/t Gt3t OJnrnpU ICaui ^rl^onl Htbraty Cornell University Library KF 425.B62 Commentaries on the written iaws and tlie Cornell University Library The original of tiiis bool< is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018806764 FOE CIVIL PEAOTICE. COMMENTARIES ON THE WRITTEN LAWS AND THEIR INTERPRETATION. BY JOEL PKENTISS BISHOP. BOSTON: LITTLE, BROWN, AND COMPANY. 1882. Entered according to Act of Congress, in the year 1873, by Joel, Peentiss Bishop, In the Office of the Librarian of Congress, at Washington Entered according to Act of Congress, in the year 1882, by Joel Prentiss Bishop, In the Office of the Librarian of Congress, at Washington. University Peksb: John Wilson and Son, CAjinriiDGE. PREFACE. The body of the work here presented consists of Books I. and II. of the second edition of my " Commentaries on the Law of Statutory Crimes." In preparing that edition, I discovered that my elucidations of the written laws and the general principles of their interpretation had almost covered the Entire subject, as respects the civil depart- ment equally with the criminal. So I added such further elucidations as should complete the subject for civil prac- tice. And to avoid compelling those who wish them to buy also the rest of the work should they not desire it, and to render this part specially convenient for every day practice and consultation, I here present it in a separate form ; appending to it the proper indexes of subjects and cases prepared solely therefor. For use in criminal prac- tice, or in civil when preferred, this work still remains a part of " Statutory Crimes," standing there in every respect precisely as given here. More matter is condensed into these comparatively few pages' than, in the forms in which the discussions of our text-books ordinarily appear, would suffice to fill a volume of the average size. But to index it required the same IV PREFACE. space as if the text had been extended in the usual way. Hence it is that the indexes seem, in extent, out of due proportion to the text. While this book is written to be consulted, it is meant also to be read. There is no other legal subject whereon a book which shall be read is so much needed. And the one here presented is of dimensions so small — the mas- tery of its contents is so completely within the hours avail- able to the busiest practitioner or judge ; — that I venture the hope of finding for it readers of these classes. To the younger practitioner, and to the student, it, if found wor- thy, will, let me add the further hope, make plainer and smoother a path trodden every day by every person whose avocations are legal. It may be cited by its title, or, if preferred, by the name of the larger volume whereof it constitutes a part, " Statutory Crimes." J. P. B. Cambridge, August, 1882. CONTENTS. BOOK I. THE WRITTEN LAWS CLASSIFIED AND EXPLAINED. Chapter Section I. Intkoductort Views 1-10' II. The Different Sorts op Written Laws and their Order of Precedence 11-17 a § 11, 11 a. Introduction. 12. Constitution of United States. 13, 14. Treaties. 15. Acts of Congress. 16. Constitution of State. 17. State Statutes. 17 a. Municipal By-laws. III. Municipal By-Laws 18-26 IV. At what Time Statutes take Effect 27-32 V. The Enactment and Validity of Statutes ... 32 a-41 § 32 a. Introduction. 33, 34. Constitutional Validity. 35-35 b. Interpreters of Constitution. 36-37 a. Constitutional Formalities at Enactment. 38-41. Defects other than Constitutional. VI. The Several Classes of Statutes distinguished . 42-42 e VII. The Several Parts of a Statute considered . . 43-67 § 43. Introduction. 44-47. The Title. 48-51. The Preamble. 52-61.- Purview and its Subdivisions. 62-65. Precedence of Provisions. 66, 67. Division into Sections. VI CONTENTS. BOOK II. THE INTERPRETATION OF WRITTEN LAWS ABSOLUTE AND WITH THE UNWRITTEN. Chapter . SECTioif VIII. The Purpose and Means of Interpretation . 68-77 § 68, 69. Introduction. 70-73. What Interpretation seeks. 74-77. Into wliat Interpreter looks. IX. Some Leading Rules op Interpretation Epit- omized 78-82 X. Prospective and Retrospective Legislation AND Interpretation 83-85 b XL Construing the Various Laws together . . 86-90 XII. The Interpretation of Written Constitu- tions 91-92 c XIII. The Meanings of the Language 92rf-104a XIV. The Computation of Time in Statutes . . . 104 6-111 XV. How THE Special Matter of a Statute in- fluences its Interpretation llla-113o XVI. How THE Doctrine that all the Laws are TO BE interpreted INTO ONE SySTEM IS practically applied TO THE STATUTES . . 113 6-121 XVII. How THE Effect of Statutory and Common- Law Provisions is curtailed and extended BY interpreting each in co.mbination with the others 122-146 § 122. Introduction. 123-125. The General Doctrine. CONTENTS. VU Chapter Section § 126-127. One Statute cutting short another. 128-130. One Statute extending another. 131-133. Common Law shortening Statute. 184-137. Common Law extending Statute. 138, 188 o. Statutes abridging and enlarging the Com- mon Law. 139, 140. Taking Qualities and Incidents from Com- mon Law. 141-144. Otherwise construed by Common Law. 145, 146. Adhering to Terms of Statute. _ XVIII. The General Doctrine op Ebpeal .... 147-163 a § 147, 148. Introduction. 149, 150. Whether by Non-user. 151-152 a. By Express Words. 153-162. By Implication. 163, 163 a. In Particular States. XIX. The Doctrine of Implied Repeal combining WITH OTHER Doctrines ........ 1636-174 § 163 b, 163 c. Introduction. 163 (f-164. Concurrence in Laws avoiding Repeal. 164 a-174. Divisibility of Laws avoiding Eepeal. XX. The Consequences following Actual and Attempted Repeals 174a-187 § 174 a. Introduction. 175-180. General Doctrine. 181-187. Specific Questions. XXI. How the Meanings of Statutes are vari- ously contracted and expanded under the Differing Reasons controlling the Inter- pretation 188-190 e XXII. To what Statutes and under what Circum- stances the Processes op Contraction and Expansion op Meanings are applied . 191-199 a XXIII. Expositions of the Strict Interpretation . 199 5-225 XXIV. The Liberal Interpretation which mingles with the Strict 226-240 VIU CONTENTS. Chapter Section XXV. Some Miscellaneous Docteines of Statutokt Interpretation 241-256 a § 241. Introduction. 242-242 b. Technical Meanings for Technical Words. 243. Grammatical Construction. 244. Provisions in the Alternative. 245-246 b. General Words following Particular. 246 c-248. Meanings overlying one another. 249, 249 a. Express Mention implying Exclusion. 249 6-253. Statutory and Common-law Remedies min- gling. 254-256. Mandatory and Directory Statutes. 256 a. Concluding Suggestions and Views. Page Index of Subjects 245 Index to the Cases cited 313 THE WRITTEN LAWS AND THEIK INTERPRETATION. BOOK I. THE WRITTEN LAWS CLASSIFIED AND EXPLAINED. CHAPTER I. INTBODUCTOEY VIEWS. § 1. Misapprehensions. — On this subject of the Interpretation of Statutes, misapprehensions more wide and injurious prevail in the profession than on almost any other in the entire law. It is often assumed to proceed without rules, and to present views changing, as in a kaleidoscope, with every legislative turn in the enactment of a new statute. But, — § 2. Doctrines Stable. — In truth, statutory interpretation is governed as absolutely by rules as anything else in the law. And the rules are of common-law origin. In large part, they adhere to the subject itself, in whose very nature they dwell, so that even legislation cannot cast them off. A few of them have, in England and some of our States, been legislated upon. But legislation on them is less extensive than on most other legal subjects.. The making of a new statute no more changes a rule of interpretation than does the deciding of a new issue in a court. So that, on the whole, the rules of statutory interpretation are specially stable. § 3. Importance of Subject. — In practical importance, there is no legal subject which approaches this. No lawyer can advise a client an hour but some question of the interpretation of a stat- ute will, directly or indirectly, come up for decision. It may not. seem difficult ; yet blunders without end are constantly being made, in questions of this class, where 'the familiar rules of inter- pretation were either unknown to or overlooked by the adviser. 3 § 6 THE WRITTEN LAWS. [BOOK I. Aud more causes are lost in court from practitioners stumbling on these questions than on any other. For the judges are but lawyers on the bench, and they need specially to be guarded against this class of mistake. § 4. Relations of Subject. — This subject is related to some others of prime importance ; deriving help from them, and in turn imparting it to them. Foremost of these is the — Interpretation of Private "Writings. — A Statute is a writing, equally with a will or a contract. And to a considerable extent the rules for the one class are those also for the other. But there are differences rendering it unsafe to follow the rules inter- changeably, except where appearing in connection with their reasons. Again, — Science of Entire Law. — Statutory interpretation, more than any other one legal subject, interweaves itself with the science and reasons of the entire law. A new statutory provision, cast into a body of written and unwritten laws, is not altogether unlike a drop of coloring matter to a pail of water. Not so fully, yet to a considerable extent, it changes the hue of the whole body ; and how far and where it works the change can be seen only by him who comprehends the relations of the parts, and discerns how each particle acts upon and governs and is governed by the others. Further to explain, — § 5. Nature of Statute. — Every statute operates to modify or confirm something in the law which existed before. No statute is written, so to speak, upon a blank in the institutions of soci- ety. No such blank exists or can exist.^ A particular thing is to-day either lawful or unlawful. It can fill no middle space — no blank — between the two. If, for example, it is lawful, a statute may make it unlawful, either generally or under specified circumstances, or it may settle a supposed doubt of its lawful- ness. In every case, it is a -thread of woof woven into a warp which before existed. It is never to be contemplated as a thing alone, but always as a part of a harmonious whole. Hence, — § 6. Knowledge of Prior Law. — Whatever may be the rules of interpretation, and however known, obviously no statute can be understood except by him who understands the prior law. Not, therefore, to theorize, but for practical help, persons seeking the meaning of statutes constantly go back to see what is the unwrit- 1 Crim. Law, I. § 6-7. 4 CHAP. I.] INTKODUCTORY VIEWS. § 8 ten or otherwise prior law; with which "lock and key," says Coke, they " set open the windows of the statute." ^ Otherwise their search after the statutory meaning would be vain. To illustrate, — § 7. Prior Law and Statute combining. — Every statute, as just said, combines and operates with the entire law whereof it becomes a part ; so that, without a discernment of the original mass, one can form no correct idea of the action of the new ele- ment. As, if the provision is, "that he who steals another's watch shall be imprisoned in the penitentiary five years," it com- bines with the prior law as follows. A babe of two years seizes the watch and throws it into the fire. Here is an act, not speak- ing now of the intent, apparently within the statutory terms. No exception in favor of babes is written in the enactment. So, if we do not look to the prior law, the babe must go to the penitentiary. But the unwritten law had already provided, that no child under seven years of age shall be the subject of criminal prosecution .2 By interpretation, therefore, the statutory pro- vision is limited by this one of the common law, — a consequence quite impossible to be seen by a man who does not know the common law. Again, if a person of mature years and well-bal- anced judgment does this thing to another's watch, does he steal it ? The answer turns on the meaning of the verb " to steal." It is a word of ancient and common use in indictments for lar- ceny. And, as the statute is a law, we know its language to be legal ; so that this word " steal " has here the same meaning as in indictments for larceny at the common law. And thus we are remitted to the question, not perhaps quite settled, whether or not the taking, to constitute larceny, must be lucri causa? Here is an obscurity arising from the not quite settled condition of the common law. But, — § 8. Obscurities. — There are other obscurities ; as, — Whether Statute or Common Law give way. — If, at the point of contact between the common law and a statute, the former is plain, still not always will it be interpreted to limit the latter, though, as just seen, it sometimes will be.* The very object of the statute may be to control the unwritten law on the particu- 1 2 Inst. 308. And see Harbert's Case, » Crim. Law, H. § 842-848. 3 Co. 11 5, 13 6. * See Bishop First Book, § 482. ••i Crim. Law, I. § 368. § 10 THE ■WRITTEN LAWS. [BOOK I. lar question ; then, of course, it must prevail. Here is one of the main difficulties of interpretation. In subsequent parts of this volume, rules will be given as helps in this difficulty, while yet no rules can make plain every thing of this sort under all circumstances. One's general knowledge of the science of legal doctrine, and power to balance things throughout the entire sys- tem of law, will then come into special service. Again, — ^ § 9. Meaning of Statute. — The particular terms of a statute may not have acquired an exact legal meaning ; then not unfre- qu.ently it will be in doubt. Or the arrangement of the sentences may be such as to leave uncertain some question concerning what was intended. In circumstances like these, rules will furnish some help, but more will come from one's general knowledge of the language, and of the entire law in its scientific combinations. § 10. statute modifying Statute. — Thus far we have contem- plated the prior law chiefly as unwritten. But some of the greatest difficulties occur where enactment has been piled on enactment, — nothing is in terms repealed, but this year a stat- ute is added to what was written last year, and so from year to year, — and, while plainly the later law repeals by construction the earlier in part, it as plainly does not in whole ; yet where the repeal begins and where ends is the question. While inter- pretation does what it can in such cases, it cannot be uniform ; for, the judges being men, they will necessarily, like other men, see things differently in cases of doubt and uncertainty. 6 CHAP, n.] DIPPEKENT SORTS OF "WEITTBN LAWS. § 11 CHAPTER II. THE DrPPERENT SORTS OF WRITTEN LAWS AND THEIR ORDER OF PRECEDENCE. § 11, 11 o. Introduction. 12. Constitution of United States. 13, 14. Treaties. 15. Acts of Congress. 16. Constitution of State. 17. State Statutes. 17 a. Municipal By-laws. § 11. Jurisdiction of Laws. — Laws, like courts, have their juris- dictions beyond which they are of no effect. Thus the statutes of one State are not of force in another,^ nor do those of the United States bind in the States persons and things within the exclusive sphere of State sovereignty. But, to the extent to which they do not overstep their jurisdictions, — Order of Precedence — How Chapter divided. — The laws, with US, have their rules of precedence and comparative force. The unwritten ones give place to the written. The order of the writ- ten, in which also they will be discussed in this chapter, is as follows : I. The Constitution of the United States ; II. Treaties ; III. Acts of Congress ; IV. The Constitutions of the Several States ; V. State Statutes ; VI. By-laws of Municipal Corpo- rations.2 1 Succession of Bofensehen, 29 La. State. 5th. The Statutes of the State. An. 711. 6th. Provincial acts that were in force 2 In a Georgia case, Lumpkin, J. oh- and binding on the 14th day of May, served : " The laws of Georgia may be 1776, so far as they are not contrary to thus graduated, with reference to their the constitution, laws, and form of gov- obligation or authority : 1st. The Con- ernment of the State. 7th. The common stitution of the United States.. 2d. law of England and such of the statute Treaties entered into by the Federal gov- laws as were usually in force before the ernment before or since the adoption of Revolution, with the foregoing limita- the Constitution. 3d. Laws of the United tion." Flint River Steamboat Co. v. Fos- Statea made in pursuance of the Consti- ter, 5 Ga. 194, 204. tution. 4th. The Constitution of the I 13 THE WRITTEN LAWS. [BOOK I. § 11 a. All are " Laws." — All these are, in legal language, "laws."i Thus,— Constitution. — A written constitution of the State or United States is a "law."^ And — Treaty. — So also is, under the Constitution of the United States, a treaty .^ Likewise — statute. — A statute, whether of a State or of the United States, is a law.* And — r By-law — Ordinance. — A municipal by-law, otherwise termed a city or town ordinance, is, as the name imports, a law.^ I. The Constitution of the United States. § 12. Supreme. — The Constitution of the United States is, within its sphere, to use its own term, "supreme."^ While it remains unaltered, it is subject to no power above it, for there is none. It binds the people who made it, equally with all else within its jurisdiction.^ AU laws, in whatever form or from whatever source proceeding, contrary to it, are void.^ II. Treaties. § 13. Complications and Distinctions. — Treaties are, in some respects, as to their nature and the jurisdiction to interpret them, distinguishable from the other laws. Therefore, on the subject of their precedence, there are peculiarities and complications of doctrine, admonishing us to caution. 1 Crim. Law, I. § 1-3. « Wells v. Buffalo, 14 Hun, 438; La- 2 Railroad u. McClure, 10 Wal. 511 ; cey v. Waples, 28 La. An. 158; Albrecht Board of Public Scliools v. Patten, 62 u. The State, 8 Texas Ap. 216 ; Monroe u. Misso. 444 ; Pacific Railroad v. Maguire, The State, 8 Texas Ap. 343 ; The State 20 Wal. 36 ; Farmers' Bank v. Gunnell, 26 v. Moore, 13 Vroom, 208 ; Jones v. Perry, Grat. 131 ; Medical College v. Muldon, 46 10 Yerg. 69. Ala. 603 ; Daily v. Swope, 47 Missis. 367 ; ^ Jones w. Fireman's Fund Ins. Co. 2 The State v. Weston, 4 Neb. 216 ; Lehigh Daly, 307 ; The State v. Williams, 11 S. C. Valley Railroad v. McFarlan, 4 Stew. Ch. 288. 706. See Cox v. The State, 8 Texas Ap. « Const. TJ. S. art. 6. 254. Effect. — There are constitutional ' Dodge v. Woolsey, 18 How. U. S. provisions which, from the special nature 331, 347 ; Vanhorne v. Dorrance, 2 Dall. of the case, cannot have practical effect 304, 308. until legislation has lent its aid. The State ^ n,, ; Calder v. Bull, 8 Dall. 386, .399 ; V. Dubuclet, 28 La. An. 698; post, § 14. Dartmouth College v. Woodward, 4 s Const. U. S. art. 6 ; The Cherokee To- Wheat. 518, 625 ; Livingston v. Moore, 7 bacco, 11 Wal. 616 ; Hauenstein v. Lyn- Pet. 469 ; Craig v. Missouri, 4 Pet. 410, ham, 100 U. S. 483 ; Taylor v. Morton, 2 464; Green v. Biddle, 8 Wheat. 1. Curt. C. C. 454. 8 CHAP. II.J DIFFEKENT SORTS OP "WRITTEN LAWS. §13 Nature — Constitutional Provisions. — By the law of nations, a treaty is a mutual pledge of faith between sovereign powers.^ Such, therefore, we must deem it to be in our governmental sys- tem ; and, under the Constitution of the United States, it is also law.2 The words are, that, among other things, " all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land ; and the judges in every State * shall be bound thereby, any thing in the constitu- tion or laws of any State to the contrary notwithstanding." * The President has the " power, by and with the advice and con- sent of the Senate, to make treaties, provided two-thirds of the senators present concur." ^ Thereupon " the judicial power shall extend to all cases in law and equity arising under . . . treaties made or which shall be made." ^ The States are forbidden to enter into treaties.^ One plain deduction is, that — Superior to State Laws. — A treaty is superior both to the con- stitution and to the statutes of a State ; and to it, in a case of conflict, they must yield. Of course, a treaty, to have this effect, must be within the treaty-making power .^ But — 1 Vattel Law of Nations, b. 2, c. 12 ; Story Const. § 1818. 2 Ante, § 11 a. 8 Blandford v. The State, 10 Texas Ap. 627. * Const. U. S. art. 6. 6 Const. TJ. S. art. 2, § 2. 6 Const. U. S. art. 3, § 2. 1 Const. U. S. art. 1, § 2. 8 Ware v. Hylton, 3 Dall. 199 ; Baker V. Portland, 5 Saw. 566; Gordon o. Kerr, 1 Wash. C. C. 322 ; Fisher v. Harnden, 1 Paine, 55 ; Succession of Mager, 12 Eob. La. 584, 5^8; Succession of Dufour, 10 La. An. 391 ; Succession of Prevost, 12 La. An. 577 ; People v. Gerke, 5 Cal. 381 ; Fellows V. Blacksmith, 19 How. U. S. 366 ; Orr V. Hodgson, 4 Wheat. 