospective, 269 s. 5 applies to surety becoming so before passing of Act and paying after, 264 MERCHANT SHIPPING ACTS, ‘¢ ship” in, includes more than the interpretation clause defines, 86 certificate of registry, pledge of, void, 255 and illegal, 484 meaning of ‘‘ wilful default” in earlier explained by later Act, 43, 128 master guilty of such default not guilty of barratry, 128 construed in respect of collisions where regulations infringed, 243 forms of transfer required by ss, 55 and 66 imperative, 455 not affected by Thames Conservancy Act, 210 certificate to pilot ships of the same owner, under s. 355, 361 effect of omission in later Act of proviso in earlier requiring registration, 391 construction of, s. 374, ‘‘renewing licence,” 280 8, 379, ship ‘‘navigating” or ‘‘ being ” within the limits of its port, 395 enactments of, limiting liability of shipowners for damage by their servants to other ships, construed with reference to foreigners, 183, 184, 375. Sce FOREIGNER, Digitized by Microsoft® 614 INDEX. MERTON, Statute of, applies to Crown, 167 widow of copyholder deforced of dower within, 428 METALS for purposes of duty, the precious, not included in ‘‘ copper, brass, &c., and all other,” 418 METROPOLITAN Building Act, right under, of district surveyor, ‘‘or other person” to notice of action, limited to persons ejusdem generis with district surveyor, 407 authority under, to raise structure ‘‘ making good all damage,” construed with reference to scope of Act, 110 Board of Works, strict construction not applied to powers conferred on, 365 Gas Act, 1860, implied repeal by, of enactment in local Act as to price, 220 Management Act: in case of dispute, costs of paving street recoverable before justices and other jurisdiction ousted, 157 special railway Act not affected by, 217 provision in to ‘‘ suppress” nuisance, 327 police Acts, to whom penalties recovered under are payable, 221 Middlesex Registration Act, 216 MIDDLESEX REGISTRATION ACT, 216 MILITIAMAN, construction of Act as to removability of married, set up in trade in town, 53 MILK. See ADULTERATION. MINERALS. See Inctosure Act. ‘* MINES,” used with “lands,” excluded from the meaning of the latter, 397 MINING COMPANY has no implied authority to draw bills, 438 MINISTERIAL powers. Authority to persons to exercise, does not impliedly require per- sonal presence of all, 449 duty, where statute imposes, for benetit of individuals, any directly injured by breach has an implied right of action, 500 distinction between, and judicial upon the question whether imperative or directory, 294. See MoptricaTion, statute imposing, duty for benefit of individuals, any directly injured may recover for breach, 500 MINOR. See RecocnizaANceES—ELEGIT—WILLS Act. Digitized by Microsoft® INDEX. 615 MISAPPREHENSION of law. See Mens REA, of fact. See IGNORANCE. MISCHIEF. See DerEct—NeEEDLESsS MISCHIEF. mischievous right given by literal construction of Ballot Act, 14, 15 MISDEMEANOURS, what acts are, 494. See REMEDIES. MODIFICATION OF THE LANGUAGE OF A STATUTE, 274— 306. See EQuitTaBLE CONSTRUCTION. admissible where ordinary meaning leads to a contradiction of apparent purpose, to inconvenience, absurdity, hardship, or injustice, 274 ts done by giving an unusual meaning to words ; altering their collocation ; rejecting ; interpolating, 274 Examples— ‘*any crime or offence” against law of China, limited to offences recognized by all nations, 275 “*beyond the seas,”’ read out of the tervitories, 275 time for persons abroad to sue ‘‘ after they returned,” 276 ‘* begin,” interpolated where penal, ‘‘to be in possession of game” after the last day of shooting, 276 ‘less than ” read as ‘‘not exceeding,” 276 ‘within three months,” read ‘‘ within the period commencing three months,” 276, &c. provisions as to acts done ‘‘ under” or “‘ by virtue,” or ‘in pursuance” of a statute intended to protect unjustifiable acts, dc., done with honest intention, dc. 278 :— unlawful arrest made in the honest, but mistaken belief of intention to commit a felony, 279 election inquiry, ‘‘ truly in the opinion,” &c., interpolated, 280 liability of company to make good rates ‘‘until its works were com- pleted,” read ‘‘ until its works in the parish were,” &., 281, &c. any of such animals, read ‘‘any”’ of the following of such animals, 28] “cif insolvent petitions,” read ‘‘if a petition be presented” by him ora creditor, 282 conjunctions sometimes substituted without sufficient reason :—in Statute 2H. 5, as to qualification of jurors; ‘‘nearer” or more commodious in Highway Act, 286 language of statutes giving authority to do acts for public good in enabling and not mandatory terms, 286 seemingly permissive, may be compulsory, 286—303. that churchwardens ‘‘shall have power and authority to make a rate,” 287 “¢shall, &c., if they shall think fit,” examine accounts, &c., 287 “may,” ‘‘if they shall think fit,” issue summons, 288 ‘*power and authority ” to hold court, 288 Digitized by Microsoft® 616 INDEX. MODIFICATION OF THE LANGUAGE OF A STATUTE—continued. that Commissioners ‘‘shall be empowered” to confirm in Tithe Act, 288 that Chancellor ‘‘should have full power ” to issue commission in bankruptcy ; ‘‘ may” in effect ‘‘ must,” 289 that Court ‘‘may” give costs, &c., 289 “lawful” to order production of such documents “as the Court thinks right,” 289 “lawful” to stay proceedings, 289 Taxing Master ‘‘ may ” look into question, 290 vestry ‘‘might” exempt from rule, 290 where held not compulsory— ‘“it should be lawful” for Superior Court to issue commission for exa- mination abroad, 290 so for Quarter Sessions to widen bridge ; so for Court to cancel annuity deed, 291 for bishop to appoint commission under Church Discipline Act, not com- pulsory, 291 the different views of judges in that case as to whether the powers were imperative or directory, 292 et seq. semble, where the conditions for exercising w statutory power are the same, such words compulsory, 293 aliter where circumstances vary, 294 suggestions for explanation of the question, 294 et seq. distinction between ministerial and judicial acts, 294 enactment: that candidate ‘‘may” be present at polling-place ; clergy- man ‘‘may” attend ; plaintiff ‘‘may” sue, confer licenses, and are permissive, 294 enactment : that Court ‘‘may ” swear witnesses, 294 justice ‘‘ may ” issue summons, no mere permission, 295 powers given to public functionaries for public purposes, in enabling terms, are imperative when occasion arises, 295, 303 similar rule in U. S., 296 questions for consideration where such powers are exercised, 297 powers made not less imperative by express references to discretion, 298 Instances, 298—300— enactment that justices ‘‘may” issue distress warrant ‘if they think fit,” compulsory on certain proofs, 299, &c, enactment that justices ‘‘may” adjudicate (not ‘‘shall”), gives no option, 300 distinction between discretion to exercise power and to determine only whether occasion for it has arisen, Ulustrated, 301, 302 Superior Court may require depositary to caxercise his discretion, but not direct how, 303 unintended omissions supplied, 304 ‘‘felony” mentioned in earlier part of sentence insensible unless supplied, 304 Digitized by Microsoft® INDEX. 617 MODIFICATION OF THE LANGUAGE OF A STATUTE—continued. in enactment authorising suits ‘‘ against,” omission of ‘‘ by” supplied, 304 ‘*upon,” nonsensical in Lord Tenterden's Act, 304 clerical errors read as amended, 305 whether language may be modified except to avoid absurdity equivalent to repugnancy, 305 such restriction not supported, 306 modification formerly carried to greater lengths, 306. Sce EQuITABLE Con- STRUCTION. MONEY. Sce Fatse PRETENCES. not instrument of gaming, 408 construed not goods or effects, 409 obligation simply to pay, for public purposes enforceable only as provided, 496 but by action if special remedy be not provided, 497 MONOPOLIES, Acts establishing, to be strictly construed, 356 or conferring exceptional exemptions or privileges, 356 enactment confining shipowner’s liability for damage without default to ‘value of ship’ and ‘‘freight,” construed, 356 so for damage in case of compulsorily employed pilot, 337 of Bank of England, Acts to protect, construed, 136 MONTH, calendar, by statute, 420 MORTGAGE, of fixtures. See FIxTuREs. enactment requiring registration of, directory, 468 Acts imposing stamp on transfer of, construed, 209 of ship, inoperative for non compliance with statutory formalities, 455 but covenant in the like to repay, valid, 493 MORTMAIN, statute of, attempts to evade, 136 acts not amounting to evasion, 141 not retrospective, 258 includes copyholds, though requiring a deed, 92 Act extends to corporation with statutory power to take land by devise without licence, 219 ‘¢person” in, not including corporation, 398 MOTHER, evidence of, on bastardy summons essential to jurisdiction, 473 Digitized by Microsoft® 618 INDEX. MULTIPLICITY OF WORDS, effect of, 383 MUNICIPAL, Corporation Act. See CoRPORATE BuILpines. corporation erroneously supposed liable to rate, and exempted by statute ‘‘as if the Act had not been passed,” 382 elections. See MARRIED WoMAN. officers, prescription for time of election of, directory, 463 proviso in, as to clerk to justices prosecuting offenders, 232 MURDER, by foreigner in foreign ship at sea, 175, 182, 183, 386 MUSICAL PERFORMANCES. See ENTERTAINMENT. MUTINY, on board ship, 114. See Revour. Act, provision in, as to questions to be put to recruit, directory, 465 NAME, effect of omitting statutory regulations as to, 490, 491 NAVAL STORES, whether possession of, penal without guilty knowledge, 119, 120, 123 NAVIGABLE RIVER, authority to repair and cleanse, 437 obstruction of, when a private actionable injury, 507 “ NAVIGATING,” or ‘‘ being ” in the limits of a port, 395 NAVIGATION, obstructing. Sec HARBour. ‘‘ NEAREST ” justice, jurisdiction of, 96. See JusTIcE. NECESSARIES, supplied to ships, 185, 429. See ADMIRALTY. NECESSARY INCIDENTS. See LocicaL ConsEQuencts. NEEDLESS MISCHIEF, powers granted by statute must be exercised so as to prevent, 436. See IMPLIED POWERS. Digitized by Microsoft® INDEX. 