453. It is beliered that the doctrine of the text is correct, both in reason and authority, beyond controversy. Still the late Wil- liam Beach Lawrence said in a brochure on "Foreign Treaties of the United States, in Conflict with State Laws relative to the Transmission of Real Estate to Aliens," published in 1871 : " Whether the treaty-making power of the general government is competent to enter into stipulation with foreign powers, aflect- ing the transmission of real estate and other matters generally considered to be of State cognizance, has been made a question in the Supreme Court of the United States. Though that tribunal had previously recognized as the su- preme law of the land the treaty of 1794 with England, by which, according to Attorney-General Cushing, 'all impedi- ment of alienage was absolutely levelled to the ground despite the States,' Fair- fax V. Hunter, 7 Cranch, 603, yet in the case of Frederickson v. The State, 23 How. U. S. 445, it abstained, even though the question before it referred merely to personal property, from expressing an opinion as to the competency of the gov- ernment of the United States to regulate, by treaty, testamentary dispositions or laws of inheritance within the States." p. 45-47. Now, the Constitution of the United States declares treaties to be su- preme over State laws and constitutions in just the same words as it declares itself to be. How, then, can there be doubt? And, in point of authority, in the last case before me on the subject, 9 § 14 THE WRITTEN LAWS. [BOOK I. § 13 a. By whom Expounded and Enforced — (Distinguished from Statute). — A treaty differs greatly in some respects from a stat- ute. If parties, under the latter, acquire rights, they go to the courts to obtain them, and from their determination thereon there is no appeal to any other department of the government. Hence the courts are necessarily the exclusive expounders of the statute, ' and, so far as its validity is a question of constitutional law, of the Constitution also. But, if another nation claims of ours a right under a treaty, it does not ordinarily undertake the enforce- ment thereof in our courts, it makes application to the executive department of our government. Hence, to the extent to which this doctrine is applicable, the ultimate interpretation of the treaty is beyond the judicial jurisdiction. So likewise the power which makes and conducts war may refuse to fulfil a treaty, and the courts must follow the lead. But, in the absence of any lead by the treaty-making or the war power, the courts must construe and enforce a treaty as they would any other law. So in reason the question stands, and the adjudications are not widely different. Now, — § 14. Treaty and Statute in conflict. — Congress, by the Consti- tution, has the power to declare war.^ As a measure of war, therefore, it can abrogate, hence it can violate, a treaty. But, aside from this power, as it cannot make a treaty, so therefore it cannot annul one. Such plainly is the view which should gov- the Supreme Court of the United States cheat under the laws of a State. Orr v. held that our treaty with the Swiss Con- Hodgson, 4 Wheat. 453. By the British federation superseded the Virginia State treaty of 1794, ' all impediment of alien- laws of inheritance. Said Swayne, J. in age was absolutely levelled with the delivering the opinion : " In Chirac v. ground despite the laws of the States. Chirac, 2 Wheat. 259, it was held by this It is the direct constitutional question in court, that a treaty with France gave to its fullest conditions. Yet the Supreme her citizens the right to purchase and Court held that the stipulation was within hold land in the United States, removed the constitutional powers of the Union, the incapacity of alienage, and placed Fairfax v. Hunter, 7 Cranch, 608, 627. them in precisely the same situation as if See Ware o. Hylton, 3 Dall. 199, 242 ; * they had been citizens of this country. 8 Opin. Att.-Gen. 417. Mr. Calhoun, after The State law was hardly adverted to, laying down certain exceptions and quali- and seems not to have been considered a fications which do not affect this case, factor of any importance in this view of says : ' Within these limits all questions the case. The same doctrine was reaf- which may arise between us and other firmed touching this treaty in Cameal u. powers, be the subject-matter what itraay, Banks, 10 Wheat. 181, and with respect fall within the treaty-making power and to the British treaty of 1794, in Hughes may be adjusted by it.' Treat, on the V. Edwards, 9 Wheat. 489. A treaty stip- Const, and Gov. of the U. S . 204." Hauen- ulation may be effectual to protect the stein v. Lynham, 100 U. S. 483, 489, 490. land of an alien from forfeiture bj- es- ' Const. U. S. art. 1, § 8. 10 CHAP. II.] DIPPEEBNT SORTS OP WRITTEN LAWS. §14 em the legislative body, and from which it cannot without a dereliction of duty depart. The result of which is, that, in gen- eral, a treaty takes precedence of a statute. But, if Congress, having power to override a treaty as an act of war, in disregard of its constitutional duty herein trenches upon it from other motives, can the courts look into the motives ^ and hold the stat- ute to be therefore void? The judicial doctrine appears to be established that they cannot, so that practically an act of Con- gress is superior to a prior treaty, while also a treaty may super- sede an act of Congress.^ > Post, § 38. 2 The Cherokee Tobacco, 11 Wal. 616 ; United States v. Tobacco Factory, 1 Dil. 264 ; Webster v. Reid, Morris, 467 ; Ropes V. Clinch, 8 Blatch. 304; Langford v. United States, 12 Ct. of CI. 338. In an able argument, now before me, by Hon. William Lawrence, he says : " It is so well settled that Congress can by law dis- pose of the public lands, that no one con- troverts it. It is equally certain, and will not be denied, that this power is superior to and controls aM. prior attempts by treaty to dispose of them. Every treaty with foreign nations or dependent tribes of Indians yields to a later act of Congress in relation to a subject-matter within its jurisdiction. Congress has passed many such acts, and the courts yield 'to the mil of the legislature ' always." He refers to " Act July 17, 1798, 1 Stat. 578 ; 2 Curt. C. C. 460; 3 Opin. Att.-Gen. 737; act March 26, 1804 ; Poster v. Neilson, 2 Pet. 253, 303, 307; joint resolution, April 10, 1869, 16 Stat. 55; Osage Treaty, 1865, 14 Stat. 687 ; act July 15, 1870, § 12, 16 Stat. 362 ; same treaty, art. 1, 2, and 17 ; act Peb. 21, 1863, 12 Stat. 658-1101 ; act Peb. 16, 1863, 12 Stat. 652; act Jan. 29, 1861, erected State of Kansas ; art. 5, Cherokee Treaty, Dec. 1835, and other treaties ; [United States v. Lynde], 11 Wal. 632; Taylor v. Morton, 2 Curt. C. C. 454, 458 ; The Clinton Bridge, 1 Woolw. 150, 155; Mitchell v. United States, 9 Pet. 711, 712; act June 30, 1834, 4 Stat. 729; act March 30, 1802, 2 Stat. 141." The reader perceives that the question is here put in not quite the same form as in my text, though the effect of the doctrine is not different. So, in the Supreme Court of the United States, Swayne, J., in deliver- ing the opinion, said : " The effect of treaties and acts of Congress, when in conflict, is not settled by the Constitution. The question is not involved in any doubt as to its proper solution. A treaty may supersede a prior act of Congress, Poster V. Neilson, 2 Pet. 253, 314, and an act of Congress may supersede a prior treaty, Taylor v. Morton, 2 Curt. C. C. 454; The Clinton Bridge, 1 Woolw. 150, 155 The consequences, in all such cases, give rise to questions which must be met by the political department of the government. They are beyond the sphere of j udicial cog- nizance." The Cherokee Tobacco, supra, at p. 621. Another learned judge said : "Government is certainly under the strongest moral obligation to preserve in- violate the faith of all treaties ; but if the legislative power, which in such mat> ters is sovereign, sees proper to violate this duty, there is no power in the judi- ciary to prevent it. True, a treaty is by the Constitution declared to be a supreme law of the land, but so is an act of Con- gress. The latter may repeal the former in the same manner that one statute may repeal another. It is an act of sovereign- ty, which, if the judiciary could arrest, they might paralyze all the energies of the war itself, on the ground that the declaration of war was a violation of treaties." Mason, C. J., in Webster u. Reid, supra, at p. 477, 478. The fact that the Constitution does not in words declare the order of precedence between a statute and a, treaty should, it is be- lieved, have no weight in the argument. It does not say whether itself or a statute shall be of the greater effect; and the 11 §14 THE WRITTEN LAWS. [book I. Judicial Effect — Interpretation. — In the absence of any action of the poUtical department binding the courts, they take judicial notice of a treaty, and give it effect, precisely as they do the Con- stitution and acts of Congress.^ Hence they must and do inter- pret the treaty ; ^ yet, where the political department has spoken, they follow its interpretation,^ deeming themselves to be, in the words of Eyre, C. J., in an English case, " not even the expound- ers of treaties."* When a statute and a treaty have been made with reference to each other, to carry out a common object, they are to be construed together.^ And no statute will be so con- strued as to violate a treaty, when any other interpretation is reasonably permissible.^ Treaty requiring Legislation. — A treaty, like a clause of the Constitution,^ requires in some circumstances a statute to give it practical effect, and in others it does not. Without legislation it may annul a conflicting State law.^ If, for example, it declares the subjects of the foreign power entitled to hold or inherit lands in our States the same as though they were citizens of the United States, it overrides at once every conflicting State law and becomes law in each State.^ In the nature of things, no act of result that a statute is void which violates it, is a mere deduction of construction. By a like construction it results, " that," in the words of Swayne, J., in the above case of The Cherokee Tobacco, " a treaty cannot change the Constitution, or be held valid if it be in violation of that in- strument." p. 620. Under the Constitu- tion, the treaty-making power is not in Congress, but in the President and Sen- ate. Congress can declare war. In any exercise of the war power, it may violate a treaty. But, by construction, since it cannot make one, it cannot otherwise than as a, measure of war unmake one. Still the courts do, doubtless properly, decline jurisdiction to rectify a wrong of this sort. 1 Martin v. Hunter, 1 Wlieat. 304; Clark V. Braden, 16 How. U. S. 635. 2 Crim. Proced. I. § 224 ; Holden v. Joy, 17 Wal. 211; Gray v. Coffman, 3 Dil. 393; Hicks d. Butrick, 3 Dil. 413; Oliver v. Forbes, 17 Kan. 113 ; Fox v. Southack, 12 Mass. 143; Commonwealth V. Bristow, 6 Call, 60 ; Fellows v. Black- 12 smith, 19 How. IT. S. 366 ; Wilson v. WaU, 34 Ala. 288. ' United States o. Arredondo, 6 Pet 691, 711 ; Foster v. Neilson, 2 Pet. 253, 309 ; Gracia u. Lee, 12 Pet. 511 ; United States V. Reynes, 9 How. U. S. 127, 153, 154 ; WiUiams v. Suffolk Ins. Co. 13 Pet. 415, 420. * Marryat v. Wilson, 1 B. & P. 430, 433. 6 Reg. V. Wilson, 3 Q. B. D. 42. 6 Leavenworth, &e. Railroad v. United States, 92 U. S. 733, 742. 1 Ante, § 11 a, note ; post, § 92 J ; Green V. Aker, 11 Ind. 223; Commonwealth v. CoUis, 10 Philad. 430 ; Commonwealth v. Harding, 6 Norris, Pa. 348. 8 Fisher v. Harnden, 1 Paine, 55 ; Opinion of Justices, 68 Maine, 589. 8 Chirac v. Chirac, 2 Wheat. 259 ; Orr V. Hodgson, 4 Wheat. 453 ; Hughes V. Edwards, 9 Wheat. 489 ; Carneal u. Banks, 10 Wheat. 181 ; People v. Gerke, 5 Cal. 381 ; Succession of Prevost, 12 La. An. 577 ; Succession of Dufour, 10 La. An. 391 ; Succession of Mager, 12 Rob. La. 584 ; Droit d'Aubalne, 8 Opin. Att.- Gen. 411. CHAP, n.] DIFFERENT SORTS OF WEITTEN LAWS. § 16 Congress is required to give effect to such a treaty. But one which provides for the surrendering, to the foreign power, of certain classes of offenders against its laws would seem not to confer, without legislation, on any particular officer a jurisdiction to carry the stipulation into effect ; hence, to render it effectual, an act of Congress is required.* Still there are distinctions on this subject not best to be entered into here.^ Marshall, C. J. once stated in the Supreme Court of the United States the doc- trine as follows : " Our Constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself, without the aid of any legislative provision. But when the terms of the stipulation import a contract, when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial depart- ment; and the legislature must execute the contract before it can become a rule for the court." ^ III. Acts of Congress. § 15. In General. — Whether we deem an act of Congress su- perior or inferior to a treaty, or equal with it, the national Consti- tution places it, like this instrument itself,* above every sort of State law, written or unwritten, constitutional or statutory.^ To have this effect it must, of course, be within the powers con- ferred on Congress.^ IV. The Constitutions of the Several States. § 16. In General. — Though, as just explained, the constitution of a State must give way to the Constitution of the United States, and to national treaties and statutes made in pursuance thereof, in all other particulars it is the supreme law of the par- 1 In re Metzger, 1 Barb. 248. As con- 257 ; Eobbins's Case, Whart. St. Tr. 392 ; firming this principle, see Turner v. s. c. nom. United States ii. Nash, Bee, American Baptist Missionary Union, 5 266. McLean, 345 ; Taylor v. Morton, 2 Curt. ^ Foster «. Neilson, 2 Pet. 253, 314. C. C. 454. See In re Metzger, 5 How. And see Taylor v. Morton, 2 Curt. C. C. U. S. 176. 454 ; Jones v. Walker, 2 Paine, 688. 2 Consult British Prisoners, 1 Woodb. * Ante, § 12. & M. 66 ; Ex parte Metzger, 5 N. Y. Leg. ^ Const. U. S. art. 6. Obs. 83 ; In re Kaine, 10 N. Y. Leg. Obs. « Ante, § 13; Story Const. § 1837. 13 § 17 a THE WKITTEN LAWS. [BOOK I. ticular State, and to it all conflicting statutes and other laws must yield.^ V. State Statutes. § 17. In General. — Practically, in most things, the statutes of the State are the highest authorities known to the court ; because only of comparatively a few questions do the superior laws above mentioned have jurisdiction. A statute is superior alike to the unwritten law, which it supersedes in a case of conflict, and to a municipal by-law.^ Even — Colonial Statute. — A colonial statute appears to have the same effect as any other.^ VI. By-laws of Municipal Corporations. § 17 a. In General. — By-laws of municipal corporations are subject to be controlled by statutes, and in the main by the unwritten law, giving way when in conflict with either.* We shall now devote to them a separate chapter. 1 In re Goode, 3 Mlsso. Ap. 226 ; Lof tin ' Brice v. The State, 2 Tenn. 254. V. Watson, 32 Ark. 414 ; Sovereign v. The * Field v. Des Moines, 39 Iowa, 575 ; State, 7 Neb. 409 ; Indiana v. Agricultural Vestry v. Mathews, 4 Des. 578 ; The Society, 4 Norris, Pa. 357 ; Pierce v. State v. Curtis, 9 Nev. 325; Thomas v. Pierce, 46 Ind. 86; The State u. Lancas- Eichmond, 12 Wal. 349; Lisbon v. Clark, ter, 6 Neb. 474; Frye v. Partridge, 82 18N.H. 234; Canton w. Nist, 9 Ohio State, 111. 267 ; Haley v. Philadelphia, 18 Smith, 439 ; Thompson v. Mt. Vernon, 11 Ohio Pa. 45. State, 688 ; The State v. Crummey, 17 2 Field V. Des Moines, 39 Iowa, 575, Minn. 72; The State v. Lindsay, 34 Ark. and other cases cited to the next section. 372. 14 CHAP. III.] MUNICIPAL BY-LAWS. § 18 CHAPTER III. MUNICIPAL BY-LAWS. § 18. By-law defined. — A by-law of a corporation is a regula- tion which itself has established for the government of its' own internal affairs. Blackstone terms it a " private statute ; " ^ and it has the force of a statute within its narrow sphere.^ Municipal By-law — Ordinance. — A municipal by-law, there- fore, is a by-law of a municipal corporation. Ordinance- is a word practically synonymous.^ And the by-laws of cities are in most localities commonly called city ordinances ; even they are popu- larly so where the more appropriate legal word is by-law. How Municipal Corporation created. — Municipal corporations, such as cities and towns, are, in England, created either by act of Parliament or by charter from the crown ; usually by the lat- ter,* regulated, in modern times, more or less by statute.® With us, they exist only by statute. Legislative Power over Charter. — The legislature can amend or repeal an act of incorporation at pleasure,^ or can force such act on the corporators against their will,'' except as or unless restrained 1 He mentions, among the powers of 6 Sloan v. The State, 8 Blackf. 361 ; a corporation : " To make by-laws or pri- The State j>. Branin, 3 Zab. 484 ; Martin vate statutes for the better government v. Dix, 52 Missis. 53 ; New Orleans v. of the corporation ; which are binding Cazelar, 27 La. An. 156 ; Stilz v. Indian- upon themselves, unless contrary to the apolis, 55 Ind. 515 ; Giboney v. Cape law of the land, and then they are void. Girardeau, 58 Misso. 141 ; Philadelphia This is also included by law in the very v. Fox, 14 Smith, Pa. 169 ; Layton v. New act of incorporation ; for, as natural rea- Orleans, 12 La. An. 515 ; Annapolis v. son is given to the natural body for the The State, 30 Md. 112 ; The State v. governing it, so by-laws or statutes are a Union, 4 Vroom, 350. And see The State sort of political reason to govern the body v. Person, 3 Vroom, 134 ; Brackett v. politic." 1 Bl. Com. 476. People, 72 111. 593. 2 Hopkins v. Swansea, 4 M. & W. 621, ' Paterson v. Society, 4 Zab. 385; San 641 ; The State v. Williams, 11 S. C. 288. Francisco v. Canavan, 42 Cal. 541 ; The 8 Jones V. Sanf ord, 66 Maine, 585, 588 ; State v. Jennings, 27 Ark. 419 ; City v. The State w. Jersey City, 8 Vroom, 348. Sheilds, 52 Misso. 351. See People v. * Willcock Corp. 25. Bennett, 29 Mich. 451 ; Manly v. Ealeigh, 6 As, see 40 & 41 Vict. o. 69. 4 Jones Eq. 370 ; People v. Chicago, 51 15 § 19 THE -WRITTEN LAWS. [BOOK I. by the constitution.^ But not unfrequently an act incorporating a municipality is passed to be accepted or rejected by those to be affected tliereby as they may choose, and such proceeding is always permissible,^ while still it is not necessary.^ Incidental Power to make By-laws. — An incident of every such corporation, even where its charter or incoi-porating act is silent on the subject, is the power to make by-laws.* Commonly the authority is conferred in express words, and it is competent for legislation to do this ; ^ but the general power results equally from the very existence of the corporation.® § 19. Extent of Incidental Power. — Neither a general statutory power to make by-laws, " nor," in the words of an English au- thor, " a general custom to make by-laws, will give an ordinance any greater claim to validity than if it had been made under the incidental power in every corporation." ^ But it is difficult to say exactly how far this general power extends ; because, in most instances, our incorporating acts define the powers,^ so that the decisions under them do not help us on this question.^ And, as further complicating the authorities, there are in England pre- scriptive corporations, having local customs,^" among which are rights founded on ancient and long usage to establish by-laws not within the general authority; but there are no corporations of this sort in the United States." Still we have authorities ena- 111. 17, 58 ; Harward v. St. Clair, &c. be included, by law, in the very act of Drainage Co. 51 111. 130 ; Loringston v. incorporating, as is also the power to sue. Wider, 53 111. 302. to purchase, and the like. For, as reason 1 The State u. McFadden, 23 Minn, is given to the natural body for the gov- 40 ; Milner v. Pensacola, 2 Woods, 632 ; erning of it, so the body corporate must Bank of State v. Bank of Cape Fear, 13 have laws, as a politic reason, to govern Ire. 75 ; The State i;. Canaday, 73 N. C. it; but those laws must ever be subject 198 ; Mosher u. Independent School Dis- to the general law of the realm, as sub- trict, 44 Iowa, 122. ordinate to it. And therefore, though 2 Post, § 36 ; Lammert v. Lidwell, 62 there be no proviso for that purpose, the Misso. 188 ; St. Louis v. Eussell, 9 Misso. law supplies it." Norris v. Staps, Hob. 507. 210 b, 211 a. ' Blessing v. Galveston, 42 Texas, 641. ^ Willcock Corp. 159. * Blackstone, ut sup. ; Willcock Corp. 8 Kyle v. Malin, 8 Ind. 84. Generally 99, 100 ; Bex v. Westwood, 2 Dow & C. the express legislative power is to be 21, 4 Bligh, N. s. 213, 7 Bing. 1, 4 B. & C. deemed simply an addition to the im- 781 ; Commonwealth u. Stodder, 2 Cush. plied. The State v. Morristown, 4 Vroom 562, 569 ; Angell & Ames Corp. § 110, 325. 57. See Parker v. Baker, Clark, 223. 5 The State v. Noyes, 10 Fost. N. H. » Commonwealth v. Stodder 2 Cush 279; The State w. Simonds, 3 Misso. 414. 562. " " Though power to make laws is i" Willcock Corp. 74. given by special clause in all incorpora- 'i Commonwealth v. Stodder, 2 Cush. tions, yet it is needless ; for I hold it to 562, 569. 16 CHAP. III.] MUNICIPAL Br-LA"WS. 20 bling us to say, that a by-law made under the general power must, to be good, not contravene the other laws or their policy,^ or exceed the proper local or other jurisdiction of the cor- poration,^ or be otherwise oppressive or unjust.^ To particu- larize : — § 20. Express Authority — Constitutional. — Any proper by- law made under express authority from the legislature is good, provided the authorizing act did not exceed the constitutional power. But such act may be unconstitutional, therefore void, and therefore the by-law be void.* Or, if the by-law does not follow, or if it exceeds, the power, it will be void.^ A fortiori, therefore, it will be void if itself unconstitutional.^ Among — By-laws commonly permissible, — yet more or less resting on statutory authority, are the following : forbidding the removal of house dirt and offal from the city, except by license ; ' regulating the speed of vehicles drawn through the streets ; ^ ordaining rules for passenger transportation in the city, the carriages, prices, and the like ; ^ providing for a city market, and prohibiting persons to occupy stands within the near streets, for the vending of such things as are sold in the market ; ^^ and, in a limited degree, regu- 1 Ante, § 17 a ; post, § 22 ; Mobile v. Yuille, 3 Ala. 137, 143 ; Canton v. Nist, 9 Ohio State, 439. 2 Eex V. Breton, 4 Bur. 2260, 2267; Commonwealth v. Turner, 1 Cush. 493, 496 ; Williams «. Davidson, 43 Texas, 1 ; The State v. Mobile, 5 Port. 279 ; Thomas V. Eichmond, 12 Wal. 849; The State v. Hoboken, 4 Vroom, 280. 3 Mobile V. Yuille, supra ; Norris v. Staps, Hob. 210 4 ; CulUnan v. New Or- leans, 28 La. An. 102 ; Shreveport v. Levy, 26 La. An. 671 ; Bowling-Green V. Carson, 10 Bush, 64; Commonwealth V. Wilkins, 121 Mass. 356 ; Jones v. San- ford, 66 Maine, 585; Fieri v. ShieldsborOi 42 Missis. 493 ; Columbia v. Beasly, 1 Humph. 232 ; Barling u. West, 29 Wis. 307 ; Yates v. Milwaukee, 10 Wal. 497 ; St. Paul V. Traeger, 25 Minn. 248 ; Ward V. Greeneville, 8 Baxter, 228. < Gunnarssohn ». Sterling, 92 HI. 569 ; Mowery v. Salisbury, 82 N. C. 175 ; The State V. Canaday, 73 N. C. 198 ; Fretwell V. Troy, 18 Kan. 271; Schwuhow v. Chicago, 68 El. 444 ; Wheeler v. Cincin- nati, 19 Ohio State, 19; Ex parte Hiu:l, 2 49 Cal. 557; Sullivan v. McCammon, 51 Ind. 264 ; Grover v. Huokins, 26 Mich. 476; Wright v. Boston, 9 Cush. 238; Leach o. Elwood, 3 Bradw. 453; The State V. Williams, 11 S. C. 288. 6 Sullivan v. Oneida, 61 III. 242 ; Lo- gan^w. Pyne, 43 Iowa, 524; Williams v. Davidson, 43 Texas, 1; Sumter «. Des- champs, 4 S. C. 297. 6 Clinton v. Phillips, 58 HI. 102; Jud- son V. Eeardon, 16 Minn. 431. ' Vandine, Petitioner, 6 Pick. 187. 8 Commonwealth v. Worcester, 3 Pick. 462 ; Chicago, &c. Railroad u. Engle, 76 111. 317. ' Johnson v. Philadelphia, 10 Smith, Pa. 445; Logan v. Pyne, 43 Iowa, 524; Commonwealth v. Gage, 114 Mass. 328; Commonwealth v. Matthews, 122 Mass. 60; St. Louis v. Grone, 46 Missp. 574; The State ». Herod, 29 Iowa, 123; Ex parte Slaren, 3 Texas Ap. 662. 1° Nightingale, Petitioner, 11 Pick. 168 ; Commonwealth v. Rice, 9 Met. 253 ; Buf- falo V. Webster, 10 Wend. 100. And see Huntington v. Cheesbro, 67 Ind. 74 ; Com- monwealth ». Wilkins, 121 Mass. 356; 17 § 21 THE WKITTEN LAWS. [BOOK I. lating the times for opening and closing places of business.^ But, in general, a by-law in restraint of trade, labor, or business can be justified only by express statutory authority .^ A city adjoin- ing navigable waters may make reasonable by-laws concerning quarantine and wharves within its limits.^ But it cannot thus prevent persons not its inhabitants from taking shell-fish in a navigable river within its bounds ; because this would be in con- travention of a common right.* Yet, if the inhabitants of a town have the exclusive right of fishing in its waters, such a by-law is within its power;^ A city corporation cannot make a by-law which shall permit one person to carry on a dangerous business and prohibit another having equal claim. So it has been ad- judged,^ but the doctrine is plainly subject to wide exceptions and qualifications. § 21. Nuisance — Bawdy-House — Keeping Dog. — Without special legislative authority, a by-law cannot make abatable as a nuisance what is not so by the general law, thus destroying private property ; ^ nor, on the other hand, can it authorize the creation of a nuisance, whether public or private.^ But if the statute creating the corporation authorizes it to make by-laws relating to nuisances, an ordinance is within the authority which subjects to punishment the owners of houses of ill-fame, or those reputed to be such, knowing the facts.® And, under this sort of authority, a by-law may subject the keeping of a dog to a tax, and Bowling-Green v. Carson, 10 Bush, 64; 'Wooden Buildings. — According to Hud- Commonwealth V. Brooks, 109 Mass. 356 ; son v. Thome, also, the charter of the St. Paul V. Traeger, 25 Minn. 248. city of Hudson does not empower it to 1 Ward I). Greeueville, 8 Baxter, 228, restrict the erection of wooden build- 229; Platteville u. Bell, 43 Wis. 488 ; The ings, or to limit the size of buildings; State V. Welch, 36 Conn. 215 ; Maxwell and an ordinance prohibiting a hay-press u. Jonesboro, 11 Heisk. 257. within certain limits is void. But gener- " Barling v. West, 29 Wis. 307 ; Dun- ally, in our cities, such things may be ham V. Rochester, 5 Cow. 462 ; Plaque- more or less regulated by by-laws. And mine v. Roth, 29 La. An. 261 ; Norrls v. see Crim. Law, I. § 1160, 1151 ; Fielding Staps, Hob. 210 h ; Rochester v. Upman, v. Rhyl Imp. Com. 3 C. P. D. 272 ; Wau- 19 Minn. 108 ; Hesketh v. Braddock, 3 pun v. Moore, 34 Wis. 450. Bur. 1847 ; Harrison v. Godman, 1 Bur. ' Pieri v. Shieldsboro, 42 Missis. 493 ; 12 ; Clark u. Le Cren, 9 B. & C. 52. See Yates v. Milwaukee, 10 Wal. 497. And post, § 22. gee Lake v. Aberdeen, 57 Missis. 260; 8 Dubois V. Augusta, Dudley, Ga. 30; Waupun v. Moore, 34 Wis. 460. St. Louis V. McCoy, 18 Misso. 238. e Pettis v. Johnson, 66 Ind. 139 ; The 4 Hayden v. Noyes, 6 Conn. 391. State v. Lindsay, 34 Ark. 372. See Frank- 6 Rogers v. Jones, 1 Wend. 237. Un Wharf v. Portland, 67 Maine, 46. 6 Hudson V. Thome, 7 Paige, 261. And » McAlister v. Clark, 33 Conn. 91 ; see CuUinan v. New Orleans, 28 La. An. The State v. Williams, 11 S. C. 288 • The' 102 ; Shreveport v. Levy, 26 La. An. 671. State v. Reckards, 21 Minn. 47 ' 18 CHAP, in.] MUNICIPAL BY-LAWS. §22 authorize the killing of the animal as a nuisance if the tax is not paid.' § 22. Requisites enumerated. — By-laws must be consistent with - the act or charter of incorporation, not conflicting with it in let- ter or manifest intention ; ^ harmonious with the general statutory and common law,^ which they cannot unauthorized supersede ; * reasonable and beneficial ; ^ not, in general, retrospective ; ^ not restraining trade," though a by-law merely in regulation of trade is good.^ Penalty — Forfeiture. — Every law has necessarily its penal sanction, and a rule not enforceable is not law.* So that the power of making by-laws carries with it the power to render them effectual.!" But, without express statutory authority, a municipal corporation can inflict only the milder penalties. '^ It 1 Mowery v. Salisbury, 82 N. C. 175. See Leach v. Elwood, 3 Bradw. 453; Louisburg v. Harris, 7 Jones, N. C. 281. 2 Ante, § 17 a, 19 ; Hoblyn v. Rex, 2 Bro. P. C. 329 ; Rex v. Cutbush, 4 Bur. 2204 ; Rex v. Cambridge, 2 Selw. N. P. 11th ed. 1176 ; Reg. v. Darlington School, 6 Q. B. 682 ; Commonwealth v. Fahey, 5 Gush. 408 ; Rochester v. Collins, 12 Barb. 559 ; ClintonviUe v. Keeting, 4 Denio, 341 ; Indianapolis v. Fairchild, 1 Ind. 315, Smith Ind. 122; The State v. Beaufort, 2 Rich. 496 ; The State v. Hay, 29 Maine, 457 ; Morris v. Rome, 10 Ga. 532 ; Cincin- nati V. Gwynne, 10 Ohio, 192 ; Cincinnati K.Buckingham, 10 Ohio, 257; AngeU & Ames Corp. § 343-346. ' Robinson v. Mayor, 1 Humph. 156 ; Chapman v. Miller, 2 Speers, 769 ; The State V. Savannah, T. U. P. Charl. 235 ; Welch V. Stowell, 2 Doug. Mich. 382; AngeU & Ames Corp. § 332-334 ; Cincin- nati c^. Rice, 15 Ohio, 225 ; Louisville v. Roupe, 6 B. Monr. 591 ; Martle v. Akron, 14 Ohio, 586 ; Reg. v. Edmonds, 4 Ellis & B. 993, 1 Jur. n. s. 727, 30 Eng. L. & Eq. 379 ; Thompson v. Mt. Vernon, 11 Ohio State, 688 ; Seneca County Bank v. Lamb, 26 Barb. 595 ; Lake v. Decatur, 91 111. 596; Gridley v. Bloomington, 88 111. 554. But a by-law may sometimes punish the same offence which is indictable under a general law of the State. The State v. Plunkett, 3 Harrison, 5. See post, § 23. * March v. Commonwealth, 12 B. Monr. 25; Commonwealth v. Turner, 1 Cush. 493. And see Aberdeen v. Saun- derson, 8 Sm. & M. 663 ; Cincinnati t'. Bryson, 15 Ohio, 625; AngeU & Ames Corp. § 333. ^ Scriveners' Company v. Brooking, 2 Gale & D. 419, 6 Jur. 835; Jlex v. York, 3 B. & Ad. 770 ; Elwood v. Bullock, 6 Q. B. 383 ; Commonwealth v. Robertson, 5 Cush. 438 ; Commonwealth v. Worcester, 3 Pick. 462, 473 ; Kennebec and Portland Railroad v. Kendall, 31 Maine, 470 ; WU- lianis o. Augusta, 4 Ga. 509; Common- wealth a. Pittsburgh, 2 Harris, Pa. 177 ; Mayor and Alderman v. Maberry, 6 Humph. 368 ; Boston v. Shaw, 1 Met. 130 ; Austin v. Murray, 16 Pick. 121, 125; Fielding v. Rhyl Imp. Com. 3 C. P. D. 272 ; The State u. Jersey City, 8 Vroom, 348 ; Corrigan v. Gage, 68 Misso. 541 ; Ex parte Frank, 52 Cal. 606 ; AngeU & Ames Corp. § 347-351. 6 Howard v. Savannah, T. U. P. Charl. 173. ' Ante, § 20. 8 Pierce v. Bartrum, Cowp. 269 ; Cud- don V. Eastwick, 1 Salk. 148 ; Common- wealth V. Worcester, 3 Pick. 462, 473; Vandine, Petitioner, 6 Pick. 187; City Council V. Ahrens, 4 Strob. 241 ; Morris V. Rome, 10 Ga. 532 ; AngeU & Ames Corp. § 335. See ante, § 20. 3 Crim. Law, I. § 6-8. " Reinhard v. New York, 2 Daly, 243. 11 Post, § 403 ; Brieswick v. Brunswick, 51 Ga. 639, 642. 19 § 23 THE -WRITTEN LAWS. [BOOK I. cannot, for example, create a forfeiture.^ Yet it can provide "reasonable and proper fines " for the violators of its by-laws.^ And under statutory authority it may ordain forfeitures.^ Binds whom. — A by-law is properly for the government only of members of the corporation. But strangers coming within the corporate limits are amenable thereto.* So also their prop- erty, while within those limits, is subject to the operation of the by-law.^ § 23. By-law and General Law forbidding same Act. — Some very complicated questions, on which the courts are not quite harmonious, have arisen where a by-law is made against a thing already punishable under the general law. The terms of stat- utes and by-laws so differ that a minute discussion of these ques- tions will not be attempted, since it would occupy too much space. In some of the States, under their statutes, it is deemed not competent for the corporation to render punishable, by by- law, what is already a crime under the general law.^ In other States this is not held, and effect is given to by-laws making pun- ishable what is so also under the general law. And where the terms of the incorporating act clearly include this power, such result would appear to be unquestionable.' But plainly, as a by-law is inferior to a statute, which it cannot supersede,^ the 1 Kirk V. Nowill, 1 T. R. 118 ; Dono- authorized the by-law. See further on Tan V, Vicksburg, 29 Missis. 247 ; Angell this point, Commonwealth v. Stodder, 2 & Ames Corp. § 340. Cush. 562, and Commonwealth v. Chase, 2 1 Dil. Mun. Corp. 2d ed. § 272, re- 6 Cush. 248. And see Taylor v. Ameri- ferring to Fisher v. Harrisburg, 2 Grant, cus, 39 Ga. 59. Pa. 291 ; Trigally v. Memphis, 6 Coldw. ' Spitler v. Young, 63 Misso. 42 ; Hog- 382 ; Zylatra v. Charleston, 1 Bay, 382 ; gatt " Bigley, 6 Humph. 236, 239. See, Cudden v. Estwick, 6 Mod. 123. See also also, on this point, Homey «. Sloan, Tobacco Pipe Makers v. Woodroffe, 7 B. supra. & C. 838; Mobile v. Yuille, 3 Ala. 137. 6 Washington v. Hammond, 76 N. C. ^ Ottumwa V. Sehaub, 52 Iowa, 515 ; 33, 35, 36 ; Jefferson City v. Courtmire, 9 Mobile and Ohio Railroad v. The State, Misso. 692 ; Savannah v. Hussey, 21 Ga. 29 Ala. 573 ; Charleston v. Goldsmith, 2 80. And see Adams v. Albany, 29 Ga. Speers, 428. 56 ; The State v. Brady, 41 Conn. 588. * Pierce v. Bartrum, Cowp. 269; Cud- ' Rogers v. Jones, 1 Wend. 237 ; The don V. Eastwick, 1 Salk. 192 ; Wliitfield State v. Bergman, 6 Oregon, 341 ; Hamil- V. Longest, 6 Ire. 268 ; Horney ». Sloan, ton «. The State, 3 Texas Ap. 643 ; Maher 1 Ind. 266 ; Vandine, Petitioner, 6 Pick. «. The State, 53 Ga. 448 ; Robbins v. Peo- 187 ; Willcock Corp. 105; Charleston v. pie, 95 111. 175; Greenwood v. The State, Pepper, 1 Rich. 364; Gosselink «. Camp- 6 Baxter, 567 ; Polinsky v. People, U bell, 4 Iowa, 296; Kennedy v. Sowden, Hun, 390; The State r. Williams, 11 S. C. 1 McMul. 323. Commonwealth v. Dow, 288. 10 Met. 382, seems to have proceeded * Ante, § 17 a, 19. jUpon the language of the statute which 20 CHAP, ni.] MUNICIPAL BY-LAWS. § 24 liability to indictment under the general law remains, unless the authority to enact the by-law is broad enough to include such superseding of the statute.^ On this principle, — Arrest and detain without Warrant. — A statute of Maine having the provision, that, if an officer " shall detain any offender, with- out warrant, longer than such time as is necessary to procure a legal warrant," he shall, &c., — the courts hold a town by-law, giving the officer power to detain forty-eight hours without war- rant, repugnant to the statute and void.^ Now, — § 24. Second Jeopardy. — Assuming the general law not to be repealed by the by-law and both to be in force, can there be a conviction under both? Not all by-laws make the thing they prohibit a crime.^ The imposition of a penalty does not render the transaction criminal ; a penal action is civil.* And it is familiar doctrine that both a civil and criminal proceeding are maintainable for the same wrong.° So that, where the by-law simply provides a penalty for the wrong, not constituting it a crime, and it is a crime by the general law, the familiar principles permit a double prosecution on both.^ Again, the thing declared criminal by the one may not be identical with that so declared by the other ; and then neither prosecution will be an impedi- ment to the other, though there is but one transaction.' But where precisely the same act is a crime under both the general law and the by-law, there are authorities which hold that a con- viction or acquittal under the one will bar proceedings under the other.8 The result of which is, that the by-law repeals the gen- eral law for the cases wherein the prosecution is first had under it. The better doctrine, therefore, is believed to be the contrary ; namely, that, just as the same act may be an offence against both the United States and a State, and punished by both,® so also it 1 Fant V. People, 45 111. 259 ; The « Crim. Law, I § 32 and notes. State V. Crummey, 17 Minn. 72. « lb. § 264 et seq., 990. 2 Burke v. Bell, 36 Maine, 317. « ib. § 1076 ; The State v. Crummey, 8 Post, § 403, 404 ; Rex v. Sharpies, 4 17 Minn. 72 ; Shafer v. Mumma, 17 Md. T. R. 777 ; Davenport v. Bird, 34 Iowa, 331 ; Berry v. People, 36 III. 423. 524 J Hoyer u. Mascoutah, 59 III. 137 ; 1 McRea u. Americus, 59 Ga. 168 ; Cooper V. People, 41 Mich. 403 ; The Mayo v. James, 12 Grat. 17 ; The State v. State V. Decker, 46 Conn. 241 ; Platte- Sly, 4 Oregon, 277 ; Lewis v. The State, ville V. Bell, 43 Wis. 488 ; Jenkins v. 21 Ark. 209. Cheyenne, 1 Wy. Ter. 287 ; People v. 8 The State v. Thornton, 37 Misso. Manistee, 26 Mich. 422 ; Schmeider v. 360 ; Maher v. The State, 53 Ga. 448 ; McLane, 4 Abb. Ap. 154 ; Greensburgh The State v. Cowan, 29 Misso. 330. V. Corwin, 58 Ind. 518. » Crim. Law, I. § 987-989. 21 § 25 THE WBITTEK LAWS. [BOOK I. may be against a municipal corporation and a State. It might not be judicious or merciful to resort to both proceedings ; but some of our courts, it is believed the greater number, maintain the right.i " The powers which are exercised by a city government," observed Perkins, J. in an Indiana case, " are, it thus appears, superadded to those exercised by the State in the same locality." ^ § 25. Interpretation of Power to" make By-laws. — The charter, or statutory power of enacting by-laws, is to be construed harmo- niously with the unwritten rule. Thus, — Reasonable — Penalty reasonable. — A statute authorized a city corporation "to license bakers, and regulate the weight and price of bread, and prohibit the baking for sale except by those licensed." And this was held to include the power to attach a penalty ^ to the by-law ; but it must be reasonable. And when the penalty was, that the offender pay a fine not exceeding fifty dollars, to be recovered before the mayor, the by-law was ad- judged void.* So also, as under the unwritten law, it must in other respects be reasonable.^ Again, — Notice. — As, under the unwritten rule, one cannot lawfully be proceeded against without notice,^ it is plain that a legislative power to impose forfeitures does not authorize a by-law providing for a forfeiture without notice to the party.' 1 Levy V. The State, 6 Ind. 281 ; Waldo limit of the penalty be fixed beyond V. Wallace, 12 Ind. 569, 584 ; Greenwood which the fine cannot extend, it does not V. The State, 6 Baxter, 567 ; Hamilton v. remove the objection. The reason as- The State, 3 Texas Ap. 643 ; The State signed is, that it permits the corporation V. Bergman, 6 Oregon, 341 ; The State v. to be a judge in its own cause. Nor, it Williams, 11 S. C. 288. is said, can the penalty of a by-law ex- 2 Waldo u. Wallace, supra, p. 584. tend to the forfeiture of goods, unless See also Gardner v. People, 20 111. 430 ; such power be expressly given by the Kobbins v. People, 95 III. 175. charter." Again : " We also incline to ' Ante, § 22. doubt the propriety of that portion of the * Mobile V. YuiUe, 3 Ala. 137. Or- by-law which forfeits such bread as is not mond, J. observed : " What would be of the weight required by the ordinance ; a reasonable penalty cannot, from the as also that portion which requires twen- nature of the thing, admit of a general ty dollars to be paid by the baker as a rule applicable to all cases, but must in license, unless the latter can be supported every case be determined by the nature under the taxing power of the corpora- of the offence intended to be prohibited, tion. Though doubtless the corporation Some general rules, however, may be laid could require a fee for the issuance and down as applicable to all cases. The registration of the license." p. 144. penalty must be a sum certain, and can- ' The State k. Jersey City,8Vroom, 348. not be left to the arbitrary assessment of * Post, § 141 ; Bishop First Book, § 24; the corporation court, to be determined The State v. Newark, 1 Dutcher, 399; according to the nature of the offence. Corliss v. Corliss, 8 Vt. 373, 389. It is also said, that, although the utmost ' Kosebaugh u. Saffin, 10 Ohio, 31. 22 CHAP. III.] MUNICIPAL BY-LAWS. § 26 § 26. Holding By-law void. — Whenever a corporation under- takes to establisli an unauthorized by-law, the courts hold it to be void.* But a by-law may be good in part, and void as to the rest.2 We have seen,^ that, if a by-law is, for example, unrea- sonable, it is void ; and the question whether it is reasonable or not is to be decided, not by the jury, but by the court.'' And see Columbus v. Arnold, 30 Ga. 517 ; Keokuk v. Dressell, 47 Iowa, 597 ; Har- Lesterjelle v. Columbus, 30 Ga. 936 ; The baugh v. Monmouth, 74 111. 867. State V. Morristown, 5 Vroom, 445. ' Ante, § 22. 1 Commonwealth v. Robertson, 5 Cush. * Commonwealth v. Worcester, 3 Pick. 438; Austin ». Murray, 16 Pick. 121, 127. 462, 473; The State v. Jersey City, 8 2 Post, § 34; Rogers v. Jones, 1 Wend. Vroom, 348. 237, 260 ; The State v. Lincoln, 7 Neb. 377 ; 23 § 28 THE WEITTEN LAWS. [BOOK I. CHAPTER IV. AT -WHAT TIME STATUTES TAKE EFFECT. § 27. Doctrine defined. — In the absence of any express pro- vision, a statute has effect through the entire country from the first moment of the day on which it is enacted, reckoning from twelve o'clock of the preceding night ; except that, when a con- stitutional or other like right would thereby be impaired, the actual hour and minute of its receiving the executive approval may be inquired into, and it will date from the instant thus ascer- tained. To particularize and explain : — §28. Ancient Rule — (Changed in England). — Formerly, in England, the rolls of Parliament were made up by the judges after its adjournment ; no dates were given to the several acts, but all, says Dwarris, were "strung together" as one statute. The only date appearing in the rolls was that of the assembling of Parliament ; ^ therefore, the record being the sole guide to the courts, they held every statute to have gone into operation on that day.^ Nor was it otherwise with an act which itself pro- vided that it should take effect " from and after its passage." ^ Upon this, the statute of 33 Geo. 3, c. 13, provided, that, after 1793, the parliamentary clerk should indorse on every act, imme- diately after its title, the day on which it received the royal assent ; " and such indorsement shall be taken to be a part of such act, and to be the date of its commencement where no other commencement shall be therein provided." And by construc- tion, the act takes effect from the first moment of such day.* ViTith us. — In North Carolina, the majority of the court fol- lowed the letter of the' old English rule, and held that acts of 1 Dwar. Stat. 2d ed. 16, 31, 34, 86, 37, let «. Taylor, 5 Jones, N. C. 36. See Peo- 460. pie V. Clark, 1 Cal. 406. 2 The Ann, 1 Gallie. 62 ; Panter v. At- < Tomlinson v. Bullock, 4 Q. B. D. 230, torney-General, 6 Bro. P. C. 553. 282. ' Latless v. Holmes, 4 T. E. 660 ; Ham- 24 CHAP, rv.] WHEN STATUTES TAKE EEFECT. §29 Assembly go into operation from the first day of the session.'' But generally in our States the day — not the hour — on which was taken the last step in the making of a statute appears in the record thereof ; and the rule, subject to exceptions to be presently considered, is, that no divisions of a day are allowable, and it goes into operation from the first moment of the day on which it receives the executive sanction.^ § 29. Fractions of Day. — Doubtless if the record showed the hoar and minute at which a statute was enacted, the courts would give it effect only from such minute.^ Still this conclu- sion would in some cases be open to question. The rule prevails widely, that the law does not regard fractions of a day.^ And a day begins at midnight.