619 NEGATIVE ACTS, 191, &. See REPEAL, affirmative inter se, 203 NEGLIGENCE of carrier, literal construction exempting him from liability for, 16 cases of injury by, when not the subject of compensation by statute, 110 NEW JURISDICTIONS. Sec Recunations. enactments creating, to be strictly construed, 357 of Indian Legislative Council, when inoperative, 357 order of Court of Chancery made under Parliamentary authority as to service of process abroad, 357, 358 presumption against ousting established and creating, 152. Sce JuRIs- DICTION. NEW RIGHTS. See NEw JURISDICTIONS. enactments requiring companies to make compensation for lands taken, &c., intended to give compensation where right of action taken away, 109, 110 liability of owner of ship, Harbour Act not intended to create, 113 jurisdiction in case of a new offence to be tried ‘‘ according to course of common law,” 157. See JURISDICTION. jurisdiction to deal with new matter in a different mode and procedure, 449 new jurisdictions, 152, Sce NEw JURISDICTIONS. NEWSPAPER, proprietor of, liable for libel inserted by editor without his knowledge, 125 his present liability, 125, n. (c) definition of, under Act imposing a stamp on, 349. See Stame. apology for libel in, 135 NEW THINGS, comprised in remedial statutes, 93, 327, 328 sometimes also in penal, 329, 330 but sometimes not, 328, 329 remedies for enforcing rights retrospective, 271 ‘* NEXT APPOINTED” day for licensing meeting, Act to come into operation on, 9 ‘NEXT BEFORE SOME SUIT,” &., effect of literal construction in case of easements enjoyed for limited time, 10 ‘“ NEXT” SESSIONS, construed, next practicable, 234 ; and see 359, 360 table of fees to be settled at, imperative or directory, 463, 464 Digitized by Microsoft® 620 INDEX. ‘“* NOBLEMEN,” in Magna Charta following ‘‘ Magnates,” confined to magnates of a ‘‘ noble’ kind, 399. See EccLystastics. NON EST INTERPRETATIO, SED DIVINATIO, QUAi RECEDIT A LITERA, 314 NON-OBSERVANCE of regulations, &c., where statute confers a privilege or immunity, impe- rative, 453 of directory enactments, Board liable to penalty for, without reimburse- ment, 470 Sec PERFORMANCE—IMPERATIVE OR DIRECTORY. NON-PERFORMANCE OF DUTY, penalty payable to party aggrieved by, compensation for private injury, 502 application of principles on which actions were given by implication for private injuries, formerly wider, 504 NON-RESIDENT proprietor, when not an ‘‘ inhabitant,” 78 NON-USAGE, effect of as regards statutes, 515—517 NOSCITUR A SOCIIS, 398. See Worps. “NO SUCH MILITIAMAN,” construed by preamble, 53 NOTE. See BILLs. ~ of loan society, remedies on, 155, 156 penal Act inapplicable to Scotland applied to engraving of Scotch notes, 233 ‘“‘ NOT LESS THAN” so many days excludes both terminal days, 421, 422 NOTICE general language in 3 & 4 W. 4, c. 27, s. 26 (Statute of Limitations), held not to subvert the doctrine of equity as to constructive, 104 of appeal by churchwardens, may be by attorney, 87 of appeal, literal construction of, enabling one to take advantage of his own wrong, 13 of previous conviction, omission not supplied in, 20 whether written or verbal, context to be referred to, 36 of action to justices, requirement of, not impliedly repealed, 207 for anything ‘“‘ done,” when omissions included, 86 Digitized by Microsoft® INDEX. 621 NOTICE—continue d. of objection to voter, manner of service of, imperative, 454 voter’s address in such case must be as described in list of voters, and his true address is insufficient, 454 required to be signed by trustees or their clerk : signature by clerk’s clerk insufficient, 89 making complaint, time for, when meaning time for notifying intention to appeal, 235 of appeal from County Court, want of may be waived, 476 required to be filed by the Court of insolvent's petition: directory, 466 service of, by appellant, excused by death of respondent, 471 NOVA CONSTITUTIO FUTURIS FORMAM IMPONERE DEBET, NON PRETERITIS, 257 NOXIOUS drug, what an administering, 226 trades, prohibition against carrying on, construed, 409 NUISANCE REMOVAL ACT, effect of enactment in, that costs against owners should be recoverable in County Court, 192 power to Commissioners to proceed under, or under local Act, to make drains, &c., 209 NUISANCES. Sce OpstRucTION—SMALL Pox. liability of master for act of servant, 89, 125 exclusive jurisdiction of justices in respect of costs, 157 cumulative remedies, 224 removal, with and without notice, 209 power to ‘‘ suppress,” not to prevent, 327 order to abate, 384 not justified when it would lead to trespass, 384 inspection of any “‘ place,” 412 NULL AND VOID. See Vorn. NUMBER. Sce PLURAL. OATH, meaning of, by statute, 420 fraudulent agent in examination in bankruptcy after proof of offence before magistrate confessing not protected as ‘‘ disclosing” on, 245 abjuration, Act requiring M.P. to take, construed literally, 13 of office, Act requiring justices to take, directory, 464 ex officio oaths, how abolished, 194 for verification of accounts, Acts as to administration of, 207 Digitized by Microsoft® 622 INDEX. OATH—continued. illegal, Act prohibiting, not restricted by preamble, 58 power to apprehend for