^ But this rule is not unyielding ; it bends, permitting the real fact to be shown and prevail, where justice requires.® Thus, when a deed was delivered at a certain 1 Smith V. Smith, Mart. N. C. 26; Hamlet v. Taylor, supra. 2 In re Welman, 20 "Vt. 653 ; United States V. Williams, 1 Paine, 261 ; In re Howes, 6 Law Reporter, 297 ; 1 Kent Cora. 454, 455 ; Matthews v. Zane, 7 Wheat. 164, 211 ; Heard v. Heard, 8 Ga. 380 ; The State v. Click, 2 Ala. 26 ; Smets V. Weathersbee, E. M. Charl. 537 ; Rath- bone V. Bradford, 1 Ala. 312 ; Goodsell V. Boynton, 1 Scam. 555 ; Temple v. Hays, Morris, 9 ; Taylor v. The State, 31 Ala. 383 ; The State v. Bank of South Caro- Una, 12 Rich. 609 ; Wood v. Fort, 42 Ala. 641 ; Lapeyre v. United States, 17 Wal. 191, 198. See In re Richardson, 6 Law Reporter, 892, 2 Story, 571. In Johnson a. Merchandise, 2 Paine, 601, it was said that a, statute takes effect from its pas- sage ; a private executive instruction, from the time of being communicated to the person. In Tennessee, "it is," said Turley, J., "provided by the eighteenth section of the 11th article of the Consti- tution of the State of Tennessee, that ' no hill shall become a law until it shall be read and passed on three different days in each house, and be signed by the re- spective speakers.' But when this has been done, we think the law takes effect from the date of its passage by relation. The duties [duty] to be performed by the speakers in signing the statutes is not of a legislative, hut ministerial character. And to cause the operation of a law to depend upon the period of time when this duty is performed would introduce too great uncertainty in the administration of justice, as there would be nothing but the memory of man to resort to for the purpose of ascertaining it, — the signa- ture not being dated, and there being no record of the time kept." Consequently it was held that a repealing statute avoids an act done by authority of the repealed law, in the interval between its passage and the signatures. Dyer v. The State, Meigs, 237, 255. In Process of Enact- ment. — A statute has no greater effect on transactions executed during the pro- cess of its enactment, or while it was awaiting the executive sanction, than on things done before it was in agitation. Wartman v. Philadelphia, 9 Casey, Pa. 202. 8 See Westbrook Manuf . Co. v. Grant, 60 Maine, 88. < Bishop Con. § 261, 749; Portland Bank v. Maine Bank, 11 Mass. 204 ; Reg. V. Edwards, 9 Exch. 32, 23 Law J. n. s. Exch. 42 ; Edwards v. Reg. 9 Exch. 628; Eeg. V. St. Mary, Warwick, 1 Ellis & B. 816 ; Commercial Steamship Co. v. Boul- ton, Law Rep. 10 Q. B. 346 ; Duffy v. Ogden, 14 Smith, Pa. 240; Lester v. Gar- land, 15 Vea. 248. 5 Bishop Con. § 261, 749. 6 Chick V. Smith, 8 Dowl. P. C. 837; 25 § 29 THE WBITTBN LAWS. [BOOK I. hour to the register, who immediately commenced the registra- tion of it, but without indorsing on it the time of its delivery, and two hours later an execution was levied on the property it conveyed, the court permitted the hour of delivery for registra- tion to be proved by parol, to give it precedence over the levy.^ And, in general, the priority of acts may be shown when mate- rial.2 Now, — Ex post Facto. — Plainly, in reason, if a man does a thing at five o'clock in the morning, and it is then lawful, he cannot be punished for it under a statute passed at five o'clock in the even- ing of the same day, without violating the constitutional inhibi- tion of ex post facto laws.^ If the act were performed at five o'clock in the evening, and the statute passed at the same hour the next morning, all would admit that it could not be applied to the transaction ; while still it is not easy to see how the one case could differ in principle from the other. Hence, — Time of Day provable, and when. — In these cases, and in cases less strong, including civil ones where justice imperatively de- mands, the doctrine, at least the better doctrine, of the present day permits proof, even by parol, of the exact hour when a stat- ute became a law, giving effect to it oiibf from such hour.* Accordingly, when a petition in bankruptcy was filed in court about noon, and late in the evening of the same day a bill passed Congress and was approved by the President repealing the bank- rupt act, but saving cases " commenced before the passage of this act," Story, J. held that the proceeding could go on to its conclu- sion.^ In a general way it has been adjudged, that the time when an act is passed and signed can appear only in itself or by the record ; ^ but, in reason, a rule of this sort, while convenient in practice, cannot overturn a principle of natural justice, much less control a provision in the Constitution. In accordance with this Campbell v. Strangeways, 3 C. P. D. 105; And see, to the like effect, 3 Opin. Att.- Lockett V. Hill, 1 Woods, 552 ; Combe v. Gen. 82. Pitt, 3 Bur. 1423, 1434; Johnson v. Pen- » In re Welman, 20 Vt. 653; Latless nmgton, 3 Green, N. J. 188. v. Holmes, 4 T. R. 660. And see United 1 Metts V. Bright, 4 Dev. & Bat. 173. States v. Williams, 1 Paine, 261. In Peo- 2 Lang V. Phillips, 27 Ala. 311 ; Cin- pie v. Clark, 1 Cal. 406, the majority of cinnati Bank v. Burkhardt, 100 U. S. the court held the day to be divisible, as 686. respects the time when a statute goes » Crim. Law, I. § 279 et seq. into operation, being the moment of its * Salmon o. Burgees, 1 Hughes, 356 ; passage. See also United States v. Ar- In re Wynne, Chase Deo. 227, 251. nold, 1 Gallis. 348 ; Lang v. Phillips, 27 'In re Richardson, 2 Story, 571. Ala. 311; Kimm w. Osgood, 19 Misso. 60. 26 CHAP. IV.] WHEN STATUTES TAKE EFFECT. §31 Tiew, it has been held that a court is not forbidden to inform itself of the real date of the President's approval of an act. Therefore, where the date on its face was simply " December 4," it was adjudged competent, in order to ascertain the year, to resort to the records in the Secretary of State's office, and to the journals of Congress.^ Again, — Precedence. — When the order in which were passed two or more statutes bearing the same date becomes important, the chapter numbers may be looked into,^ as doubtless any thing else calculated to inform the judicial mind. § 30. Knowledge of Statute impossible. — The rule, where a knowledge of the statute could not have reached the person charged with violating it, is considered in another connection.^ § 31. Modifications of foregoing Rules. — To avoid practical hardships from the foregoing rules, there are in some of the States special provisions of law postponing the taking effect of statutes ' GardBer v. The Collector, 6 Wal. 499. And see Kennedy v. Palmer, 6 Gray, 316 ; Turley v. Logan, 17 111. 151 ; Prescott V. Illinois and Michigan Canal, 19 lU. 324 ; McCuUoch v. The State, 11 Ind. 424 ; Southwark Bank v. Common- wealth, 2 Casey, Pa. 446; post, § 37. The above case of Gardner v. The Col- lector, and the reasoning of Miller, J. in the opinion, seem in effect to sustain the following just propositions; namely, 1. It being the duty of the judges to take ju- dicial notice of the contents of public statutes, which need not be proved before them as facts, they must also determine the dates of their enactment. 2. In as- certaining these, they should look at whatever is adapted to inform their minds. The date attached to the Presi- dent's signature, if full, will ordinarily suffice. If not full, resort may be had to the journals, the time of the publication of the statute, and other sources, to sup- ply the deficiency. If the ends of justice require the precise moment to be ascer- tained, this may be done in any way sat- isfactory to the minds of the judges. It may even be shown that the date which the President attached to his signature is an error. The learned judge con- densed the doctrine thus : " We are of opinion, on principle as well as au- thority, that, whenever a question arises in a court of law of the existence of a statute, or of the time when a statute took effect, or of the precise terms of a statute, the judges, who are called upon to decide it, have a right to resort to any source of information which in its nature is capable of conveying to the judicial mind a clear and satisfactory answer to such question; always seeking first for that which in its nature is most appropri- ate, unless the positive law has enacted a different rule." p. 511. Consult, as perhaps contra, The State u. Young, 3 Vroom, 29. President's Proolamation. — The President's proclamation of June 13, 1865, annulling restrictions upon in- ternal trade in the late insurgent States, was held to take effect on the beginning of the day. United States v. Norton, 97 U. S. 164, decided on United States v. Lapeyre, 17 Wal. 191. And, it is believed, any executive act carrying clemency to the subject, and not impairing the rights of other subjects, would be so construed. 2 Metropolitan Board of Health v. Schmades, 3 Daly, 282, 10 Abb. Pr. u. s. 205. And see St. Martin v. New Orleans, 14 La. An. 113. s Crim. Law, I. § 296. 27 § 31 a THE WRITTEN LAWS. [BOOK I. until a specified time after their enactment,^ or until they are published.^ Or the statute itself may, and it often does, fix a time different from the general one, when no constitutional inhi- bition prevents. But to work this result, its words must be direct and unequivocal.^ No legislative act can bind future legis- lation ; * therefore, if, while there is a general statutory provision postponing the taking eff'ect of statutes until a specified number of days after their publication or enactment, a statute is passed on its face to go into operation immediately, or at a different time from the general one, it does so ; this later expression of the legis- lative will prevailing over the earlier.^ Effect of postponing Statute. — A statute which is to become law at a future day is a nullity in the mean time. It does not even operate as notice to persons to be affected by it,^ nor does a re- pealing clause in it put an end to the law to be repealed.^ One cannot be punished under it for what he does before the day of its taking effect.^ § 31 a. " From and after," — If a statute is to take effect " from and after " a day named, there is believed to be no certain rule either that it shall be on such day or on the next following one, but the entire provision and the special nature of the case will determine.® Where the words were " from and after the passage 1 Cooper V. Curtis, 30 Maine, 488 ; " Price v. Hopkln, 13 Mich. 318. See Chapman v. The State, 2 Head, 36; Graves v. The State, 6 Texas Ap. 228; West Feliciana Railroad ti, Johnson, 5 Paddon v. Bartlett, 3 A. & E. 884, 896 j How. Missis. 273 ; Files v. Robinson, 30 Wood v. Riley, Law Rep. 8 C. P. 26. Ark. 487 ; The State v. Little Rock, &c. ^ McArthur v. Franklin, 16 Ohio State, Railway, 31 Ark. 701 ; Whitehead v. 193 ; Spaulding v. Alford, 1 Pick. 33. Wells, 29 Ark. 99 ; Johnson v. The State, ^ xhe State v. Bond, 4 Jones, N. C. 9. 3 Lea, 469 ; Barry v. Viall, 12 R. I. 18. » Bishop Con. § 749 ; Lester o. Gar- 2 Tredway o. Gapin, 1 Blackf. 299 ; land, 15 Ves. 248 ; Pugh v. Leeds, Cowp. The State v. Donehey, 8 Iowa, 396; 714; Wilkinson v. Gaston, 9 Q. B. 137; Calkin «. The State, 1 Greene, Iowa, 68; Isaacs v. Royal Ins. Co. Law Rep. 5 Ex. The State v. Stevenson, 2 Pike, 260 ; The 296 ; Wilcox v. Wood, 9 Wend. 346 ; Deyo State V. Superior District Court, 29 La. v. Bleakley, 24 Barb. 9; Sheets v. Selden, An. 223; Stine v. Bennett, 13 Minn. 153; 2 Wal. 177 ; Peables v. Hannaford, 18 Smith V. Hoyt, 14 Wis. 252. See Parkin- Maine, 106. " Where time is computed son V. The State, 14 Md. 184 ; The State from an act done, the general rule is to V. Barrow, 80 La. An. 657 ; Thomas v. include the day. Where it is coraputed Scott, 23 La, An. 689 ; Scott y. Clark, 1 from the day of the act done, the day is Iowa, 70 ; Pilkey v. Gleason, 1 Iowa, 522. excluded It has been adopted by this 3 Wheeler v. Chuhbuck, 16 111. 361. court, and must be regarded as settled in * The State v. Oskins, 28 Ind. 364. this commonwealth." Chapman J, in At 5 Hunt V. Murray, 17 Iowa, 313 ; Or- kins v. Sleeper, 7 Allen, 487, 488, Contra, leans v. Holmes, 13 La. An. 502. Bemis v. Leonard, 118 Mass. 502, 508. 28 CHAP. IV.] WHEN STATUTES TAKE EPFECT. § 32 of this act," the day of its enactment was held to be included ; Story, J. observing, that, by the general rule, "where the com- putation is to be made from an act done, the day on which the act is done is to be included." ' But, where the words were, " from and after " a specified future date, the enactment was held not to go into operation until the day next succeeding such date.^ And probably many courts will hold to the distinction indicated by these two cases.^ § 32. Treaties. — In international law, and as a contract be- tween nations, a treaty takes effect from the time it is signed ; its subsequent ratification relating back to such time. And this is held of our treaties with other nations. They are not, in this respect, affected by the special terms of our Constitution.* In a general way, the same rule governs a treaty ceding territory to us. " It is true," said Wayne, J., " that ... its national char- acter continues for all commercial purposes ; but full sovereignty, for the exercise of it, does not pass to the nation to which it is transferred until actual delivery. But it is also true, that the exercise of sovereignty by the ceding country ceases, except for strictly municipal purposes, especially for granting lands. And for the same reason in both cases ; because, after the treaty is made, there is not in either the union of possession and the right to the territory which must concur to give plenum dominium et utile." ° Yet, as a " law " under our constitution,^ and affecting private rights, it, like a statute which is fully enacted only on receiving the executive sanction, dates simply from the rati- fication.^ 1 Arnold v. United States, 9 Cranch, ^ Davis v. Concordia,.9How. U. S. 280, 104. s. p. United States v. Williams, 1 289 ; United States v. Eeynes, 9 How. Paine, 261 ; People i: Clark, 1 Cal. 406. U. S. 127, 148. And see Montault v. And see Hamlet v. Taylor, 5 Jones, N. C. United States, 12 How. U. S. 47 ; United 36 ; In re Welman, 20 Vt. 65-3. Contra, States v. Pillerin, 13 How. U. S. 9 ; United Kex V. Moore, Jefferson, 9. States v. Killieux, 14 How. U. S. 189 ; 2 Koltenbrock v. Cracraft, 36 Ohio United States v. Ducros, 15 How. U. S. State, 584. See The State v. Perrysburg, 88 ; Innerarity v. Mims, 1 Ala. 660 ; Mims 14 Ohio State, 472. v. Huggins, 1 Ala. 676. 8 See the first note to this section ; 6 Ante, § 11, 13, 14. Watson V. Pears, 2 Camp. 294. ^ Haver u. Yaker, supra ; United States * Haver v. Yaker, 9 Wal. 32; Hyltqn v. Arredondo, 6 Pet. 691. And see United V. Brown, 1 Wash. C. C. 343, and cases in States v. Percheman, 7 Pet. 51 ; Yeaker the next note. See Succession of Schaf- v. Yeaker, 4 Met. Ky. 33. fer, 13 La. An. 113. 29 § 33 THE WRITTEN LAWS. [BOOK I. CHAPTER V. THE ENACTMENT AND VALIDITY OP STATUTES. § 32 a. Introduction. 33, 34. Constitutional Validity. 35-35 6. Interpreters of Constitution. 36-37 a. Constitutional Formalities at Enactment. .38-41. Defects other than Constitutional. § 32 a. How Chapter divided. — We shall consider, I. The Constitutional Validity of Statutes enacted in due Form ; II. The Interpreters of the Constitution ; III. Constitutional Formalities at the Enactment ; IV. Defects other than Con- stitutional. I. The Constitutional Validity of Statutes enacted in due Form. § 38. People Sovereign — Legislative Bodies. — It is the theory of our State and national governments, that sovereignty dwells primarily with the people. For the orderly exercise of it, they have delegated so much as they chose, and no more, to the vari- ous official bodies and persons. Legislative powers have thus been conferred on our State legislatures and on Congress, the limits whereof, beyond which all attempted acts are nullities, are defined in the constitutions of the several States and the United States.! Hence, — ITuconstitutioual Statutes. — A statute, State or national, thus in excess of constitutional power, is deemed simply void, having no effect, direct or collateral, for any purpose whatever.^ Not 1 And see Tennessee v. Davis, 100 v. Clark, 26 Ala. 439 ; Strong v. Daniel, U. S. 257, 275. 5 Ind. 348 ; Cincinnati, &c. Railroad v. 2 1 Kent Com. 448-455 ; Marbury v. Clinton, 1 Ohio State, 77 ; Frye v. Par- Madison, 1 Cranch, 137 ; The State v. tridge, 82 111. 267 ; National Bank v. Fleming, 7 Humph. 152 ; Bliss v. Com- Southern Porcelain Manuf . Co. 55 Ga. 86 ; raonwealth, 2 Litt. 90 ; Bank of St. The State v. Osawkee, 14 Kan. 418. Mary's t. The State, 12 Ga. 475 ; Haley 30 CHAP, v.] ENACTMENT AND VALIDITY. § 34 even, like an erroneous judgment rendered by a competent tribu- nal on a valid law,^ will it protect an officer in performing any of its requirements, or obeying process founded upon it.^ In Eng- land, no superior law of the realm exists to override an act of Parliament.^ What is called constitutional law there is declared by the Parliament itself. Still, — § 34. iTnconstitutional in Part. — A statute may be in conflict with the constitution in part, and the rest of it be free from objection. In which case, if the parts are properly separable, the courts will sustain what is sound, and reject the unsound. This may be so even where the sound and the unsound are in one section together.^ But if the unconstitutional parts are essential to Che constitutional, all must fail.^ And, beyond what thus comes from necessity, the doctrine has been laid down, and it seems to be just, that, if the parts are so mutually related as to make it evident the legislature intended them to constitute one whole, so that if all could not be carried into effect none would have received the legislative sanction, the case is within the same rule.^ On the other hand, absolute independence of the pro- visions is not a prerequisite to letting a part stand while the rest MV In By-laws. — As already seen,^ the like doctrine applies to 1 The State v. Weed, 1 Fost. N. H. 262 ; mington, 76 N. C. 133 ; Lea v. Bumm, 2 Eex V. Dyer, 6 Mod. 41. Norris, Pa. 237 ; The State v. Amery, 12 2 Astrom V. Hammond, 3 McLean, 107 ; R. 1.64; Lathrop v. Mills, 19 Cal. 513; Pisher v. McGirr, 1 Gray, 1. Maize v. The State, 4 Ind. 342 ; Santo v. 8 Dwar. Stat. 2d ed. 523. The State, 2 Iowa, 165 ; Mobile and Ohio * Bank of Hamilton v. Dudley, 2 Pet. Railroad v. The State, 29 Ala. 573. 492, 526 ; Clark v. Ellis, 2 Blackf. 8 ; « Exchange Bank v. Hines, 3 Ohio Pisher v. McGirr, 1 Gray, 1; Steele v. State, 1,34; Hinze «. People, 92 111. 406 ; The State, 5 Blackf. 110 ; McCuUoch «. People v. Cooper, 83 111. 585 ; Ex parte The State, 11 Ind. 424 ; The State v. Towles, 48 Texas, 413 ; People v. Maha- AUen, 2 McCord, 55 ; Yarmouth v. North ney, 13 Mich. 481 ; Campau v. Detroit, 14 Yarmouth, 34 Maine, 411 ; Myers v. Peo- Mich. 276 ; Eeed v. Omnibus Railroad, pie, 67 111. 503 ; Hagerstown v. Dechert, 33 Cal. 212 ; The State v. Perry, 5 Ohio 32 Md. 369 ; McCready v. Sexton, 29 State, 497, 506. Iowa, 356 ; Christy v. Sacramento, 39 ^ Neely v. The State, 4 Baxter, 174 ; Cal. 3; The State v. Clarke, 54 Misso. 17 ; The State v. Dousman, 28 Wis. 541 ; Eck- Eood V. McCargar, 49 Cal. 117 ; Bucky hart v. The State, 5 W. Ya. 515 ; Warren V. Willard, 16 Fla. 330 ; The State v. v. Charlestown, 2 Gray, 84 ; Common- Newton, 59 Ind. 173; In re Jilz, 3 Misso. wealth v. Clapp, 5 Gray, 97; Common- Ap. 243 ; The State v. Clinton, 28 La. wealth v. Hitchings, 5 Gray, 482 ; Com- An. 201 ; Berlin v. New Britain, 9 Conn, monwealth o. Pomeroy, 5 Gray, 486, 175; Robinson v. Bidwell, 22 Cal. 379, note. The State v. Swift, 11 Nev. 128 ; Gamble ' And see People v. Hill, 7 Cal. 97. V. McCrady, 75 N. C. 509 ; Darby v. Wil- s Ante, § 26. 31 § 85 THE ■WKITTBN LAWS. [BOOK I. municipal by-laws. " A by-law," said Lord Kenyon, C. J., " may be good in part and bad in part, yet it can be so only where the two parts are entire and distinct from each other." ^ Repeals in Statutes. — An act consisting of affirmative pro- visions and a repealing clause may be void as to the former and good as to the latter.^ Yet practically this would not be so com- monly ; because, " in most instances, the new provision is the motive for repealing the old, so that where the new cannot stand the repeal should not. It was in one case even held, that the clause, "All acts and parts of acts inconsistent with the pro- visions of this act are hereby repealed," was effectual, though the rest of the statute was unconstitutional.^ But nat only the rea- son just suggested shows that this doctrine cannot be sound in principle ; it is also unsound, and it has been so adjudged, be- cause, as observed in the Alabama court, " if the new law is void, the provisions of the former law cannot with propriety be said to be in conflict, or contravention of it." * II. The Interpreters of the Constitution. § 35. The Courts. — It is a popular idea, not altogether absent from judicial opinions, that the courts are both specially and exclusively the interpreters of our constitutions. But nothing of this sort appears in the instruments themselves. The judges are indeed sworn to observe them ; so equally are all the other officers of the government. Their function is to decide judicial causes ; and, when a cause is presented to them involving a con- stitutional question, they must interpret the constitution as to it, and no appeal lies to any other department of the government. Thus far, therefore, the courts are the interpreters ; nor can the legislature, for example, interfere in any way with this function.^ But — 1 Eex V. Faversham, 8 T. R. 352, 358. » Meshmeier v. The State, 11 Ind. 482. See also Commonwealth v. Dow, 10 Met. * Tims v. The State, 26 Ala. 165, 170; 382; Austin v. Murray, 16 Pick. 121, 126, People v. Tiphaine, 3 Parker C. C. 241 ; Fitzacherly v. Wiltshire, 11 Mod. 352, 354 ; The State v. La Crosse, 11 Wis. 50 ; Shep- 8. 0. nom, Fazakerly v. Wiltshire, 1 Stra. ardson v. Milwaukee, &c. Railroad, 6 Wis. 462, 469 ; Lee v. Wallis, 1 Keny. 292, 295 ; 605. And see The State v. Hallock, 14 Cincinnati v. Rice, 15 Ohio, 225 ; The State Nev. 202 ; Childs ti. Shower, 18 loy^a, 261. V. Snow, 8 R. 1. 64 ; The State i>. Copeland, 6 ^n,j gge Ex parte Blanchard, 9 Nev. 3 R. I. 33. 101 ; Barnett v. Woods, 5 Jones Eq. 428, " Ely V. Thompson, 3 A. K. Mar. 70. 484. 32 CHAP, v.] ENACTMENT AND VALIDITY. § 35 J Other Governmental Departments. — The other departments of the government, being bound equally with the judicial to obey the constitution, are under equal obligations to interpret it for themselves.^ Indeed there are doubtless circumstances in which the courts would feel obliged to place reliance upon, and give effect to, the interpretation made by another branch of the gov- ernment.* There are, moreover, many constitutional questions arising only in such forms that they can never be taken before the courts ; so that, if the other departments before which they present themselves could not interpret the constitution to decide them, this " supreme law " would be as to them of no practical effect. § 35 a. Further of Courts interpreting. — Except in the one in- stance about to be mentioned, courts will not take jurisdiction of a cause simply on the ground that it involves an interpretation of the constitution.^ Some, on the other hand, and perhaps in a degree all, avoid the consideration of constitutional questions except when forced on them in forms of procedure permitting of due argument and deliberation.* The interpretation of the high- est tribunal is binding on the inferior ones, the same as are its decisions on other questions of law." § 35 h. As between States and United States. — The COurtS of a State are the highest judicial interpreters of its constitution. And when a question of the meaning of a State constitution comes before the Supreme Court of the United States, it is bound 1 See this topic discussed, Bishop First But where no such wrong is done, it is Book, § 114-123. supposed that acts of the executire with- 2 We are perhaps wanting in author- in the general scope of its powers, and ity on this precise point ; but in United by virtue of law, cannot be reviewed ; States V. Lytle, 5 McLean, 9, 17, 18, the though, to some extent, the letter of the court refused to interfere with the Inter- law may not have been followed." Mc- pretation of a statute by the executive Lean, J. Of a like sort Is Mathews v. department ; observing, that the execu- Shores, 24 111. 27. And see post, § 104. tive is bound to give effect to laws regu- ^ Jones v. Black, 48 Ala. 540 ; Hoover lating its duties, in doing which it must v. Wood, 9 Ind. 286 ; Lopez v. The State, necessarily interpret them. "And, where 42 Texas, 298; Padelford v. Savannah, such construction has been acted on for 14 Ga. 438. a great number of years, under the sane- * Parker v. The State, 5 Texas Ap. tions of the lawmaking power, it becomes 579 ; Taylor v. Flint, 35 Ga. 124 ; Hoover a serious question how far the judicial v. Wood, supra ; People v. Mahaney, 13 power can or should Interfere. . . . Mich. 481 ; Shelden v. Miller, 9 La. An. Where, under an executive construction 187. of the law, a wrong is done to an indi- ^ Wheeler w. Rice, 4 Brews. 129; Pierce vidual, the courts will give him redress, v. Pierce, 46 Ind. 86. 3 38 § 36 THE WRITTEN LAWS. [BOOK I. by such State interpretation.^ In like manner, the interpretations of the courts of the United States are controlling over the State tribunals as to the Constitution of the United States.^ And an appeal, by writ of error, lies from a final judgment of a State court to the Supreme Court of the United States, in certain cases involving the construction of the national constitution.^ The State courts are bound by the constitution of the United States to the extent of permitting those of one State to pass upon the validity, under it, of the legislation of another State.* III. Constitutional Formalities at Enactment. § 36. In General. — A statute, to be valid, must be enacted by the body and in the manner prescribed by the constitution. Thus,— Legislative Body — People. — The people,^ having by the con- stitution transferred their law-making power to a legislative body, can no longer, without a recall of some portion of the power thus granted, exercise it directly. This proposition is universally conceded. But there are differences as to some of its applications. To explain, — statute to take Effect on Popular Approval — Municipal Corpora- tion. — Whether an individual entrusted with an authority can delegate it to another depends on its nature. An agency with a discretion cannot be delegated, but a mere ministerial one may.® Therefore, quite conclusively, a body of official persons, endowed with the discretionary power of making laws, cannot transfer it to other hands. But it is consistent with the nature of a law that it authorize associations of men to govern themselves in their own affairs ; therefore, as already seen,^ a statute may 1 Aicardi w. The State, 19 Wal. 635; nard w. Marshall, 8 Pick. 194. See Kean Cass V. Johnston, 95 U. S. 860 ; Bank v. Rice, 12 S. & R. 203. of North Bennington v. Bennington, 16 ^ Ante, § 33. Blatch. 53. 6 Bishop Con. § 350. As to powers 2 Bank of United States v. Norton, 3 A. more analogous to the law-making, see K. Mar. 423 ; Ex parte BushneU, 9 Ohio The State v. Bell, 34 Ohio State, 194 ; State, 77. Matthews v. Alexandria, 68 Misso. 115 ; 8 E. S. of U. S. § 709; Bridge Propri- The State v. Fiske, 9 R. I. 94; Springer etors V. Hoboken Co. 1 Wal. 116 ; The v. McSpadden, 49 Misso. 299. Binghampton Bridge, 3 Wal. 51 ; Winn ' Ante, § 18 ; Covington v. East St. V. Jackson, 12 Wheat. 135. Louis, 78 III. 548 ; Lothrop v. Stedman, 42 * StoddartJi. Smith, 6Binn. 856; Bray- Conn. 583. And see People v. Nally, 49 Cal. 478. 34 CHAP, v.] ENACTMENT AND VALIDITY. §36 establish a municipal corporation, with power to enact reasonable by-laws.^ And it was never doubted that such a statute may be submitted, for acceptance or rejection, to the people dwelling in the locality to be affected thereby. Yet considerable numbers of courts have held, that an ordinary act of legislation is void, if, by its terms, its going into effect depends on a popular vote.^ In- deed, a count would probably show a greater number of cases in favor of this doctrine than against it. We may doubt whether these cases have proceeded on a right vie,w of the question. It is beyond dispute, in general, that the going into effect of a legis- lative act may be made to depend on the happening of a future event,^ or a contingency ; and that, for example, one expired may be revived on the transpiring of a fact to be established by procla- mation.* The legislature, in exercising its judgment on the advisability of a measure, may well be governed by the yet unas- certained fact of the popular approval or disapproval of it ; be- cause, as is well known, laws which do violence to public opinion are not enforced, and often tend to evil, while, if such opinion 1 Taxes, &c. — And to levy taxes, and the like. United States v. New Orleans, 98 U. S. 381. 2 Barto».Hirarod,4Seld.48.3; Thome r. Cramer, 15 Barb. 112 ; The State v. Parker, 26 Vt. 357 ; People v. Collins, 3 Mich. 343 ; The State v. Copeland, 3 R. I. 33 ; Parker o. Commonwealth, 6 Barr, 507 ; The State v. Scott, 17 Misso. 521 ; The State v. Field, 17 Misso. 529 ; Louisville v. Baird, 16 B. Monr. 246 ; Pat- erson v. Society, 4 Zab. 385 ; Maize v. The State, 4 Ind. 342 ; Meshmeier v. The State, 11 Ind. 482 ; Santo v. The State, 2 Iowa, 165; The State v. Swisher, 17 Texas, 441 ; Grant u. Courter, 24 Barb. 232 ; Clarke v. Rochester, 24 Barb. 446 ; People V. Stout, 23 Barb. 349 ; Louisville and Nashville Railroad v. Davidson, 1 Sneed, 637; Morford v. Unger, 8 Iowa, 82; Geebrick v. The State, 5- Iowa, 491 ; Bank of Rome v. Rome, 18 N. Y. 38; Peck V. Weddell, 17 Ohio State, 271 ; Rice V. Foster, 4 Harring. Del. 479 ; Coming v. Greene, 23 Barb. 33 ; Johnson v. Rich. 9 Barb. 680 ; Morgan v. Monmouth Plank Road, 2 Dutcher, 99 ; People v. Salomon, 46 lU. 415 ; The State v. Weir, 33 Iowa, 134; Ex parte Wall, 48 Cal. 279, 313; Brown v. Fleischner, 4 Oregon, 132. 2 Lothrop V. Stedman, 42 Conn. 583; Smith V. Janesville, 26 Wis. 291 ; The State V. New Haven, &c. Co. 43 Conn. 351 ; Fredericton v. Reg. 3 Canada, S. C. 505. * The Aurora, 7 Cranch, 382. In a Texas case, Lipscomb, J. said: "There is no analogy between the act of our legislature, and the various acts of Con- gress depending upon a future contin- gency of a rebellion, insurrection, foreign war, a treaty, or the acts of a foreign power. These do not depend upon the vote of the constituency of Congress, but on a contingency over which they have no control." The State v. Swisher, 17 Texas, 441, 448. On the other hand, in Virginia, where the validity of statutes depending on a vote of the people was sustained, Lee, J. delivering the opinion of the court, said : " Now, if the legisla- ture may make the operation of its act depend on some contingency thereafter to happen, or may prescribe conditions, it must be for them to judge in what con- tingency, or upon what condition, the act shall take effect. They must have the power to prescribe any they may think proper." Bull v. Read, 13 Grat. 78, 90, 91. 35 § 36 a THE -WRITTEN LAWS. [BOOK I. favored them, their results might be good. Therefore to provide for ascertaining the popular opinion by a vote of the people, and to make the going into effect of a statute dependent on the fact thus arrived at, would seem but a legitimate form of contingent legislation, in the highest degree just in all cases where the legis- lative body doubts concerning such fact and deems it essential. This is not a transferring, by this body, of any part of the legis- lative power to the people, but intelligently exercising its own.^ How generally the full doctrine thus stated is, in recent times, held by the courts it would be difficult to ascertain ; but, where the submission is of a local statute to the people of the locality, or of a general one to be accepted or rejected in particular places where the vote is taken, popularly termed in some of its forms a local option law, the constitutional validity of the proceeding is almost universally conceded.^ By some opinions, at least, it makes no difference that the law affects equally the entire people of the State.^ In Rhode Island, where this sort of general legis- lation has been deemed unconstitutional, the courts sustained an act which provided for a popular vote on the question of its repeal, and, if a majority decide for repeal, it shall have no effect after the tenth day from and after the rising of the session of the General Assembly at which the votes are to be counted.* § 36 a. One Subject, expressed in Title. — The constitutions of some of the States provide, that no statute shall embrace more than one subject, and it shall be expressed in "the title.^ There are States wherein this provision is deemed directory only, so 1 Consult, for the aflSrmative side of wealth v. Hoke, 14 Bush, 668 ; Frederie- this proposition, Locke's Appeal, 22 Smith, ton v. Reg. 3 Canada S. C. 505. See Pa. 491 ; for the negative. Ex parte Wall, English v. The State, 7 Texas Ap. 171; 48 Cal. 279, 313. The State v. St. Joseph, 37 Misso. 270; ^ Locke's Appeal, supra ; Smith v. Holcomb v. Davis, 56 111. 413. Contra, McCarthy, 6 Smith, Pa. 359 ; The State Ex parte Wall, 48 Cal. 279, 313 (compare V. O'Neill, 24 Wis. 149 ; Monroe v. The with Robinson v. Bidwell, 22 Cal. 379) ; State, 8 Texas Ap. 343 ; Anderson v. Parker a. Commonwealth, 4 Pa. Law Commonwealth, 13 Bush, 485 ; The State Jour. Rep. 163 ; Lammert v. Lidwell, 62 V. Morris Common Pleas, 7 Vroom, 72 ; Misso. 188. People V. Reynolds, 5 Oilman, 1 ; People 3 Smith v. Janesville, 26 Wis. 291. V. Salomon, 51 111. 37 ; Erlinger v. Boneau, And see People c. Collins, 3 Mich. 343 ; 51 111. 94; Commonwealth v. Dean, 110 Blanding v. Burr, 13 Cal. 343. Mass. 357 ; Guild u. Chicago, 82 111. 472 ; * The State v. Copeland, 3 R. I. 33. The State v. Wilcox, 42 Conn. 364 ; The And see Williams v. Cammack, 27 Missis. State V. Cooke, 24 Minn. 247 ; Common- 209. wealth V. Weller, 14 Bush, 218 ; Common- ' Parkinson v. The State, 14 Md. 184. 36 CHAP. V.j ENACTMENT AND VALIDITY. §36 a that a statute enacted in violation of it is good.^ But generally it is regarded as mandatory, rendering the contravening enact- ment void.2 Still, by the common doctrine, as a statute may be good in part and ill for the residue,^ if the title specifies one sub- ject and no more, and the parts relating to it are separable from the rest, they will be held valid while the residue is adjudged void.* The title need indicate the subject only in a general way, without entering into details ; and aD auxiliary provisions prop- erly attaching to it, and constituting with it one whole, may be embraced within the enactment.^ 1 In re Boston Mining, &c. Co. 61 Cal. 624; The State v. Covington, 29 Ohio State, 102 ; Pirn v. Nicholson, 6 Ohio State, 176, 180 ; Washington v. Page, 4 Cal. 388 ; Cooley Const. Lim. 81, 82, 150. 2 Cannon v. Hemphill, 7 Texas, 184 ; Weaver v. Lapsley, 43 Ala. 224 ; The State V. Miller, 45 Misso. 495 ; Cannon v. Mathes, 8 Heisk. 504 ; San Antonio v. Gould, 34 Texas, 49; GifEord v. New Jer- sey Railroad, 2 Stockton, 171 ; Parkinson V. The State, supra ; Hill v. Decatur, 22 Ga. 203 ; Phillips v. New York, 1 Hilton, 483 ; Madison, &c. Railroad v. Whiteneck, 8 Ind. 217 ; Bright v. McCuUough, 27 Ind. 223 : Keller v. The State, 11 Md. 525; Cooley Const. Lim. 141 et seq. a Ante, § 34. * Jones V. Thompson, 12 Bush, 894; Allegheny County Home's Case, 27 Smith, Pa. 77 ; Walker v. The State, 49 Ala. 329 ; People v. Briggs, 50 N. Y. 553 ; Ex parte Moore, 62 Ala. 471 ; In re Sackett, &e. Streets, 74 N. Y. 95 ; Fuqua v. Mullen, 13 Bush; 467 ; Rader v. Union, 10 Vroom, 509. And see Shields u. Bennett, 8 W. Va. 74. 6 Alabama. — Miles v. The State, 40 Ala. 39 ; Weaver v. Lapsley, 43 Ala. 224; Walker v. The State, 49 Ala. 329; Lowndes o. Hunter, 49 Ala. 507; Tal- la^see Manuf . Co. v. Glenn, 50 Ala. 489 ; The State v. Price, 60 Ala. 568 ; Moses V. Mobile, 62 Ala. 198 ; Key v. Jones, 52 Ala. 238 ; Boyd v. The State, 63 Ala. 601 ; Adler v. The State, 65 Ala. 16 ; Watson ». The State, 55 Ala. 158. Arkansas. — Fletcher v. Oliver, 25 Ark. 289; Worthen v. Badgett, 32 Ark. 496. Georgia. — Bibb County Loan Assoc. V. Richards, 21 Ga. 592 ; AUen v. Tison, 50 Ga. 374 ; Ex parte Conner, 51 Ga. 571 ; Ayeridge v. Social Circle, 60 Ga. 404. Illinois. — Nelfing a. Pontiac, 56 111. 172 ; People v. Wallace, 70 111. 680 ; Burke V. Monroe, 77 111. 610 ; Guild v. Chicago, 82 m. 472 ; Fuller v. People, 92 111. 182. Indiana. — Hatwood «. The State, 18 Ind. 492 ; Gabbert v. Jeffersonville Rail- road, 11 Ind. 365; Igoe v. The State, 14 Ind. 239; The State v. Adamson, 14 Ind. 296; Thomasson v. The State, 15 Ind. 449 ; The State v. Young, 47 Ind. 160, 154; Williams v. The State, 48 Ind. 306; Henderson v. The State, 50 Ind. 234. Iowa. — Williamson v. Keokuk, 44 Iowa, 88 ; Farmers' Ins. Co. v. Highsmith, 44 Iowa, 330. Kansas. — Division of Howard, 15 Kan. 194; The State v. Bankers, &c. Ben- efit Assoc. 23 Kan. 499. Kentucky. — Gibson v. Belcher, 1 Bush, 145 ; Hind v. Rice, 10 Bush, 628 ; Collins V. Henderson, 11 Bush, 74 ; Fuqua v. Mullen, 13 Bush, 467 ; Rowland Coal, &c. Works V. Brown, 13 Bush, 681 ; Allen v. Hall, 14 Bush, 85. Louisiana. — City Nat. Bank v. Mahan, 21 La. An. 751 ; The State v. Daniel, 28 La. An. 38 ; Police Jury of Plaquemines V. Packard, 28 La. An. 199 ; New Orleans V. Dunbar, 28 La. An. 722 ; The State v. Garrett, 29 La. An. 637. Maryland. — Washington v. Franklin Railroad, 34 Md. 159 ; McGrath v. The State, 46 Md. 631. Michigan. — People v. Wands, 23 Mich. 385; People v. Hurlbut, 24 Mich. 44, 65, 57; People v. Bradley, 36 Mich. 447; People V. Young Men's, &c. Soc. 41 Mich. 67. :. — Stuart v. Kinsella, 14 37 §37 THE "WEITTEN LAWS. [book I. § 36 h. other like Provisions. — There are Other like provisions in the constitutions of some of the States, but discussions of them are not desirable here.'' § 37. Judicial Knowledge and Proof. — The public Statutes are parts of the law of the land, whereof the courts take judicial notice ; and, to some extent, by-laws and classes of statutes not public are made such by legislative mandate.^ Private statutes Minn. 524; The State v. Cassidy, 22 Minn. 312, 323. Missouri. — The State v. Miller, 45 Misso. 495; The State v. Bank of the State, 46 Misso. 528 ; In re Goode, 3 Misso. Ap. 226; Murdock . New Orleans, &c. Railroad, 55 re Wakker, Edra. Sel. Gas. 575 ; Raw- Ala. 413. See Clark v. Janesville, 10 lings V. The State, 2 Md. 201 ; Kerrigan Wis. 136; The State v. Camden Common V. Force, 9 Hun, 185; The State v. Pleas, 12 Vroom, 495. 44 CHAP. VII.] THE PARTS OP A STATUTE. § 44 CHAPTER VII. THE SEVEEAL PAETS OF A STATUTE CONSIDERED. § 43. Introduction. 44-47. The Title. 48-51. The Preamble. 52-61. Purview and its Subdivisions. 62-65. Precedence of Provisions. 66, 67. Division into Sections. § 43. How Chapter divided. — We shall consider, I. The Title ; II. The Preamble ; III. The Purview and its Subdivisions ; IV. The Precedence of Provisions ; V. The Division of a Stat- ute into Sections. I. The Title. § 44. Different Sources of Title and Manner of making it. — The effect of the title, on the construction of a statute, must, in rea- son, be greater or less according to the manner of making it, by whom made, and its connection with the bill during its passage through the legislative body. In England, the ancient methods of enacting laws were not uniform, and they seem to have varied with the different dates, nor were they at any time the same as now.i " Formerly," it is said in Bacon's Abridgment, describing one of the old methods, " the bill was in the nature of a petition " from the Commons to the King. " These petitions were entered upon the Lords' Rolls, and upon these rolls the royal assent was likewise entered. And upon this, as a groundwork, the judges used, at the end of the Parliament, to draw up the act of Parlia- ment into the form of a statute, which was afterwards entered upon the rolls called the Statute Rolls, which was different from those called the Lords' Rolls, or the Rolls of Parliament. Upon which Statute Rolls, neither the bill, nor petition from the Commons, nor the answer of the Lords, nor the royal assent, was entered, but only the statute, as it was drawn up and penned by 1 See Pref . to EufEhead's Statutes. 45 t § 46 THE "WRITTEN LAWS. [BOOK I. the judges." ^ If the act, as it appeared on the Statute Rolls, had a title, it was the work of the judges, not of Parliament.^ When afterward the statutes came to be drawn up in due form before being enacted, which was perhaps during the reign of Hen. VII.,^ the title, though one was prefixed, did not " pass the same form as the rest of the act ; only the speaker, after the act is passed, mentions the title, and puts the- question upon it." Then it is changed if the members choose.* With us, the title appears in the bill, subject to the same formalities as any other part of it, during its entire progress through the legislative body. Probably no serious consequences come from this difference, but it is properly to be borne in mind. § 45. No Part of Act. — Equally in ancient and modern times, in England and in this country, the title is regarded as not a part of the act, being likened to the title of a book, which is not a part of the book ; ^ occupying, indeed, a position not unlike that of the caption of an indictment, explained in another con- nection.s Still, — § 46. Weight to be given Title. — In construing a statute, we do not look upon the title as in all circumstances a mere nullity. Perhaps, in England, where it "is usually framed only by the clerk of that house in which the bill first passes, and is seldom read more than once," ^ and the other J)eculiarities above de- scribed exist, it should have less weight in questions of construc- tion than in this country. The doctrine seems indeed to have been there held, that it cannqt be taken at all into the consid- eration.^ Yet by the better, opinion there, certainly here, it may be referred to in a doubtful case in aid of the inquiry into the legislative intent ; ^ and, since such intent may sometimes be ' Bac. Abr. Court of Pari. E. kins, 6 Mod. 62 ; ' Chance v. Adams, 1 Ld. 2 Attorney-General . v. Weymouth, Raym. 77 ; Rex v. Williams, 1 W. Bl. 93, Amb. 20, 23; Dwar. Stat. 2d ed. 500. 95; Bradford v. Jones, 1 Md. 351; Ogden * The date is stated by Dwarris, as v. Strong, 2 Paine, 584 ; The State v. above, to be about the eleventh year of Welsh, 3 Hawks, 404 ; Cohen v. Barrett, Henry "VII. But it seems, that the new 5 Cal. 195 ; Pluramer u. People, 74 111. practice came gradually into use, begin- 361 ; Commonwealth v. Slifer, 3 Smith, ning at a still earlier period. And see Pa. 71. 16 Howell St. Tr. 743, note ; 1 Bl. Com. » Crim. Proced. I. § 653 et seq. 183. 7 Dwar. Stat. 2d ed. 501. < Attorney-General v. Weymouth, su- s Attorney-General v. Weymouth, pra, at p. 23 ; Dwar. Stat. 2d ed. 322, Amb. 20, 22. 