not taking, when required by justice, 433 OBJECTION TO VOTER, notice of, signing, delivery and receipt of. See VoTER. OBJECT OF ACT, prescriptions against alteration of law beyond, 95 OBLIGATIONS, obligations often implied from concessions of privileges or powers, 439. Sce Imptiep Dortss. presumption is against impairing, and Acts impairing are strictly construed, 249—257 of contract, construction to be avoided which would enable person by his own act to impair obligations ; or profit by his own wrong, 249 Examples— jurisdiction to discharge apprentice from indentures ‘‘on master’s appearance,” where wilfully absent, 249, &c. provision for bidding at auction to be null and void, held so only at option of seller, 251 indentures voidable at option of master of apprentice, 253 contracts under Sunday Act, 255 when primary and natural meaning given to words abridging or avoiding instruments, &c., 255, 256 Examples— assignments under Bills of Sale Act “null and void” ; in con- tracts under Shipping Acts, 255 enactment requiring approval under hand and seal, 256 statutes declaring contracts void and imposing penalty ; effect of penalty, 256 when such void or voidable, 256, 257 to exercise power of judicial nature when occasion arises, implied ; or of public concern when occasion arises, implied, 499 OBSCENE publication, evil intention not essential to offence of selling, 126 OBSERVANCE of conditions when excused, 471. See PERFORMANCE—NoN-PERFORM- ANCE. r when waived, 474 OBSOLETE, statutes not repealed by becoming, 515—517 Digitized by Microsoft® INDEX. 623 OBSTRUCTION, of railway, stopping train by signals, 336 of engine or carriage using, where railway not open and none obstructed, 336 in street, temporary only included, under “any other obstruction, nuisance,” or annoyance, 408 OBTAINING MONEY UNDER FALSE PRETENCES, 148, 325, 344 OCCUPANT, of premises, preamble referred to as to whether ou removal, old or new, was liable to rates for interval between the two occupations, 55 OCCUPIED, construed differently from ‘* Held,” 396 OCCUPIER. See RatEs—INHABITANT. different meanings of, 82, n. (a) ordinarily tenant is, though absent ; when servant not, 81 when actual occupation and not mere tenancy intended ; ‘‘owner” may mean, 81, 82, u. (a) liable for a nuisance caused by his servant, 89 a person putting cattle on lands by license of occupier, or standing on spot in a park or place, 85 OFFENSIVE, trades. Prohibition against carrying on, coustrued, 409 OFFICER. See Servant. any, detaining bankrupt. Enactment against, inapplicable to jailer, 42 OFFICIAL REFEREE, 358, n. (3) OMISSION. See ADDITION—INTERPOLATION. of a qualitication where no absurdity or injustice in, literal construction followed, 14 illegality where penalty imposed for omitting or doing an act, 483 statutes requiring notice of action for anything ‘‘done” when they include an, 86 unintended, in enactments construed beneficially as distinguished from strictly, may be supplied, 304. Sec Exampues, 304, 305 how such dealt with in penal and remedial Acts compared, 331, 332 of unnecessary or superfluous words in later of Acts in pari materia, effect of, 391 in 8 & 9 Vict. c. 106, as to leases, 392 of words material to the sense, 392 exception in 21 Jac. 1, of time whilst plaintiff ‘‘ beyond seas” omitted in later Act, 20 in Habitual Criminals Act, 20. Sce StoLEN Goons. Digitized by Microsoft® 624 INDEX. ONCE IN SIX MONTHS, computation of time, 423 ’ OPTIMA EST LEGUM INTERPRES CONSUET UDO, 366. See Usace. “OR,” read ‘\ AND,” and vice versd, 24, 284, et seq. ORDER of justices, time for appeal from, dates from verbal making, and not from day of its service, 8 though made behind appellant’s back, 9 partly bad, when valid, 493 topay under Debtors’ Act, authority tocommitfordefault. SeeDeprors' Act. against trustee in bankruptcy. Sce Destors’ Act. for production of such documents ‘as Court thinks right,” 289 of Judicature Act, construed as in earlier Statute, from which copied, 376 for outdoor relief, 443 to pay special constables, 444 enactment of certain form for, imperative, 459 authority to justice who made,it, to discharge it, not extending to his suc- cessor, 11 the like in case of protection order, 17 service of, abroad, 170 ‘ORDINARY LUGGAGE,” construed, 388 OTHER, “persons.” Sce PERSON, OUSTING JURISDICTION, construction against, 152—160, 389, Sce JURISDICTION. OUTGOING tenant. See RaTES—TENANTS. OVERSEERS. Sce Rates— CHURCHWARDEN. accounts, appeal under Act of Eliz. unlimited as to time, impliedly, re- pealed by later Act, 191 appointment of ‘‘four, three, or two,” 360 time for appointing, directory, 462 of assistant overseer, by parishioners, or Poor Law Commissioners ; when power to appoint implied, 434 limits of discretion in giving excise certificate, 149 to whom penalties recovered under Police Act are to be paid, 221 OVERSIGHT, in framers of Act, 5, 19, 22 OWNER of ferry, 501. See SpectaL DAMacE, of animal infected in market, 50 Digitized by Microsoft® INDEX. 