328, » Rex v. Cartwright, 4 T. R. 490; 6 Bac. Abr. Statute, A; Mills v. Wil-, Stradling v. Morgan, 1 Plow. 199, 203; 46 CHAP. VXI.J THE PARTS OF A STATUTE. § 48 controlling in the interpretation, the title may thus restrict the purview.^ But the cases in which it so operates are exceptional ; for commonly it will not extend or restrain any provision in the body of an act.^ Further than as manifesting the legislative intent, it can have no force ; therefore ordinarily, if the words of the enacting clause are larger in meaning than those of the title, they will prevail, even in a penal statute.^ Where there is no ambiguity in the statute itself, the title is not to be regarded.* Chapter Headings, &c — The chapter headings and the like, in the revisions of statutes and in codes, are deemed to be of some- what greater effect than the ordinary titles to legislative acts.^ § 47. Constitutional Effect! — We have already seen, that, in some of the States, a special effect is given to the title under a constitutional provision.^ II. The Preamble. § 48. Compared with Title. — The preamble is similar to the title in its effect on the interpretation, yet of influence some- what greater. Thus, — No Part of Statute. — Though enacted with the statute, as the title is in our American legislation, like the latter it is deemed not to constitute of it a part.'^ Still, — Rex V. Gwenop, 3 T. R. 133, 137 ; Dwar. 2 Hadden v. The Collector, 5 Wal. 107; Stat. 2d ed. 501, 502 ; The State v. Ste- People v. Abbott, 16 Cal. 358. phenson, 2 Bailey, 334 ; Burgett v. Bur- ' ^ United States v. Briggs, 9 How. U. S. gett, 1 Ohio, 469 ; Chesapeake and Ohio 351 ; Bartlett v. Morris, 9 Port. 266; Blue Canal v. Baltimore and Ohio Railroad, 4 v. McDuffie, Busbee, 131. Gill & J. 1, 90, 91 ; United States v. * Eastman v. McAlpin, 1 Kelly, 157 Fisher, 2 Cranch, 358, 386 ; The State In re Boston Mining, &c. Co. 51 Cal. 624 V. Fields, 2 Bailey, 554; The State v. Commonwealth k. Slifer, 3 Smith, Pa. 71 Smith, Cheves, 157 ; Bradford v. Jones, United States v. McArdle, 2 Saw. .367. 1 Md. 351 ; Ogden v. Strong, 2 Paine, ^ Barnes v. Jones, 51 Cal. 308 ; People 584; Cohen U.Barrett, 5 Cal. 195; Gar- v. Molyneux, 40 N. Y. 113; HufC v. rigus V. Parke, 39 Ind. 66 ; Connecticut AIsup, 64 Misso. 51 ; Griffith v. Carter, 8 Mutual Life Ins. Co. v. Albert, 39 Misso. Kan. 565 ; Battle v. Shivers, 39 Ga. 405 ; 181 ; Nazro v. Merchants' Mutual Ins. The State v. Popp, 45 Md. 432; United Co. 14 Wis. 295; United States ». Union States v. Fehrenback, 2 Woods, 175; Pacific Railroad, 91 U. S. 72, 82. Nicholson v. Mobile, &c. Railroad, 49 Ala. 1 United States v. Palmer, 3 Wheat. 205. And see post, § 61. 610, 631 ; The State v. Stephenson, 2 « Ante, § 36 a. Bailey, 334 ; Field v. Gooding, 106 Mass. ' Mills v. Wilklns, 6 Mod. 62 ; Bac. 310. Abr. Statute, A. 47 § 49 THE WRITTEN LAWS. [BOOK I. Weight. — As showing the inducements to the act, it may have a decisive weight in a doubtful case.' But where the body of the statute is distinct, it will prevail over a more restricted pre- amble.2 More particularly, — § 49. Intent and Reasons. — We look to this introductory mat- ter for the general intent of the legislature, — the reasons and principles on which the law proceeds.^ So that, to the extent to which these can influence the interpretation, the preamble be- comes important. Hence, — Not control, but explain. — It may, for example, explain an equivocal expression in the enacting clause.* It will seldom, at least, extend this clause;^ in a doubtful case it may restrain it,^ — propositions not in their nature absolute.''^ In the words of Ellenborough, C. J. : " In a vast number of acts of Parliament, although a particular mischief is recited in the preamble, yet the legislative provisions extend far beyond the mischief recited. And whether the words shall be restrained or not must depend on a fair exposition of the particular statute in each particular case, and not upon any universal rule of construction." ' And, on the other hand, if the preamble should be found broader than the act itself, while of its own force it would not enlarge the meaning, it may do in this direction whatever can be accomplished 1 Mills V. Wilkins, supra ; Mason v. 372. And see, as to both title and pre- Armitage, 13 Ves. 25, 36 ; Crespigny v. amble, 1 Kent Com. 460 ; Salkeld v. Wittenoora, 4 T. K. 790, 793 ; Gray v. Johnston, 1 Hare, 196, 207 ; Rex v. Sut- Soanes, 2 Jur. 1040 ; The Salters' Com- ton, 4 M. & S. 532 ; Hahon v. Cove, 1 B. pany v. Jay, 3 Q. B. 109 ; Fellowes o. & Ad. 538, 558. Clay, 4 Q. B. 313, 339. * Clark v. Bynum, 3 McCord, 298 ; 2 Pattison a. Bankes, Cowp. 540, 543; WoodrufE w. Gilchrist, 15 Johns. 89 ; Nash Lees d. Summersgill, 17 Ves. 508 ; Mace v. AUen, 4 Q. B. 784. V. Cammel, Lofft, 782 ; The State v. But- « lb. ; Dwar. Stat. 2d ed. 660, referring ler, 3 McCord, 383 ; Rex v. Marks, 3 to Wilson v. Knubley, 7 East, 128. East, 157 ; Rex v. Athos, 8 Mod. 136, " Dwar. Stat. 2d ed. 661 ; Ryall v. 144; Holbrook u. Holbrook, 1 Pick. 248, RoUe, 1 Atk. 165, 174, 182. Contra, 251; Laidler v. Young, 2 Har. & J. 69; Copeman v. Gallant, 1 P. Wms. 314, 320; The State v. Findley, 1 Brev. 107 ; Blue Hughes v. Chester, &c. Railway, 1 Drew. V. McDuffie, Busbee, 131 ; United States & S. 524. V. Briggs, 9 How. U. S. 351 ; Sussex Peer- ' Kearns v. Cordwainers, 6 C. B. N. s. age Case, 11 CI. & F. 86, 143 ; Caledonian 388 ; Pattison v. Bankes, Cowp. 540, 643 ; Railway v. North British Railway, 6 Ap. Wilmot v. Rose, 3 Ellis & B. 563; Mason Cas. 114, 122, 124. v. Armitage, 18 Ves. 26, 36. » United States v. Webster, Daveis, ' In Rex v. Pierce, 3 M. & S. 62, 66. D. C. 38 ; Fowler v. The State, 6 Day, And see Trueman w. Lambert, 4 M. & S. 81 ; Gray v. Soanes, 2 Jur. 1040 ; Pray v. 234, 239. Edie, 1 T. R. 313 ; Rex v. Corry, 6 East, 48 CHAP. VII.] THE PARTS OF A STATUTE. § 51 by a consideration of the reasons which impelled the legislative mind.^ § 50. RecitationB of Facts. — Commonly a preamble contains recitations of facts. In the interpretation of statutes, as of con- tracts,^ the surroundings are taken into the account. And the recitations in the preamble must be accepted as, at least, prima facie, and perhaps conclusively, correct.^ In a private act, they are evidence only as between the State and the private party.* When viewed as a key to the interpretation, they should in rea- son be deemed conclusive of the recited facts ; because, whether really true or not, they explain the legislative perspective in enacting the statute, and only this is in any case gained by the interpreter in looking at the surroundings. Therefore, also, such matter is to have no other weight than is given it in other cases of construction, when it comes to the knowledge of the judge through other means. §51. In General. — Dwarris^ observes: "Lord Coke consid- ered the rehearsal, or preamble, a key to open the understanding of the statute ; and it is properly considered ^ a good mean for collecting the intent, and showing the mischiefs which the makers of the act intended to remedy. The civilians say Cessante legis prooemio, cessat et ipsa lex ; but English lawyers are aware how seldom the key will unlock the casket ; how rarely the preamble is found to state, besides the primary occasion of the law, the full views of the proposer of it. A particular mischief is often alluded to ; but that is soon lost sight of (cessat procemium'), wider objects are embraced, and a general remedy is provided. ' It is nothing unusual in acts of Parliament,' says Lawrence, J., « for the enacting part to go beyond the preamble ; the remedy often extends beyond the particular act or mischief which first suggested the necessity of the law.' ^ ' It certainly does appear, 1 And see Bywater v. Brandling, 7 B. Iiegislature. — As to resolutions of the & C. 643. legislature, see Commissioners v. The 2 Bishop Con. § 576. State, 9 Gill, 379. 8 Sedgw. Stat. Law, 66; Rex v. Sut- * The State v. Beard, Smith, Ind. 276, ton, 4 M. & S. 532 ; Elmondorfl v. Car- 1 Ind. 460 ; Branson v. Wirth, supra, michael, 3 Litt. 472 ; McReynolds v. See Edinburgh, &c. Railway v. Linlith- Smallhouse, 8 Bush, 447, 456 ; Allison v. gow, 3 Macq. H. L. Cas. 691, 704. Louisville, &c. Railroad, 10 Bush, 1 ; Bran- ^ D^ar. Stat. 2d ed. 504. son V. Wirth, 17 Wal. 32, 44. See Reg. v. « 4 Inst. 330. Haughton, 1 Ellis & B. 501 ; United States ' Bex v. Marks, 3 East, 157, 165. V. Claflin, 97 U. S. 546. Resolutions of 4 49 § 53 THE WRITTEN LAWS. [BOOK I. from the preamble of the act,' said Lord EUenborough, in the same case, ' as if it were mainly directed against combinations for purposes of mutiny and sedition ; but there are words suffi- cient in the enacting part to satisfy the preamble, and, after deal- ing with offences of that description, the act goes on in more extensive terms, and embraces other more general objects ; and, as there is no word of reference in the latter part (as such'), I see no reason for restraining the common import of the words used.' ' Sometimes' — it is well expressed in another report^ — ' the legislature having a particular mischief in view, which was the primary object of the statute, merely state that in the pre- amble, and then go on in the body of the act to provide a remedy for general mischiefs of the same nature, but of different species, neither expressed in the preamble, nor perhaps then in imme- diate contemplation.' " III. The Purview and its Subdivisions. § 52. Elsewhere. — Something of the subject of this sub-title appears in " Criminal Procedure," where the indictment on stat- utes is explained.^ Yet we shall substantially avoid repetition. Purview defined. — The purview is " that part of an act of the legislature which begins with the words ' Be it enacted,' &c. and ends with the repealing clause." ® Such is the full meaning ; but the term is sometimes employed in a narrower sense,* as exclud- ing provisos, exceptions, and the like. Thus Dwarris says: "The parts of statutes are — in a popular, though not legal, sense — the title, the preamble, the purview or body of the act, clauses, provisos, exceptions."* The Parts — are chiefly designated as follows : — § 53. Clause. — This is a word depending largely for its mean- ing on the connection in which it is employed.^ It signifies less than " purview," yet not necessarily less than a sentence viewed grammatically. As, in grammar, the word " clause " denotes a part of a sentence, and qualifiying words are required to show the particular part, and how much ; so, in legal language, it is 1 Mace V. Caramel, Lofft, 783. And * Crim. Prooed. I. § 634. see Fellowes v. Clay, 4 Q. B. 313, 339. 5 Dwar. Stat. 2d ed. 500. 2 Crim. Proced. I. § 634 et seq. » Crim. Proced. I. § 634. ' Bouv. Law Diet. tit. Purview, refer- ring to Cooke, Tenn. 330; 8 Bibb, 181. 50 CHAP. Vn.] THE PAKTS OF A STATUTE. § 55 believed to indicate a part of a statutory provision, the particular part, and how much, to appear from the context. And, though the term " clause " almost always contemplates some portion of the purview, no reason appears why it may not refer also to a member of the preamble. § 54. Interpretation Clause. — Not all statutes have an inter- pretation clause. But of late such a clause has become common, especially in England. Ordinarily it occupies one section, some- times more ; in some it is placed at the beginning, in others at the end. Its efPect may be to require a different interpretation from what otherwise would be given the statute,^ or even to im- part a novel signification to particular words ; ^ and whatever in this respect it provides, the courts, as a general proposition, to which there are possibly exceptions, are bound to accept. § 55. Interpreting this Clause. — This clause is not always meant to render the meaning plainer. If commonly it is, it often fails in its object ; for, first, it must itself be interpreted ; and, sec- ondly, the difficulty of interpreting the main provisions may be greater with the rule it furnishes than without.^ In general, this sort of clause, like other provisions in derogation of the common law,^ is to be construed strictly ; ^ though, on the other hand, it is said not always to be so.^ Thus, — Gaming — (Lottery Tickets). — While the general doctrine re- quires criminal statutes to be subjected to a strict interpretation, it is provided in Tennessee,^ Mississippi,^ Virginia,® and probably in some other States, that those against gaming be remedially construed. But the acts which have thus changed the rule for this class of offences appear themselves to be taken strictly ; for they are not applied to subsequent statutes making designated kinds of gaming felony, all others having before been misde- meanor," nor are they extended to statutes for the suppression of the sale of lottery tickets.^^ k 1 Smith V. The State, 28 Ind. 321 ; ' McGowan v. The State, 9 Yerg. 184, People V. Soto, 49 Cal. 67. 197 ; Hewlett t>.The State, 5 Yerg. 144,152. 2 Grim. Prooed. I. § 358. 8 Cain v. The State, 13 Sm. & M. 456 ; 3 And see Dwar. Stat. 2d ed. 509 ; Seal v. The State, 13 Sm. & M. 286. Denman, C. J. in Reg. «. Cambridgeshire, ' Commonwealth v. Chubb, 5 Rand. 7 A. & E. 480 ; Meux v. Jacobs, Law Rep. 715. 7 H. L. 481. 1" McGowan v. The State, 9 Yerg. 184. * Post, § 119. " Commonwealth v. Chubb, 5 Rand. 6 Sedgw. Stat. Law, 59. 715, 722. See Cain v. The State, supra; 8 Dwar. Stat. 2d ed. 509. Seal v. The State, supra. 51 § 59 THE WRITTEN LAWS. [BOOK I. § 56. Enacting Clause. — The words " enacting clause '' are not often employed in discussions on the interpretation of statutes. In those relating to the indictment or declaration they are com- mon, and in this view they are considered by the author in another connection.^ Most frequently they refer to the main body of a statute or some leading provision, excluding its pro- visos ; they may or not include an exception.^ § 57. Proviso. — "A proviso '^ is something engrafted upon a preceding enactment," * generally ^ introduced by the word " pro- vided." It is commonly, in the absence of any contrary indication, construed to affect merely the one paragraph to which it is attached.^ How it is regarded in pleading we saw in another connection.'^ § 58. Exception. — An exception is a clause similar to a pro- viso, and of a like effect on the pleadings,® ordinarily introduced by the word " except." It " can only operate where, but for the exception, that which is excepted would have been included in the prior enactment." ^ § 59. Saving Clause. — "A saving in a statute is only an exemption of a special thing out of the general things men- tioned." 1° There is no particular rule for its location, or its verbal form ; but it is generally near or at the end, commencing, " Nothing in this act shall," &c. Nice questions of interpretation sometimes grow out of this clause,^^ but in pleading it is seldom or never regarded. 1 Crim. Proced. I. § 634, 635, and in see Farmers' Bank v. Hale, 59 N. T. 53; subsequent sections. Bank for Savings v. The Collector, 3 Wal. 2 If we should seek an exact defini- 495 ; Roberts v. Tarboro, 41 Texas, 449 ; tion, it would be by following the Ian- Lastro v. The State, 3 Texas Ap. 363 ; guage of learned courts in treating of Waters v. Campbell, 4 Saw. 121. indictments and declarations on statutes. ' Crim. Proced. I. § 635, 637-639. A good illustration would be the opinion ^ Crim. Proced. I. § 635-639 ; Blasdell in Blasdell v. The State, 5 Texas Ap. v. The State, 5 Texas Ap. 263 ; Wood- 263. An abundance of this sort of matter ward v. The State, 5 Texas Ap. 296 ; is referred to in Crim. Proced. as above. Smith v. The State, 5 Texas Ap. 318. s Dwar. Stat. 2d ed. 514. » Dwar. Stat. 2d ed. 516, referring to « Gregory's Case, 6 Co. 19 6 ; Poster's Zouch b. Moor, 2 Eol. 274, 280 ; 14 Vin. Case, 11 Co. 56 6; Rex v. Taunton Saint Abr. Grants, H. 13, pi. 61. Denied by James, 9 B. & C. 831, 836. Campbell, A. G. arguendo, 8 B. & A. 6 Carroll v. The State, 58 Ala. 396. 641. 6 Spring V. Olney, 78 111. 101 ; Pearce w Dwar. Stat. 2d ed. 513, referring to V. Bank of Mobile, 33 Ala. 693 ; Ex parte HallisweU v. Bridgewater, 2 Anderson, Partington, 6 Q. B. 649, 658 ; Rex v. 190, 192. Newark-upon-Trent, 3 B. & C. 59, 71 ; " See People v. Gill, 7 Cal. 356 ; Coch- Gushing v. Worrick, 9 Gray, 382. Other ran v. Taylor, 13 Ohio State, 382; Downs Questions. — Further as to the proviso, v. Huntington, 35 Conn. 588. 62 CHAP. Vn.] THE PARTS OP A STATUTE. § 63 § 60. Other Clauses — There are occasionally other clauses, not necessary to be dwelt upon in this connection ; as, " an appeal clause, a clause showing to what places the operation of the act shall extend, a clause showing from what date the opera- tion of the act is to commence and how long it shall continue in force." ^ § 61. Marginal Notes. — The marginal notes to the sections, when abstracts of their contents, introduced to facilitate refer- ence, are, in principle, and reasonably also in authority, of no weight in the interpretation if the mere work of an editor.^ But where they are parts of the authentic record of the statute, and especially where they were in any way attached to the bill dui-ing its passage through the legislative body, they may be regarded similarly to the title.^ And, beyond this, what is in form a marginal note may be a part of the statute itself.* IV. The Precedence of Provisions. § 62. Construed together. — In another connection we shall see, that, though there are on a subject various statutes passed at dif- ferent dates, all should be construed together as parts of one whole. ^ Afortiorii therefore, should all the clauses and sections of each separate statute. And, — Purview to prevail. — We have already seen, that, in a case of conflict between the purview and the title or preamble, the for- mer is to prevail.® But how is it where the parts of the purview cannot be reconciled ? § 63. Conflicts in Purview, on Principle. — When all the stat- utes of a given Parliament appeared in the rolls without dates, and all were referred to the day of its original assembling,^ the fact was still known that they were enacted at different times. And the presumption was, and it was reasonable, that each suc- cessive clause came subsequently to the one next preceding it ; so that, in a case of irreconcilable conflict, the later took prece- dence of the earlier. With us, and in England in modern times, 1 Dwar. Stat. 2d ed. 511. ' In re Venour's Settled Estates, 2 Ch. 2 Claydou v. Green, Law Rep. 3 C. P. D. 522, 525. 511, 521, 522. See Attorney-General v. * Rex v. Milverton, 5 A. & E. 841, 854. Great Eastern Railway, 11 Ch. D. 449, b So^.i, § 82, 86 et seq. 465 ; Birtwhistle v. Vardill, 7 CI. & E. 6 Ante, § 46, 48, 49. 895, 920. ' Ante, § 44. And see ante, § 28. 53 § 65 THE WRITTEN LAWS. [BOOK I. the several parts of each particular statute are enacted simulta- neously, and they appear so by the legislative records. So, in reason, there is no room for the former presumption ; and the rule now ought to be, that the location of a clause in the purview- is immaterial ; and, if two clauses are irreconcilably repugnant, this may vitiate the whole, or the part to which the clauses relate,^ or the one or the other may be made to give way, accord- ing to the nature of the ease ; the particular locality of the clauses not being an element in the account. Let us, however, look a little at what has been laid down. § 64. Parts controlling One Another. — It is common doctrine, never questioned, that, for the purpose of interpretation, all the parts of a statute are to be looked at together, and one part may control another. If possible, they are to be reconciled.^ Thus, — General and Particular. — Where there are words expressive of a general intention, and then of a particular intention incom- patible with it, the particular must be taken as an exception to the general, and so all the parts of the act will stand.^ And, as a broad proposition, general words in one clause may be re- strained by the particular words in a subsequent clause of the same statute.* This doctrine applies even to statutes enacted at different dates, and it will be more fully illustrated in other connections.^ Again, — In Harmony with other Laws. — If still conflicting clauses are reconcilable, the one will be preferred which best harmonizes with the other laws and with the justice of the case.^ § 65. Irreconcilable. — There are assumed to be cases which will baffle all attempts at reconciling the repugnant parts. For such the doctrine is laid down, that what is last in the order of the words shall nullify the irreconcilable matter before.'^ Further as to which, — Proviso and Saving Clause. — A proviso directly contrary to the 1 Ante, § 41. 6 gge post, § 112 a, 112 6, 126, 131, 152, 2 Ebbs V. Boulnois, Law Rep. 10 Ch. 156. Ap. 479, 484; Gye v. Felton, 4 Taunt. ' Kansas Pacific Railway u. Wyan- 876 ; Scott v. The State, 22 Ark. 369. dotte, 16 Kan. 587. 3 Stockett u. Bird, 18 Md. 484; ' Packer v. Sunbury and Erie Eail- Clmrchill v. Crease, 5 Bing. 177, 180. road, 7 Harris, Pa. 211, 219 ; Ryan v. 4 Covington v. McNickle, 18 B. Monr. The State, 5 Neb. 276; Gibbons v. Brit-. 262 ; Long v. Culp, 14 Kan. 412. tenum, 66 Missis. 232. 64 CHAP. VII.] THE PAETS OP A STATUTE. § 66 purview has, on this distinction, been permitted to stand to the overturning of the purview ; " because it speaks the later inten- tion of the legislature." ^ We have seen^ that this reason, how- ever good at one time in England, is not so now ; consequently the result derived from it is not good. Generally a saving clause is located after the main purview,^ so in this sense is the last expression of the legislative wUl, but it has been adjudged to give way to the purview in a case of irreconcilable conflict.* Kent points out that the distinction between the saving clause and the proviso has no just foundation, and observes : " The true principle undoubtedly is, that the sound interpretation and mean- ing of the statute, on a view of the enacting clause, saving clause, and proviso, taken and construed together, are to prevail."^ Now, following these views, and considering the particular natures of saving clauses and provisos, we shall practically find that, since a saving clause "is only an exemption of a special thing out of the general things mentioned " in the purview,^ if it stands, and the purview is rejected, the whole statute is destroyed, not even the saving clause itself being of any effect. Hence necessa- rily it must yield to the purview. But a proviso is somewhat different ; ' and, under various circumstances, it may prevail over the purview without working the destruction of the entire enact- ment. When this is so, the question of precedence cannot be one of rule, but it must depend on considerations special to the individual case. V. The Division of a Statute into Sections. § 66. Origin of Sections. — There are no sections in the par- liamentary rolls either of the ancient or of the comparatively modern English enactments.^ But it is provided by 13 & 14 Vict. c. 21, § 2, "that all acts shall be divided into sections," &c. Before this, the English sectioning seems to have been sim- ply the work of editors. Generally with us, bills of sufficient 1 Townsend v. Brown, 4 Zab. 80, 86 ; Wood's Case, 1 Co. 40 a, 47 a. See Yar- Attomey-Generalu.Chelesa Water-works, mouth v. Simmons, 10 Ch. D. 518. Fitzg. 195 ; Farmers' Bank v. Hale, 59 ^ 1 Kent Com. 463 and note. N. Y. 53. 6 Ante, § 59. 2 Ante, § 63. ' Ante, § 57. « Ante, § 59. « Wells v. Iggulden, 3 B. & C. 186, « Washlngham's Case, 2 Plow. 565 ; 189 ; Eex v. Threlkeld, 4 B. & Ad. 229, 235, 236. 55 § 67 THE -WBITTEN LAWS. [BOOK I. length have been drawn in sections, and in this form enacted. StiU,— § 67. Effect. — While plainly, where the division is only made by an editor, it can have no effect on the interpretation,^ it is believed not to be greatly different where it is the work of the draughtsman, and is retained in the statute as passed. In other connections^ and from various cases ^ we see, that, while our courts sometimes speak of the sections as though the distinction had something to do with the interpretation, at other times noth- ing is perceptible from which such inference could be drawn. On the whole, little depends on this matter, beyond mere con- venience of citation. > Eex V. Threlteld, 4 B. & Ad. 229, Thompson v. Bulson, 78 Bl. 277 ; The 235, 236; Rex v. Newark-upon-Trent, 3 State v. Williams, 8 Texas, 255, Gibbons B. & C. 59, 63. „. Brittenum, 56 Missis. 232 ; The State 2 Post, § 261 ; Crim. Proced. I. § 639 v. Walters, 64 Ind. 226 ; Fowler v. Pirkins, and note. 77 111. 271. i* As, see Long v. Gulp, 14 Kan. 412 ; 66 CHAP. Vin.J PURPOSE AND MEANS. § 70 BOOK II. THE INTERPRETATION OF WRITTEN LAWS ABSOLUTE AND WITH THE UNWRITTEN. CHAPTER VIII. THE PTJKPOSB AND MEANS OF INTEEPEETATION. § 68, 69. Introduction. 70-73. What Interpretation seeks. 74-77. Into what Interpreter looks. § 68. Scope of this Series of Chapters. — In the chapters consti- tuting the present Book, we shall call to mind those universal doctrines of interpretation which it is necessary for every lawyer to understand, whatever may be his special department. If some of them appear more particularly applicable to civil causes and others to criminal, still all to be here given of each class are essential to a proper apprehension of those of the other class. § 69. How this Chapter divided. — We shall consider, I. What it is that Interpretation seeks ; II. Into what, besides the Writ- ten Words, the Interpreter looks. I. What it is that Interpretation seeks. § 70. Meaning of Maker. — Laws are expounded and enforced, not made, by the courts. The makers are entitled to have their real meaning, if it can be ascertained, carried out. Hence the primary object of all rules for interpreting statutes is to ascertain the legislative intent ; ^ or, exactly, the meaning which the sub- 1 Wilkinson v. Leiand, 2 Pet. 627, 662; Peerage, 11 CI. & F. 85, 143 ; Bidwell v. Brown v. Thomdike, 15 Pick. 388, 402; Whitaker, 1 Mich. 469; Ogden v. Strong, Winslow V. Kimball, 25 Maine, 498 ; Rid- 2 Paine, 584 ; Crocker v. Crane, 21 Wend, dick 17. The Governor, 1 Misso. 147 ; Beall 211; Kilby Bank, Petitioner, 23 Pick. V. Harwood, 2 Har. & J. 167 ; The Sussex 93 ; Opinion of the Justices, 22 Pick. 671 ; 57 § 72 INTERPRETATION. [BOOK II. ject is authorized to understand the legislature intended.^ Hence, also, — Personal Views of Judges. — If the courts can ascertain the legislative meaning, their duty is to give it effect, whatever may- be the personal opinions of the incumbents of the bench on the policy of the law.^ § 71. Interpretation indispensable. — Were the courts not to interpret the laws, they could not administer them. For, in the words of Lord Chief Justice Eyre, " let the proposition in an act of Parliament be what it may, more or less distinct, it is always a question of law what is the meaning and the true import of that act of Parliament, and whether any case of fact that can be stated is a case that comes within the meaning of that act of Par- liament. . . . No distinction can be taken in this case, because it happens that the description of the offence in the statute . . . is comprised in two or three words ; the law may be clearer upon that account ; but the rule of construction, with reference to the question whether it should be taken to be the construction of law, a mere matter of fact, is exactly the same." ^ Still, — § 72. Iiimit of Interpretation — (Meaning plain). — Like every thing else, interpretation has its limits, beyond which it cannot legitimately go.* Where the legislative meaning is plain, there is, not only no occflsion for rules to aid the interpretation, but it is contrary to the rules to employ them. The judges have simply to enforce the statute according to its obvious terms.^ Yet — Simonds v. Powers, 28 Vt. 354; Molntyre Maxwell v. The State, 40 Md. 273; Hor- V. Ingraham, 35 Missis. 25 ; Riddick v. ton v. Mobile, 43 Ala. 598, 604. Walsh, 15 Misso. 519 ; Ingraham v. Speed, '■' Post, § 235 ; 1 Bishop Mar. & Biv. 30 Missis. 410 ; People v. Dana, 22 Cal. § 45, 46 ; The State v. Clarke, 54 Misso. 11; Parkinson v. The State, 14 Md. 184; 17; Horton v. Mobile, 43 Ala. 598, 604. People V. Potter, 47 N. Y. 375 ; Smith v. In Pray v. Edie, 1 T. R. 313, 314, Lord People, 47 N. Y. 330 ; People v. Weston, Mansfield said : " Whatever doubts I 3 Neb. 312 ; Jones o. The State, 1 Kan. may have in my own breast with respect 273 : United States v. Athens Armory, 2 to the policy and expedience of this law, Abb. U. S. 129, 137 ; Albrecht v. The yet, as long as it continues in force, I am State, 8 Texas Ap. 313 ; The State v. bound to see it executed according to its Blair, 32 Ind. 313 ; George «. Board of meaning." Education, 33 Ga. 344 ; Emporia v. Nor- ' Home Tooke's Case, 25 Howell St. ton, 16 Kan. 236 ; Dwar. Stat. 2d ed. 556. Tr. 1, 728 ; post, § 116. 1 And see Manuel v. Manuel, 13 Ohio * Post, § 81. State, 458 ; Johnson v. Hudson River Rail- * Douglass v. Chosen Freeholders, 9 road, 49 N. Y. 455 ; People v. Schoon- Vroom, 214 ; Hyatt v. Taylor, 42 N. Y. maker, 63 Barb. 44, 49; Barker v. Esty, 258, 260; Sussex Peerage Case, 11 CI. & 19 Vt. 131 ; The State v. King, 44 Misso. F. 85, 143 ; Benton v. Wickwire, 54 N. Y. 283 ; Cearf 088 v. The State, 42 Md. 403 ; 226 ; Rosenplaenter v. Roessle, 54 N. Y. 58 CHAP. VIII.] PURPOSE AND MEANS. § 75 § 73. Importance of Rules. — There are large classes of cases dependent even upon technical rules of interpretation. And there are others, not quite like these, wherein still the rules are very helpful. Every statute is pi'esumed to have been penned and enacted by persons familiar with them ; ^ so that, without a knowledge of these rules, no one can intelligently practise or administer the laws. II. Into what, besides the Written Words, the Interpreter looks. § 74. Judicial Cognizance. — Obviously, in reason, a court in construing a statute is not required to stultify itself ; but it may take into the account any pertinent matter whereof it has judicial cognizance.^ Hence, among other things, — Rules of Interpretation. — Knowing the rules of interpretation, it presumes that the legislature also understood them ; and, omitting to prescribe other rules, intended the courts should fol- low them.* Then, — § 76. In Position of Legislature. — The court should put itself in the position of the legislature, — stand, in contemplating the statute, where the maker of it stood,* — the better to discern the reason and scope of the provision. They who voted for the meas- ure must have had in mind a meaning for the enacted words ; and the meaning, thus perceived, must be given them by the court.^ Thus, — Time, — If the statute is old, or if it is modern, the court should transport itself back to the time when it was framed, consider the condition of things then existing, and give it the meanings which the language as then used, and the other considerations, require.® Again, — 262 ; Woodbury v. Berry, 18 Ohio State, maker, 63 Barb. 44. For a synopsis of 456 ; Burgett v. Burgett, 1 Ohio, 469, 477 ; what a court takes judicial notice of, see Procureur v. Bruneau, Law Kep. 1 P. C. 1 Greenl. Ev. § 4-6. 169, 191 ; Bosley v. Mattingly, 14 B. » Commonwealth v. Churchill, 2 Met. Monr. 89; Ezekiel v. Dixon, 3 Kelly, 118,124; The State v. Brooks, 4 Conn. 146 ; Farrel Foundry v. Dart, 26 Conn. 446. 376 ; Swift v. Luce, 27 Maine, 285 ; United < Ante, § 50. States V. Eagsdale, Hemp. 497. ' Ante, § 70. 1 Post, § 74. 6 McWilliam v. Adams, 1 Maeq. Ap. 2 See The State v. Nicholls, 30 La, An. Cas. 120 ; Montrose Peerage, 1 Macq. 980 ; Fretwell v. Troy, 18 Kan. 271 ; Key- Ap. Cas. 401 ; Keyport, &c. Steamboat Co. port, &c. Steamboat Co. v. Farmers' Trans, v. Farmers' Trans. Co. 3 C. E. Green, 13 ; Co. 3 C. E. Green, 13; People v. Schoon- United States a. Union Pacific Railroad, 69 § 76 INTEEPEETATION. [BOOK U. Prior Law. — The court, knowing the present law, knows also its history, and the prior law. Such prior law the legislature, being presumed to know it, must have had in mind in enacting the statute, therefore in the construction the court should take it into the account.^ And this is, in general, specially essential.^ § 76. Motives and Intent. — The individual motives and pur- poses of the legislature are not judicially known, nor is the court permitted to ascertain them from any private source, nor are they to be regarded in the interpretation. But the court may and should look into so much of the intent of the act as is discoverable from its words, and from the permissible surroundings.^ Among the surroundings are — Legislative Opinions. — How far opinions promulgated in con- nection with the making of a statute are to be regarded in its interpretation is an inquiry more easily answered on principle than on authority. Practical obscurities arise from the fact, that commonly there are two dissimilar aspects from which such opinions are to be viewed. Courts properly look into legal treatises, whose only weight consists in their citation of author- ities and the learning of their authors.* In like manner, they sometimes give attention to opinions of learned lawj^ers in the various other ways expressed.^ In this aspect, it is evidently proper for them to look, if they choose, into discussions by law- yers in the legislative body, the views of the draughtsman of a bill, of the revisers of statutes, and of the legislature passing an act. As authority, this sort of matter is not admissible. As opinion to persuade, it varies with the particular circumstances.* A fortiori, .the opinion of a subsequent legislature is entitled to 91 U. S. 72, 79; Logan v. Courtown, 13 Cal. 634; The State v. King, 12 La. An. Beav. 22. 693 ; People v. Schoonmaker, 63 Barb. 1 Keg. V. Watford, 9 Q. B. 626, 635 ; 44 ; Parkinson v. The State, 14 Md. 184 ; Jones V. Brown, 2 Exch. 329, 332 ; Kel- People v. Essex, 70 N. Y. 228; Gas Co. v. lock's Case, Law Rep. 3 Ch. Ap. 769, 781 ; Wheeling, 8 W. Va. 320; Jones v. The O'Byrnes i>. The State, 51 Ala. 25; Cota State, 1 Kan. 273; United States v. V. Ross, 66 Maine, 161 ; The State v. Athens Armory, 2 Abb. U. S. 129, 137. Brewer, 22 La. An. 273 ; Converse v. * Bishop First Book, § 202-205. United States, 21 How. U. S. 463 ; Noble ^ lb. § 449 ; People v. Liscomb, 60 .;. The State, 1 Greene, Iowa, 325. N. Y. 559, 580. 2 2 Inst. 308, 309 ; Fellowes v. Clay, 4 6 Keyport, &c. Steamboat Co. v. Far- Q. B. 313, 326. mers' Trans. Co. 3 C. E. Green, 13 ; 3 Ante, § 38 ; Barker v. Esty, 19 Vt. Leese v. Clark, 20 Cal. 387 ; The State v. 181 ; United States v. Union Pacific Rail- NichoUs, 30 La. An. 980. And see cases road, 91 U. S. 72, 79 ; The State v. Pater- cited to the next section. son, 6 Vroom, 196 ; Tynan v. Walker, 36 60 CHAP. VIII. j PUEPOSE AND MEANS. § 77 no more consideration than that of any other men of equal num- bers and intelligence.^ § 77. Compared with Private TWritings — (Contract). — The doc- trine as to private writings — for example, contracts — seems applicable also to this question of the statutes. Evidence of parol declarations, made by the parties at the time when a con- tract was entered into, is not admissible in explanation of its meaning.2 Therefore the hke declarations, uttered in the legis- lative body, are not, except as explained in the last paragraph, receivable on a question of the interpretation of a statute. Now, — Doctrine Summarized — (Legislative Doings, Journals, &c.). — Excepting as thus explained, and inquiring for what may control the interpretation, the rule of law is distinct, that the courts cannot resort to the opinions of the individual legislators, the legislative journals, the reports of committees, or the speeches made at the time an act was passed ; ^ their sole guide being the language,* illumined simply as already shown.^ They do not close their eyes to what they know of the history of the country and of the law, of the condition of the law at the particular time, of the public necessities felt, and other like things.^ For a sum- mary of the doctrine as held in England," the reader is referred 1 Bingham ». Winona, 8 Minn. 441. ' Wilberforce (Stat. Law, 105-107) 2 Bishop Con. § 58 ; 1 Greenl. Ev. says : " If a statute Is not clearly worded, § 275. its Parliamentary history is ' wisely inad- ' Reg. V. Whittaker, 2 Car. & K. 636, missible' to explain it. Eeg. v. Hertford 640; Bank of Pennsylvania v. Common- College, 3 Q. B. D. 693, 707. The court wealth, 7 Harris, Pa. 144 ; Southwark cannot consider what wag the intention Bank v. Commonwealth, 2 Casey, Pa. of the member of Parliament by whom 446 ; Aldridge v. Williams, 3 How. U. S. any measure was introduced. See Mc- 9, 24 ; EatcIifE v. Katcliff, 1 Swab. & T. Master v. Lomax, 2 Myl. & K. 32 ; Cam- 467, 470 ; Coleman v. Dobbins, 8 Ind. 156. eron v. Cameron, 2 Myl. & K. 289. It * " Intention of the legislature appar- cannot look at the reports of commissions ent upon its face," that is, face of the which preceded the passing of statutes, act. Wilkinson v. Leland, 2 Pet. 627, and upon wliich those statutes were 662 ; People v. Utica Ins. Co. 15 Johns, founded. Thus it was held that the 358, 380 ; Barnes v. Mobile, 19 Ala. 707 ; reports and recommendations of the Eeal The Paulina v. United States, 7 Cranch, Property dommissioners, Salkeld v. John- 52. son, 2 C. B. 749, 756, per Tindal, C. J. ; 6 Story Const. § 406 ; Horton v. Mo- Farley v. Bonham, 2 Johns. & H. 177, 30 bile, 43 Ala. 598, 604. Law J. Ch. 239, of the Ecclesiastical 6 Rex V. Hodnett, 1 T. E. 96 ; Sibley Commissioners, In re Dean of York, 2 V. Smith, 2 Mich. 486 ; Henry v. Tilson, Q. B. 1, 34, of the Common Law, Martin 17 Vt. 479 ; United States v. Union Pacific v. Hemming, 24 Law J. Exch. 3, 5, 18 Railroad, 91 U. S. 72, 79 ; Greer ... The Jur. 1002, 1004 ; Arding v. Bonner, 2 Jur. State, 54 Missis. 378. k. s. 763. 764, and of the Chancery, Ewart 61 §77 INTBEPEETATION. [book II. to the note. It would seem to be, at least, equally strict there as with us. V. Williams, 3 Drewry, 21, 24, Commis- sioners, were not legitimate guides to the construction of statutes. So, too, the plans and sections of intended lines of railway, or of other works which are exhibited durmg the passage of bills through Parliament, are not, unless they are incorporated by reference in the acts when passed, to be regarded in their con- struction. North British Railway v. Tod, 12 CI. & F. 722 ; Reg. v. Caledonian Rail- way, 16 Q. B. 19 ; Beardmer v. London, &c. Railway, 1 Macn. & G. 112, 1 Hall & T. 161 ; Attorney-General v. Great East- ern Railway, Law Rep. 7 Ch. Ap. 475, Law Rep. 6 H. L. 367 ; Edinburgh Street Tramways v. Black, Law Rep. 2 Sc. Ap. 336 ; "Ware v. Regent's Canal, 3 De G. & 62 J. Ch. 212, 28 Law J. Ch. 153; Reg. v. Wycombe Railway, Law Rep. 2 Q. B. 310, 321, 322. The court cannot look at the history of a clause, or of the intro- duction of a proviso, Barbat v. Allen, 7 Exch. 609, 616 ; Reg. v. Capel, 12 A. & E. 882, 411, nor at debates in Parliament, Reg. u. Whittaker, 2 Car. & K. 636, 640; Gorham v. Bishop of Exeter, 5 Exch. 630, 667, nor at amendments and altera- tions made in committee, Ponegall v. Layard, 8 H. L. Cas. 460, 465, 472, 473; Attorney-General ;;. Sillem, 2 H. & C. 431, 521, 522, nor at the principles which gov- ern Houses of Parliament in passing pri- vate bills, Rex v. London Dock, 6 A. & E. 163, 175." CHAP. IX.] EPITOMIZED RULES. § 79 CHAPTER IX. SOME LEADING EXJLES OP INTEEPKETATION EPITOMIZED. § 78. Here — Elsewhere. — For the convenience of the reader, the more common rules of interpretation will be collected into this chapter in a condensed form. Such of them as require, not all, will be further explained in subsequent chapters. And various rules, not mentioned here, will be brought to view further on. Punctuation. — The statutes in England are not punctuated in the original rolls ; ^ but more or less marks of punctuation appear in them as printed by authority. With us, the punctuation is the work of the draftsman, the engrosser, or the printer. In the legislative body, the bill is read ; so that the ear, not the eye, takes cognizance of it. Therefore the punctuation is not, in either country, of controlling effect in the interpretation.^ Still a judge cannot avoid seeing the marks, and they seem to have been permitted to turn the scale in an evenly balanced case.^ § 79. Clerical Errors. — As in an indictment,* so in a statute, clerical errors do not avoid what to the common understanding is plain. If the true reading is evident, and the meaning is, not- withstanding the errors, certain, the statute stands, and is to be interpreted as though they were corrected.* Still this doctrine cannot be carried to all lengths ; but, — 1 Barrow v. Wadkin, 24 Beav. 327. narily from hearing the indictment read, 2 BarrowB.Wadkin, supra; Shriedley and not from the inspection of it. But ». The State, 23 Ohio State, 130, 140 ; these indications of the meaning of the Gushing v. Worrick, 9 Gray, 382, 385 ; pleader are addressed to the eye : they United States v. Isham, 17 Wal. 496, 502. are not perceptible to the ear," &c. Com- So Quotation Marks, — in an indict- monwealth v. Wright, 1 Gush. 46, 65. ment, used in setting out the copy of an ' Cummings i;. Akron Gement, &c. Go. iastrument relied on, were held not to 6 Blatch. 509, 511 ; United States v. Three show that the tenor, rather than the pui^ Kailroad Gars, 1 Abb. U. S. 196 ; Han- port, was intended. Forbes, J. observed : dolph a. Bayue, 44 Gal. 366 ; Morrill v. " The practice in arraignments is to read The State, 38 Wis. 428. the indictment to the prisoner, and then < Grim. Proced. I. § 357. to receive his plea. His knowledge of 6 ggg, and compare. Moody v. Stephen- the charge against him is derived ordi- son, 1 Minn. 401 ; Stoneman v. Whaley, 63 § 81 INTBEPRBTATION. [BOOK II. § 80. To be accepted as enacted. — Except as thus pointed out, a statute must be taken to be what the authoritative record makes it.i We cannot, to bring it to our views, import into it words not used by the law-makers ; ^ or control it, when unambiguous, though we think it is not what it should be ; ^ and, in those cases in which we may bend the meaning of particular words and phrases to the general intent or the like, there is a degree beyond which the process cannot be carried.* The degree differs with the circumstances ; and to ascertain both is a leading object of these chapters on interpretation. Again, — § 81. False Grammar. — Like an indictment,^ a statute is not rendered inoperative by false grammar,^ and inelegancies and impurities of expression. For example, — Disjunctive and Conjunctive. — Conjunctive sentences, describ- ing different branches of the same offence, will be construed as conjunctive or disjunctive according to the evident meaning of the law-makers.^ And — Inaccurate. — Words and expressions inaccurately used will be given the sense intended, where it appears on the whole face of the act.^ Even in opposition to the strict letter, the clear purpose of the legislature, as apparent on inspection of the statute itself, will be carried out.^ But — Limit. — This doctrine applies only where the true intent is 9 Iowa, 390; Bostick v. The State, 34 Smith, 2 Mich. 486; Green „. Cheek, 5 Ala. 266 ; Gardner v. The State, 25 Md. Ind. 105. 