625 OW NER—continwed, may mean ‘ occupier,” 82 of stolen goods, provision for restoration to, how restricted, 103 of ship. See SHIPOWNER. OWNER OR OCCUPIER. See OccuprgER—INHABITANT. of a ‘‘ place,” in the Betting-house Act, 86, 416 OYER AND TERMINER, COURT OF, Queen’s Bench is, for trial of Colonial governors, 419 PALATINE, county. See ARREST. PAPERS, larceny of, 343. See LaRcENyY. PARISH, repair of road by, 203. Sce REPATR—EXTRA-PAROCHIAL. PARISHIONERS, tight of, to inspect accounts of churchwardens under Statute of Eliz. ex- tended to those of guardians under Gilbert’s Act, 93 PARISH OFFICER. See OvERSEERS—CHURCHWARDEN. supplying goods to workhouse or pauper, 69, 200 by guardian, 228 innocent guardian reached whose partner sold to relieving officer, &c., 341 contract for supplying materials for repairing building not within prohibi- tion against such supplying, 69 refusing to receive pauper, 224, See PAUPER. PARI MATERIA, in construing Statutes, Acts in, to be considered, 40—42, 374, 375, 393. See CONTEXT. STATUTE. should generally receive a uniform construction, 44, 393 Acts not in, fallacious, 47 PARK, strict meaning of, in Act against common right, 346, 347 PARLIAMENT, jurisdiction of. See JURISDICTION. Courts cannot question its authority, 180 everybody bound to take notice of what is done by, 517, 518 privilege of, of peers and M.P.’s from arrest, not affected by Bankrupt Acts, 215, 377 Bills in, formerly petitions to King, 49 Digitized by Microsoft® 626 INDEX. PARLIAMENT—continued. clerk of, 519. See Dare. Parliamentary rolls, 49, 52 PAROCHIAL ASSESSMENT ACT. See Vaur. PAROCHIAL OFFICERS, time for appointment of, when directory, 462, 463 ‘*PAROCHIAL RELIEF OR OTHER ALMS,” receipt of, when disqualifying from voting confined to parochial alms, 40 PARSON. See LEAsEs. a residence of, 431. Sec RESIDENCE. PART OF CONTRACT VOID AND ILLEGAL, rules of construction as to how far it invalidates the rest, 491 —493 PARTICULAR EXPRESSIONS, meaning of some, 420—428 PARTNER, penal liability of guardian for act of co-partner, 341 receiving stolen partnership goods from, 328 under Partnership L. Am. Act, lender prohibited from ‘‘recovering” his principal before, &c., not deprived of right acquired by mortgage, 348 PARTNERSHIP, in distillery, effect of omitting name of partners in, in licence, 490 in pawnbroking, agreement for, stipulating against the painting up of names, illegal, 485, 491 PART PERFORMANCE, of contracts, operation of Statute of Frauds excluded by, 311 PARTY, to a cause, affidavit for production of documents by, under C. L. P. A., 16 party grieved, time for making his complaint, &c., 433, 434, 435 to contract, identification sufficient to satisfy Statute of Frauds, 354 “party,” for purposes of costs on appeal prosecutor construed as; used in sense of ‘‘ person,” 75 Crown never so named, 165 PASSENGER, injured by cattle on line from neglect to fence, 504 not producing railway ticket, bye-law as to penalty for, 498 waiver by, of right to carry luggage, 475 PASSING OF ACT. See Date. PAST OFFENCES, enactment for prosecution and punishment of, as if Act creating offences had not been repealed, 513 Digitized by Microsoft® INDEX. 627 PATENT, retrospective operation of disclaimer, 262 inventions, privilege of Crown to use, 373 PAUPER. See SETTLEMENT. where apprenticeship indenture was voidable only, 253 foreign woman pregnant in England giving birth abroad, 183 no settlement acquired by apprenticeship prohibited by statute, 483 removal, member of friendly society, 110 by justices not of the quorum, 191 refusal to receive, indictable, as well as summarily punishable, 224 parish officer supplying goods to, 69, 200, 228, 341. See Paris OFFICER. father of, or relation impliedly indictable for disobedience of order for maintenance of, 494 PAVING RATE. See Vestry. PAWNBROKER, larceny of ticket, 344 Act regulating trade of, imperative and directory provisions in, 491 partnership articles, 485. Sce PARTNERSHIP. PAYMENT OF MONEY, obligations for, how enforced, 497. See Money. PENAL LAWS, strict construction of, 319-—346 wide meaning given to words of, 335—341 operation of non-usage on their effect, 517 statutes, construction of, 318—346. See Strict ConsTRUCTION. generally a guilty mind essential to breach of. See Muns Rea. making Acts in unqualified terms criminal, inapplicable when act excused on recognized grounds: absenting from service; breaking prison; making revolt in a ship, 114 obstructing mail, 115 tmplied repeal in, 222—229. See REPEAL. expiring before conviction : offender not punishable, 511 offences committed against penal Act before expiring, not triable after, 611 PENAL LIABILITY. See Remepies—Action. for act of partner, 341 for act of servant, 89, 125 PENAL SERVITUDE. See Cotontzs. PENAL SUITS, limitation, 368, 369 Digitized by Microsoft® 628 INDEX. PENALTY, makes an act or omission to do the act in respect of which it is imposed illegal, and such act or omission is therefore impliedly prohibited, 256, 483 and contracts respecting it are invalidated, 482—493. See ConTRACT— Vorb. where several offenders, whether one joint or several separate penalties are intended, depends upon whether the offence is in its nature joint or several, 238 examples of distinct acts each a separate offence, 238 :— offence in assaulting and resisting customs officer; the ‘‘ offence” of dis- turbing a congregation under Toleration Act, 238 conviction of two men for assault and sentence to pay one penalty quashed ; for trespassing in search of game, &c., every offender liable, 239 where offence is in its nature single, one penalty is imposed on all jointly, i.¢., the penalty is on the offence, not on offender, 232 :— Statute Anne against keeping hounds without qualification, 239 statute against wrongful impounding of distress on pain of every person forfeiting to party grieved, &c., 240, 241 whether a penalty is to be understood as separate or joint, better to con- sider whether intended as compensation for a private wrong, or punish- ment, 241 where statute not open to doubt, 241 ;— on every person assisting in concealing prohibited goods, penalty separate, 242 for ‘‘making or suffering to continue,” &c., not applicable to ‘‘using ” building as, &c., 327 on clergymen for not wearing garments required by rubric of Ed. 6 avoided by decision of Privy Council, 371. Sce Rupric. why intention implied that justices are liable to a penalty only for infring- ing the prohibition against acting without being sworn, 464, 465- “unlawfully and wilfully,” construed in sense of being so against the criminal law where penalty imposed for killing a pigeon, 107 on beer retailer, imposed by Act for police purposes, not affected by later Excise Act, 201 for piracy of ‘‘any part” of dramatic work, 236 differently applied under different Acts to avoid repeal by implication, 221 for breach of Sunday Act subjects offender to, and renders contracts illegal, 484 imposed on sheriff or bailiff for wrongful arrest, after recovery from bailiff, takes away right of action against sheriff, 245 implied repeal of statute when penalty in increased in subsequent one, 225, 226 special jurisdiction for recovery of, 156 on millowner for neglect to fence dangerous machinery, 206 for furious riding or driving. See Hicuway Act. Digitized by Microsoft® INDEX. 629 PENALTY—continued. when board liable to, without remedy for reimbursement, 470 PENDING SUIT, effect of alteration of law on, 265, 511 “‘ PEOPLE,” . meaning of when following ‘‘ kings and princes” in maritime policy, 401 PERFORMANCE of conditions imposed by statutes, when excused or waived, 470—481 when duties or conditions are conditions precedent to exercise of juris- diction, and performance, ts impossible, they are dispensed with, 470 :— death of respondent before service of notice of appeal dispenses with service, 471 transmission of case to court when court closed, 471 where compliance impracticable without default, 472 actual payment of rent when tendered and refused, 472 service of notice of appeal where respondent purposely keeps out of the way, 472 or cannot be found after search, 472 giving security for costs within limited time when non-performance owing to act of court, 472 when the requirement is of a condition precedert to jurisdiction, compliance cannot be dispensed with, 473 :— the mother’s evidence at the hearing of a bastardy summons, 473 the time for moving the appellate court under County Court Act, 473 condition for Admiralty jurisdiction where ship lost, 473, 474 where non-observance of statutory enactments may be waived, 474—481 where made solely for benefit of individual, and may be dispensed with with- out infringing public policy, 474 Examples :— provisions for signature by sureties of lessee of tolls, 474 passenger’s right to take so much luggage, 475 a company’s right to levy maximum of tolls, 475 waiver acted on cannot be recalled, 475 :— tenant distrained on, appraisement, 475 regulations of procedure and practice not going to jurisdiction may be waived, 475 :— provisions for verification of plea in abatement, 476 want of due notice of appeal from county court, and security for costs, 476 in a criminal case, irregularity or neglect to summons, 476 notice of appeal required to be given by justices, 477 Digitized by Microsoft® 630 INDEX. PERFORMANCE—continued. not dispensed with when public policy would be infringed by non- observance, 477 invalidity of writ served on Sunday, 477 consent of prisoner at trial, 477 in criminal matters, what the law requires cannot be waived, 478 irregularities in reading over evidence, &c., with prisoner's consent, 478 statutory provisions going to jurisdiction cannot be waived, 478 transmission of case within limited time, 478 conduct of party sometimes estops him from availing himself of provistons for his benefit, 479 prisoner for debt representing a person not an attorney to be so, 479 where statute compels breach of private contract, such impliedly repealed or breach excused or considered an exception, 479, 480 :— / covenant by lessee to build workhouse on and not use land otherwise, &c., where workhouse shut up, 480 covenant to abstain from doing a thing unlawful at time, but subse- quently made lawful not affected, 480 covenant by lessee for himself and ‘“‘ assigns” not to build, and subse- quent compulsory sale of demised land, 481 prescriptions for, of public duties, when imperative, 459. See IMPERATIVE on DIRECTORY. public, of copyright music, 260. See CoprRicHT. PERIODICAL RECURRENCE OF AN ACT, computation of time, 423. See TIME. PERJURY. See AFFIDAVIT. PERMISSIVE WORDS, 286—303. Sce MopiFtcation. PERNICIOUS EFFECT of Act, where language did not carry out intention, 6 PERSON meaning of, restricted to matter, 75, and sec 40, 205, 385, 386 when understood to include or not corporation, 75, 398 whom it includes in Sunday Act, 406 “ persons belonging to a ship,” 76. Sec Sup. any person, in bye-law for election of ‘‘ any person,” meaning any eligible person, 40, 205, and see 113, 114, 216 “every person,” 99, 244 ‘all persons,” 195 power to ‘“‘all persons” to found hospitals construed not to include cor- porate bodies not haviug powers of alienation, 100, and see 101. surveyor ‘‘or other person,” 407 Digitized by Microsoft® INDEX. 631 PERSONAL injuries. See DAMAGE. character, Statutes of. See LocaL AcT—PRIvATE ACT. qualification, stringent effect given to enactments imposing regulations under penalty as to, 488 unqualified brokers incapable of recovery for services, 489, &c. See ConTRACT. “personal luggage” construed, 388 ‘all other the personal estate whatsoever ”’ in bill of sale, 409 property, except for probate, &c., has no other situs than that of owner, 178 therefore right and disposition of it governed by Jaw of domicil of owner ; assignment of under Bankrupt Acts applies to his, property every- where, 178 signature. Sec SIGNATURE—AGENT. PERSONATION OF VOTER, no offence if voter dead, 324 aliter of person ‘‘ supposed to be entitled to vote,” 488 PETITION of right, judgment on, 167. See Writ. PEW, enactments authorizing sale of fee simple in, are restricted to the easement and do not extend to soil and freehold, 108 PHOTOGRAPHY, copy by, within penalty of 8 Geo. 2, c. 94, 330, 337 PIER, licensed in Thames, damage to. See HARBOUR. PIGS, keeping in Metropolis nuisance, 327 PILOT, literal construction of Act requiring surrender of certificate, 10 construction of Act of Geo. 1, expulsion after admission, 12 of Act of 6 Geo. 4 as to compulsory pilotage, 395 of Merchant Shipping Act, 1854, s. 374, ‘‘ renewing licence,” 280 non-liability of shipowner or master for compulsorily employed pilot, 430 Thames Conservancy Act does not affect shipowner’s liability for, 210 pilotage certificate to be given by Board of Trade to master, for any ships of same owner, 361 piloting down Thames without licence, construed, 243, 244 certificate to pilot ‘‘any ships of same owner” in 355th sec, of Merchant Shipping Act, 1854, 361 Digitized by Microsoft® 632 INDEX. PIRACY, in American extradition treaty construed as confined to Acts declared such by the municipal law ; as slave trading, and excluding ordinary piracy, jure gentium, 83 jurisdiction in respect of pirates jure gentium, and savages, 174 action for selling pirated copy of work in ignorance of piracy, 193 penalty on piracy of ‘‘any part ” of dramatic work, explained, 236 PLACE, in Betting Act, ‘‘ house, room or,” 415, 416 using for purpose of betting, 341 see also, 412, 414 used with roads and streets, 399 with houses, 399 of business ; of abode, 80 ‘¢ public place,” wide meaning of, 338, 389 PLAGUE, persons coming from place infected by, when indictable for disobeying order, 494, 495 « PLANT, root or other vegetable product,”’ construed not to include young trees, 408 PLAY, prohibition against performance without licence not evaded, 135 PLEADING, several matters, Act authorizing not binding on Crown, 164 verification of plea in abatement, waiver, 476 PLEDGE, of household furniture not in way of trade not within scope of Factor’s Act, 105 of ship's certificate void and illegal, 255, 484 validity of, under Pawnbrokers’ Act, how affected, 491. See PAWNBROKER, PLURAL, in Acts since 1850, singular includes, 420 POACHING, : Act to prevent night, on lands ‘‘ whether open or enclosed,” erroneous view in earlier Act that public roads were not lands, 378 POLICE. Sec METROPOLITAN. local. See Crown. Act, not affected by later Excise Act, 201 Digitized by Microsoft® INDEX. 633 POLICE MAGISTRATE, to whom penalties recovered before, to be paid, 221 POLICE OFFICER, in execution of duty, assaulting, in ignorance that he is one, 122 POLICY. See Suip—PusLic—GeEneERAL Poricy. not within Act punishing agent intrusted with “any chattel or valuable security ” for selling, &c., 345 public, how affecting the observance of statutory provisions, 477. See PERFORMANCE, POLL, right of minority to demand, 100 POLLING station, implied duty of presiding officer to be present at, 441 POOR. See Bastarpy—FrRignpLiy Socrrty—MILITIAMAN—OVERSEERS— PaurPeR—RatEs—SETTLEMENT, POPISH RECUSANTS. Sce Roman Catuo.ics. POPULAR MEANING, given to words not having a technical one, 2, 69. See Worps. PORT, part of territory, 168 POSSESSION, actual, under Reform Act construed as in Statute of Uses, 41 offence of having criminal, of a thing, knowledge essential, 119, 120, 123. See Mens Rea—StTorEs. 2 evasive, by grantor under Bills of Sale Act as servant of grantee, 136 POST-DATED, cheque insufficiently stamped when admissible in evidence, 145 POST OFFICE, employed by, 339. See LerTEr. liability of deputy postmaster for non-delivery of letter, 501 POUND KEEPER. See Impounpine. POWERS. See ImptieD PowrRs—IMPERATIVE OR DIRECTORY. construction to prevent abuse of, 146—151. Sce ABusE oF PowERS— Acts creating new jurisdictions or delegating subordinate legislative or other powers, to be strictly construed, 357—363 Digitized by Microsoft® 634 INDEX. OWERS—continued. Lxamples— power of County Court judges to make rule for judge to appoint deputy registrar questioned, 358 of Barons of Exchequer to make practice rules for appeal to Exchequer Chamber, 358 under Licensing Act to imprison, 359 of Quarter Sessions to regulate procedure as to appeal, 360 of Judge of Court of Arches to hear cause in London, &c., 360 of justices to appoint ‘‘ four, three, or two” overseers, 360 - of Board of Trade to give certificate to pilot for ‘‘any ships be- longing to same owner,” 361 of trustees to borrow a sum specified, and levy a rate for it, 361 acts done by body incorporated for certain purposes without formalities required, &c., void, 361 to punish, none where not provided for in reservation as to past offences in repealing Act, 513 implied powers, imperative or directory, 450—470. See IMPERATIVE OR DIRECTORY ‘“*PRACTICABLE SPEED,” giving notice with all, of possession of diseased animal, 118 PRACTICE. See PRocEDURE. no objection to retrospective operation of Acts relating to, 269—273 PRAYER BOOKS, 450. See Rusric. PREAMBLE, 49, 52—66 is the key to the statute, 52 may be consulted for solving ambiguities, fixing meaning of words, or limiting Act to its scope, 52 Examples, 52—56 limiting ‘(married militiamen” removable to mean those only who had set up in towns, 53 recital in, in respect of legal witnesses to wills, of land, and enacting that legatees and devisees “attesting any will,” &c., enactment confined to wills of land, 56, &c. but can neither restrict nor extend the enacting part when language of latter plain, 56 enacting part not always co-extensive, 56 af on review of Act a wider intention than that expressed in, appears, effect to be given to it, Examples, 57—64 the preamble referring to heiresses, abduction of all girls under sixteen penal, 57 Digitized by Microsoft® INDEX, 635 PREAMBLE—continwed. enactment making void leases, &c., by any Dean and Chapter, &c., except for limited term, not narrowed by recital in, 58 referring to mischiefs consequent on inciting to sedition, and ad- ministering oaths with that object, no restriction on enacting part, 59 relating to regulation of buildings and prevention of fires in London, &c., no restriction on enactment, 59 reciting mischief of bankrupt’s ‘‘secretly conveying ” goods, held not to confine enactment to that particular mischief, 60, &c. Uf more extensive than enacting part the preamble cannot control it, 62 Examples— enactment in 3 W. & M. c. 14, s. 3, giving creditors action of “debt,” held not to authorize action for money not strictly ‘*debt,” nor for breach of covenant, 62 Act making it penal to dye seeds to give them appearance of seeds of ‘‘ another kind,’ not extended to inferior seeds, 63, &c. The proposition that the preamble may extend, but cannot restrain enacting part difficult to sustain, 64 headings to sections in modern statutes regarded as, 65 PRECISION, rule for obtaining, 345 PREFERRING INDICTMENT. See Costs. explained, 31, 71 PREROGATIVE, statutes understood not to affect, 161—167. See Crown. PRESCRIPTION ACT, ‘‘ right of common,” limited by context, 36, 401 so ‘‘any way or other easement,” confined to easements analogous to rights of way, 402 See LimiraTions—TIrHEsS—LiGH's. PRESCRIPTIONS of statutes relating to performance of public duty, directory, 460 PRESUMPTIONS, for the interpretation of statutes are— that convenience and justice are intended, 230. Sce INCONVENIENCE. injustice and absurdity to be avoided, 242 a reasonable construction to be put upon them, 230, 247 obligations not to be impaired, 249. See OBLIGATION, advantage of one’s own wrong not to be permitted, 249. See ibid., and ADVANTAGE. evasion to be prevented, 133. Sec EVASIon. and abuse of powers or discretion, 146. See ABusE or Powers, Digitized by Microsoft® 636 INDEX, PRESUMPTIONS — continued. old and established jurisdiction not to be ousted, 152. See JuRis- DICTION. nor new created, 158, ibid. the rights of Crown not to be prejudiced, 161—168. See Crown. jurisdiction not to be exceeded, 168—173. See JuRISDICTION. international law not to be violated, 173—180. See INTERNATIONAL. not to encroach upon rights, 346—348. Sce Ricut. nor to be inconsistent, 186. See REPUGNANCY. that language is used in the same sense when the same subject is dealt with at different times, 44, 385 that change of language indicates change of intention, 44 but this presumption slight, 388 not to make alteration of law beyond what it especially declares, 96— 132. See RESTRICTION. nor beyond the immediate scope and object of the Act,