146 ; Nazro v. Merchants' Mutual Insur- * Putnam v. Longley, 11 Pick. 487, ance Co. 14 Wis. 295 ; Sparrow v. David- 490 ; Pitman v. Flint, 10 Pick. 504, 506 ; son College, 77 N. G. 35; ToUett v. Eeg. «. Simpson, 10 Mod. 341, 344; Kex Thomas, Law Eep. 6 Q. B. 514, 518 ; v. The Poor Law Commissioners, 6 A. & Graham v. Charlotte, &c. Kailroad, 64 E. 1, 7 ; Rex v. Stoke Damerel, 7 B. & C. N. C. 681 ; Holland u. Commonwealth, 1 563; Dwar. Stat. 2d ed. 583 et seq. 595, Norris, Pa. .306, 326 ; Angell v. Angell, 9 698 ; United States v. ■Wamer,-4 McLean, Q. B. 328, 360 ; Haney v. The State, 34 463. Ark. 263 ; Turner v. The State, 40 Ala. « Crim. Proced. L § 348-355. 21 ; Lindsley v. Williams, 5 C. E. Green, 6 Garrigus v. Parke, 39 Ind. 66. 83. T Post, § 243 ; The State u. Myers, 10 1 Ante, § 72 ; post, § 145, 146. Iowa, 448. 2 Dwar. Stat. 2d ed. 579 ; King o. 8 Rex v. Bullock, 1 Taunt. 71 ; Crocker Burrell, 12 A. & E. 460, 468 ; Lamond v. Crane, 21 Wend. 211 ; Alexander v. V. Eiffe, 3 Q. B. 910 ; Rex v. Vandeleer, "Worthington, 5 Md. 471 ; Erwin v. Moore, 1 Stra. 69 ; Rex v. Pereira, 2 A. & E. 15 Ga. 361. See People v. Clute, 12 Abb. 375, 380; Bloxam b. Elsee, 6 B. & C. 169, Pr. n. s. 399 ; Thorp v. Schooling, 7 Nev. 176. 15 ; Nichols v. HalUday, 27 Wis. 408. 8 Bidwell V. Whitaker, 1 Mich. 469 ; » Ingraham v. Speed, 30 Missis. 410. Bartlett v. Morris, 9 Port. 266; Sibley v. 64 CHAP. IX.J EPITOMIZED KULES. § 82 manifest in the act itself, or in it compared with other acts on the same subject.^ Now, — § 82. Group of Doctrines. — Bearing in mind the cardinal pur- pose of all interpretation, — namely, to ascertain the true legis- lative intent,^ — and remembering that each particular rule stands in subordination to this purpose, and is to be followed only when and so far as it contributes to this result, let us arrange around it, as in a cluster, some of the subordinate rules. Thus, — Harmony with Intent. — The Statute should, if possible, be con- strued in a way to render each separate provision harmonious with its general intent.^ Every Word and Clause a Meaning. — Every word and clause should, if possible, have assigned to it a meaning, leaving no use- less words.* And, — Giving Eiffect to "Whole. — A fortiori, the construction should be such as will not leave the entire enactment without effect.^ Repugnancy. — Nor should an interpretation be admitted, if avoidable, which wiU render one clause repugnant to another, but all should stand.^ Absurdity — Injustice — Inconvenience. — The interpretation should lean strongly to avoid absurd consequences,'' injustice,^ 1 Ante, § 72 ; Ezekiel v. Dixon, 3 Kel- McLean, 463 ; Opinion of the Justices, ly, 146 ; Swift v. Luce, 27 Maine, 285 ; 22 Pick. 571, 573 ; Attorney-General v. Kiddlck V. Walsh, 15 Misso. 519. Detroit and Erin Plank Road, 2 Mich. 2 Ante, § 70 ; Mardre v. Felton, Phil- 138 ; James v. Dubois, 1 Harrison, 285 ; lips, N. C. 279 ; Leoni v. Taylor, 20 Mich. Hutchen u. Niblo, 4 Blackf . 148 ; Green 148 ; Encking v. Simmons, 28 Wis. 272, v. Cheek, 5 Ind. 105 ; Gates v. Salmon, 35 276; Frye i-. Chicago, &c. Railroad, 73 Cal. 576; Hagenbuck y. Reed, 3 Neb. 17 ; 111. 399 ; Sussex Peerage, 11 CI. & E. 85. People v. Burns, 5 Mich. 114 ; Lacy v. 3 Dwar. Stat. 2d ed. 582, 597 ; Arthur Moore, 6 Coldw. 348 ; People v. King, 28 V. Bokenham, 11 Mod. 148, 161 ; -Mendon Cal. 265. V. Worcester, 10 Pick. 235, 242 ; Com- 6 Nichols v. Halliday, 27 Wis. 406 ; monwealth v. Cambridge, 20 Pick. 267, Bailey u. Commonwealth, 11 Bush, 688 ; 271 ; United States u. Fisher, 2 Cranch, Manis v. The State, 3 Heisk. 315, 316. 358, 399; The State v. Stinson, 17 Maine, « Dwar. Stat. 2d ed. 568, 577, 578, 594 ; 154; Holbrook v. Holbrook, 1 Pick.-248; 1 Bl. Com. 89; San Francisco v. Hazen, Livingston v. Indianapolis Insurance Co. 5 Cal. 169; Brooks v. Mobile, 31 Ala. 227. 6 Blackf. 133 ; Scofleld v. Collins, 3 Cow. ' 1 Bl. Com. 91 ; Dwar. Stat. 2d ed. 89, 96 ; The State v. Smith, Cheves, 157 ; 587 ; Bailey v. Commonwealth, 11 Bush, Commonwealth u. Slack, 19 Pick. 304 ; 688 ; Rex ». Banbury, 1 A. & E. 136, 142 ; Wilson V. Biscoe, 6 Eng. 44; George v. Commonwealth v. Loring, 8 Pick. 370; Board of Education, 33 Ga. 344. Jeffersonville v. Weems, 5 Ind. 547 ; Henry ^ Bac. Abr. Statute I. 2; Powlter's «. Tilson, 17 Vt. 479 ; The State v. Clark, Case, 11 Co. 29 a. Ma; Rawson v. The 5 Dutcher, 96. State, 19 Conn. 292 ; Wilson v. Biscoe, 6 « Magdalen College Case, 11 Co. 66 h, Eng. 44 ; United States v- Warner, 4 73 6 ; Co. Lit. 360 ; Commonwealth o. 5 65 §82 INTERPRETATION. [book II. and even great inconvenience ; ^ for the legislative meaning is to be carried out, and it cannot be supposed to be any of these. So,— Doubtful Power. — The exercise even of a doubtful power will not be attributed to the legislature ; therefore construction will lean against it.^ And, — Expressed Intent — Implied. — If the legislature has expressed its intent in the act, it will be carried out, though to the over- riding of the ordinary rules of interpretation ; ^ as, in like manner, will its intent in any other way sufficiently appearing.* Litigation. — An interpretation not opening the door to litiga- tion will be preferred.^ Also, — Retrospective. — Though statutes are often applied retrospec- tively, they are not so in general, and in most circumstances construction will lean against it.^ On the other hand, — Eluded — Defeated. — The coiu'ts will endeavor so to shape the meaning of a statute that it can neither be eluded ^ nor its pur- poses defeated.^ The Parts, and other Laws and Acts, together. — All its parts,^ Slack, 19 Pick. 304 ; Meade u. Deputy Marshal, 1 Brock. 324 ; Murray v. Gib- son, 15 How. U. S. 421 ; Ham v. McClaws, 1 Bay, 93, 98 ; Robinson v. Varnell, 16 Texas, 3S2 ; The Ohio v. Stunt, 10 Ohio State, 582. 1 United States v. Pisher, 2 Cranch, 358, 386 ; Hughes v. Hughes, Carter, 125, 136; Ayers v. Knox, 7 Mass. 306, 310; Putnam u. Longley, 11 Pick. 487, 490; Associates of Jersey v. Davison, 5 Dutch- er, 415. 2 Mardre v. Pelton, PhilUps, N. C. 279. " Farmers' Bank v. Hale, 59 N. Y. 53; Chapin v. Crusen, 31 Wis. 209. * Ante, § 70, 72, 81 ; Stowel o. Zouch, I Plow. 353, 365 ; Arthur v. Bokenham, II Mod. 148, 161 ; McDermut v. Lorillard, 1 Edw. Ch. 273, 276; Ayers v. Knox, 7 Mass. 306 ; Dwar. Stat. 2d ed. 593 ; The State V. Harkness, 1 Brev. 276 ; Castner V. Walrod, 83 Bl. 171, 179; Smith v. Peo- ple, 47 N. Y. 830 ; The State v. King, 44 Misso. 283. 6 Gale V. Laurie, 5 B. & C. 156, 164. 6 Post, § 83-85 h ; Thompson v. Lack, 3 C. B. 540, 551 ; 1 Bishop Mar. & Div. § 99-103 ; Moon o. Durden, 2 Exch. 22 ; 8. 0. nom. Moore v. Dtu-den, 12 Jur. 138 ; 66 Plumb V. Sawyer, 21 Conn. 351 ; Hooker V. Hooker, 10 Sm. & M. 599; Bruce v. Schuyler, 4 Oilman, 221 ; Barnes v. Mo- bile, 19 Ala. 707 ; Torrey v. CorUss, 33 Maine, 333 ; Murray v. Gibson, 15 How. U. S. 421, 423 ; Pritchard v. Spencer, 2 Ind. 486; Garrett v. Wiggins, 1 Scam. 335 ; Quackenbush v. Danks, 1 Denio, 128 ; Hastings v. Lane, 15 Maine, 134 ; Forsyth v. Marbury, K. M. Charl. 324 ; Guard v. Rowan, 2 Scam. 499 ; Dash v. Van Kleeck, 7 Johns. 477 ; Von Schmidt V. Huntington, 1 Cal. 55 ; Mason v. Finch, 2 Scam. 223 ; Alexander v. Worthington, 5 Md. 471 ; Belleville Railroad v. Greg- ory, 15 111. 20 ; Stewart v. The State, 13 Ark. 720 ; Buckner v. Street, 1 Dil. 248; Ryan v. Hoffman, 26 Ohio State, 109; White 0. Blmn, 4 Neb. 555 ; People v. Strack, 3 Thomp. & C. 166, 1 Hun, 96 ; Morgan v. Perry, 51 N. H. 659. ' 2 Rol. 127 ; Dwar. Stat. 2d ed. 568; Moore v. Hussey, Hob. 93, 97 ; Magdalen College Case, 11 Co. 66, 73 i; Powlter's Case, 11 Co. 29, 34 a ; Winter v. Jones, 10 Ga. 190 ; Anonymous, 12 Co. 89. 8 Thompson v. The State, 20 Ala. 54; Cook V. Hamilton, 6 McLean, 112. 8 Post, § 86; Bao. Abr. Statute, L 2; CHAP. IX.J EPITOMIZED KULES. 82 and all acts,^ " though made at diiferent times or even expired " ^ or repealed,^ and the entire system of laws,* and the common law,^ touching the same matter, must be taken together ; ^ and, if one part standing by itself is obscure, it may be aided by another which is clear.'' Prior Law — Mischief — Remedy. — The interpreter should con- sider and take into the account what was the law before,^ which Coke says is " the very lock and key to set open the windows of the statute ; " ^ the mischief against which the law did not pro- vide ; the nature of the remedy proposed, and the true reason of the remedy.!" It has been said that we may learn the mischief " from our knowledge of the state of the law at the time, and of the practical grievances generally complained of." ^^ Public and Private Interests. — Great public interests will not Met. 408 ; Hewlett v. The State, 5 Yerg. 144 ; Holland v. Makepeace, 8 Mass. 418, 42-3 ; Holbrook v. Holbrook, 1 Pick. 248, 254 ; The State v. Baldwin, 2 Bailey, 541 ; The State v. Fields, 2 Bailey, 554 ; Thayer V. Bond, 3 Mass. 296 ; Whi^te v. Johnson, 2.3 Missis. 68 ; Rex v. Morris, 1 B. & Ad. 441 ; The State v. Wilbor, 1 R. I. 199 ; De Orraas Case, 10 Mart. La. 158, 172 ; People V. Hart, 1 Mich. 467 ; The State V. Garthwaite, 3 Zab. 143 ; The Harriet, 1 Story, 251 ; Scott v. Searles, 1 Sm. & M. 590 ; The State v. Mister, 5 Md. 11 ; United States v. Freeman, 3 How. U. S. 556; Hayes v. Hanson, 12 N. H. 284; Berry v. The State, 10 Texas Ap. 315 ; Goodrich v. Russell, 42 N. Y. 177. ' Rex V. Palmer, 1 Leach, 4th ed. 352, 355 ; Commonwealth v. Slack, 19 Pick. 304 ; Crespigny v. Wittenoom, 4 T. R. 790. 8 Ante, § 6 ; Bac. Abr. Statutes, I. 4 ; Dwar. Stat. 2d ed. 563, 564. 9 2 Inst. 308. 1° Heydon's Case, 3 Co. 7 ; Winslow v. Kimball, 25 Maine, 493 ; Pray v. Edie, 1 T. R. 313; Rex v. Hodnett, 1 T. R. 96, 100 ; 1 Bl. Com. 87 ; Jortin v. Southeast- em Railway, 3 Eq. Rep. 281, 1 Jur. n. s. 433, 31 Eng. L. & Eq. 320; People v. Greer, 43 111. 213 ; Hugman v. The State, 29 Ala. 40; Parkinson v. The State, 14 Md. 184. 11 Lyde v. Barnard, 1 M. & "W. 101, 114. And see The State v. Smith, Cheves, 157. 67 Adams c. Woods, 2 Cranch, 336, 341; Commonwealth v. Robertson, 5 Cush. 438 ; Magruder v. Carroll, 4 Md. 335; Tor- rance u. McDougald, 12 Ga. 526 ; Ogden V. Strong, 2 Paine, 584 ; Brown v. Wright, 1 Green, N. J. 240 ; In re Murphy, 3 Zab. 180 ; Van Riper v. Essex Public Road, 9 Vroom, 23 ; Albrecht v. The State, 8 Texas Ap. 313. In reference to this rule it was observed in Massachusetts, that the Revised Statutes were all passed at one time, and so constitute one act. Com- monwealth V. Goding, 3 Met. 180. Such is said also to be the rule respecting stat- utes passed at one session. Peyton u. Moseley, 3 T. B. Monr. 77. 1 Le Roy v. Chabolla, 2 Abb. V. S. 448 ; The State v. Stewart, 47 Misso. 382 ; People V. Weston, 3 Neb. 312. ^ Lord Mansfield in Rex v. Loxdale, 1 Bur. 445, 447 ; Coleman v. Davidson Acad- emy, Cooke, Tenn. 258. 3 Church V. Crocker, 8 Mass. 17, 21 ; Bank for Savings v. The Collector, 3 Wal. 495. * McDougald v. Dougherty, 14 Ga. 674; ante, § 7, 62, 64; The State v. Jack- son, .36 Ohio State, 281. 6 Post, § 86, 88. 6 1 Bac. Abr. Statute, L 3 ; Dwar. Stat. 2d ed. 569 ; Duck v. Addington, 4 T. R. 447, 450 ; Ex parte Drydon, 5 T. R. 417, 419 ; Ailesbury v. Pattison, 1 Doug. 28, 30 ; Mendon v. Worcester, 10 Pick. 236, 242 ; Goddard v. Boston, 20 Pick. 407, 409; Wilde v. Commonwealth. 2 §82 INTERPRETATION. [book II. needlessly be put at hazard by the interpretation ; ^ and even private hardships will, when they may, be avoided.^ And — Public Policy. — Considerations of public policy are always per- tinent in the interpretation.^ Title — Preamble — Outside of Statute, — For these several pur- poses, we may take into view, as already seen,* what is said in the title and preamble ; and may consult any other source ^ of a nature proper for the cognizance of the courts.® 1 People V. Illinois, &c. Canal, 3 Scam. 153 ; Burbank v. Pay, 65 N. Y. 57 ; Van Loon V. Lyon, 4 Daly, 149. 2 Collins V. Carman, 5 Md. 503; Broad- bent V. The State, 7 Md, 416 ; Metropoli- tan Asylum Dist. v. Hill, 6 Ap. Cas, 193 ; People V. Hodgdon, 55 Cal, 72 ; Keeran V. Griffith, 34 Cal. 580, And see The State V. Bank of the State, 1 S. C, 63 ; Chapin v. Persse, &o. Paper Works, 30 Conn. 461 ; Pittsburg, &c. Railroad v. 68 South West Pa. Railway, 27 Smith, Pa. 173 ; Randolph v. Mlddleton, 11 C. E, Green, 543. 8 Baxter v. Tripp, 12 R. I, 310 ; Mobile V. Stein, 54 Ala, 23 ; Probasco v. Mounds- ville, 11 W. Va, 501, And see The State V. Clarke, 54 Misso. 17. i Ante, § 44-51. ^ United States u. Webster, Dareis, D. C, 38. 6 Ante, § 74-77 ; 1 Greenl. Ev. § 4-6. CHAP. X.] PROSPECTIVE AND EETKOSPECTIVE. § 83 « CHAPTER X. PEOSPECTIVB AND EETROSPECTIVB LEGISLATION AND INTBE- PEETATION. § 83. All Legislation, in a Sense, Prospective. — There is a sense in which, in the nature of things, no legislation is or can be other than prospective. The records of the past cannot be reversed ; the present can in no way deal otherwise than with itself and the future. But this is not the sort of view of things with reference to which we speak of prospective and retrospective legislation. In the practical sense, — Prospective and Retrospective, defined. — As the terms are com- monly used in the law, prospective legislation is such as provides rules for facts thereafter to transpire ; retrospective, for those which have partly or fully occurred. Prospective interpretation restricts the application of the new law to facts arising after its enactment ; retrospective, applies it to the past and present facts as well as the future. § 83 a. Distinctions — ^Constitutional — Politic and Probable — And the Reverse). — Under our written constitutions, some forms of retrospective legislation are by their terms or construction for- bidden ; ^ and then a statute embodying it will be, to this extent, inoperative, and no question can arise as to what the legislature intended.^ To be distinguished from these cases are those wherein, while a retrospective construction is not prohibited, it is a ques- tion whether or not the legislature meant its act to be so ap- i Crira. Law, I. § 279 ; post, § 85. 65 ; Brothers v. The State, 2 Coldw. 201 ; ^ Strong V. Clem, 12 Ind. 37 ; Logan Cook v. Mutual Ins. Co. 5-3 Ala. 37 ; V. Walton, 12 Ind. 639 ; Frantz v. Har- The State v. Doherty, 60 Maine, 504 ; row, 13 Ind. 507 ; Strong w. Dennis, 13 Ind. Dubois «. McLean, 4 McLean, 486; Gram- 514 ; Douglass v. Pike, 101 U. S 677 ; mar School v. Burt, 11 Vt. 6.32 ; Dash v. Hoagland v. Sacramento, 52 Cal. 142; VanKIeeck, 7 Johns. 477; Gunn w. Barry, Dequindre v. Williams, 31 Ind. 444 ; 15 Wal. 610 ; Union Iron Co. v. Pierce, 4 Lathrop v. Brown, 1 Woods, 474 ; Hart Bis. 327 ; Houston c. Bogle, 10 Ire. 496 ; V. The State, 40 Ala. 32; Finn v. Haynes, Lambertson v. Hogan, 2 Barr, 22 ; Ahl v. 37 Mich. 63; Jordan v. Wimer, 45 Iowa, Ehoads, 8 Norris, Pa. 319. 69 §84 INTEEPRETATION. [book II. plied ; ^ and whether such application would accord with sound policy, and with the other rules of interpretation.^ Then it will be construed the one way or the other as these considerations require. § 84. Rule for Interpretation, in General. — In the absence of any special indication or reason, and as the common rule, a statute will not be applied retrospectively, even where there is no con- stitutional impediment.^ Some of the cases appear to hold, that, to work an exception to this rule, the retrospective intent must affirmatively appear in the words themselves.* But, at least by the better doctrine, — Exceptions. — Some statutes extend to past transactions, even where their words are not direct to this effect.^ Thus, — . Procedure — (including Remedy). — Enactments regulating the procedure in the courts and the remedy are commonly applied to 1 Sturgis V. Hull, 48 Vt. 302 ; Bald- win V. Newark, 9 Vroom, 158 ; Wilson v. Eed Wing School Dist. 22 Minn. 488; Ballard v. Ward, 8 Norris, Pa, 358. 2 Reg. V. Vine, Law Eep. 10 Q. B. 195 ; Reed v. Rawson, 2 Litt. 189 ; Wilder v. Lumpkin, 4 Ga. 208 ; Cook ■/. Sexton, 79 N. C. 305 ; Austin u. Stevens, 24 Maine, 520; Miller v. Moore, 1 E. D. Smith, 739 ; Bronson v. Newberry, 2 Doug. Mich. 38; Smith v. Kibbee, 9 Ohio State, 563; Johnson v. Johnson, 26 Ind. 441 ; Annable V. Patch, 3 Pick. 360, 363 ; Miller v. Miller, 16 Mass. 59 ; The State v. Wolfarth, 42 Conn. 155 ; The State v. Wilmington, &c. Railroad, 74 N. C. 143; The State v. Smith, 38 Conn. 397 ; Perry v. Common- wealth, 3 Grat. 6-32 ; Bensley v. Ellis, 39 Cal. 309. ^ Cases cited ante, § 82, 83 a ; also Eakin v. Raub, 12 S. & R. 330 ; Saunders u. Carroll, 12 La. An. 793 ; Brown v. Wil- cox, 14 Sm. & M. 127 ; Briggs v. Hubbard, 19 Vt. 86 ; The State v. Bradford, 36 Ga. 422 ; Dewart v. Purdy, 5 Casey, Pa. 113 ; Hopkins v. Jones, 22 Ind. 310 ; Seamans V. Carter, 15 Wis. 548 ; People u. San Francisco, 21 Cal. 668 ; Jarvis v, Jarvis, 3 Edw. Ch. 462 ; Head v. Ward, 1 J. J. Mar. 280 ; United States v. Starr, Hemp. 469 ; Aurora and Laughery Turnpike v. Holthouse, 7 Ind. 59 ; The State v. At- wood, 11 Wis. 422 ; Reynolds u. The State, 1 Kelly, 222 ; People v. San Eran- 70 Cisco, 4 Cal. 127 ; Whitman v. Hapgood, 10 Mass. 437, 489 ; Somerset v. Dighton, 12 Mass. 383, 385 ; Medford ■/. Learned, 16 Mass. 215 ; Van Rensselaer v. Liv- ingston, 12 Wend. 490 ; Ex parte Graham, 13 Rich. 277 ; The State v. Scudder, 3 Vroom, 203 ; Taylor v. Mitchell, 7 Smith, Pa. 209 ; Moon v. Durden, 2 Exch. 22 ; Reg. V. Ipswich Union, 2 Q. B. D. 269 ; In re Suche, 1 Ch. T>. 48, 50 ; Western Union Railroad v. Fulton, 64 III. 271; Reg. V. Gratrex; 12 Cox C. C. 157, 2 Eng. Rep. 210; Reis v. Graff, 51 Cal. 86; Peo- ple V. O'Neil, 51 Cal. 91 ; People v. Kins- man, 51 Cal. 92 ; People v. McCain, 51 Cal. 360; People u. Peacock, 98 111. 172; Gardner v. Lucas, 3 Ap. Cas. 582, 600, 601, 603. * The State v. Hays, 52 Misso. 578; The State v. Newark, 11 Vroom, 92 ; The State V. Thompson, 41 Misso. 25 ; Smith V. Humphrey, 20 Mich. 398 ; People «. Co- lumbia, 43 N. Y. 130 ; La Salle v. Blanch- ard, 1 Bradw. 635 ; Eiuney v. Ackerman, 21 Wis. 268 ; The State v. Ferguson, 62 Misso. 77. ' See Watkins v. Haight, 18 Johns. 138 ; People v. Carnal, 2 Seld. 463 ; Peo- ple V. Clark, 3 Seld. 385 ; Von Schmidt v. Huntington, 1 Cal. 55 ; Adams v. Chap- lin, 1 Hill Ch. 265 ; Baldwin v. Newark, 9 Vroom, 158 ; Sturgis u. Hull, 48 Vt. 302. CHAP. X.J PEOSPECTIVE AND EETEOSPBCTIVE. § 84 a the enforcement of rights already accrued,' and even to causes actually in progress.^ But, in special circumstances, and espe- cially as to causes in progress, this exception, which is the rule for the litigation within it, gives way to the other and general rule.^ Again, — § 84 a. Reason of the Law — (Divorce). — The doctrine — at least, the better doctrine — is believed to be general, that, when- ever the reason of the new law includes alike past transactions and future ones, and no injustice, will result, and no constitutional restriction interposes, general words will be construed both retro- spectively and prospectively.* Of this sort, by the better opinion, are divorce laws.^r And — 1 Post, § 175 ; Gardner ». Lucas, 3 Ap. Cas. 582, 601, 603; Rockwell v. Hubbell, 2 Doug. Mich. 197; People v. Peacock, 98 111. 172 ; Edmonds v. Lawley, 6 M. & "W. 285. 2 Mercer v. The State, 17 Ga. 146 ; Jacquins v. Commonwealth, 9 Gush. 279 ; Sampeyreac v. United States, 7 Pet. 222 (but see People v. Carnal, 2 Seld. 463, and People V. Clark, 3 Seld. 385) ; Blair v. Gary, 9 Wis. 543; McNamara v. Minne- sota Cent. Railway, 12 Minn. 388 ; Com- monwealth 0. Bradley, 16 Gray, 241 ; Henschall v. Schmidtz, 50 Misso. 454; Walston u. Commonwealth, 16 B. Monr. 15 ; Rivers v. Cole, 38 Iowa, 677 ; Brock V. Parker, 5 Ind. 538 ; Indianapolis v. Imberry, 17 Ind. 175. " When the effect of an enactment is to take away a right, ■prima facie it does not apply to existing rights ; but, where it deals with pro- cedure only, prima facie it applies to all actions pending as well as future." Kim- bray V. Draper, Law Rep. 3 Q. B. 160, 16-3, by Blackburn, J. on the authority of Wright V. Hale, 6 H. & N. 227. 8 Bradford u. Barclay, 42 Ala. 375; Mann v. McAtee, 37 Cal. 11 ; Merwin v. BaUard, 66 N. C. 398 ; The State v. Smith, 38 Conn. 397; Simco v. The State, 8 Texas Ap. 406 ; Lee .v. Cook, 1 Wy. Ter. 413 ; Chaney v. The State, 31 Ala. 342; Mabry v. Baxter, 11 Heisk. 682. ■Wagers. — Statutes restrictive of suits on wagers are prospective only, not af- fecting transactions prior to their pas- sage. Doolubdass u. EamloU, 7 Moore P. C. 239, 15 Jur. 257, 8 Eng. L. & Eq. 39. And, generally of Bights of Ac- tion. — No statute, however broad its words, will be construed to interfere with existing rights of action, unless this in- tent is expressly stated. Berley v. Ram- pacher, 5 Duer, 183 ; Rutherford v. Greene, 2 Wheat. 196. Qualiflcations of Jurors. — A statute regulating the qualifications of jurors is applied as well to past as to subsequent offences. Reid V. The State, 20 Ga. 681. But, Costs. — In Missouri, a statute providing that, if the jury fail to declare by which party in a prosecution of a county the costs shall be paid, the court shall render judg- ment for them against the prosecutor, is held not to apply to a prosecution begun before its passage. The State v. Berry, 25 Misso. 355. Transfer of Jurisdic- tion. — Where, after the commission of a felony, the jurisdiction to punish it is transferred from one court to another, the offender, if afterward arrested, should be sent for trial to the latter court. Swing's Case, 5 Grat. 701. And see The State V. Solomons, 3 Hill, S. C. 96. * And see Tilton v. Swift, 40 Iowa, 78; Eiggins v. The State, 4 Kan. 173. Indeed, under some circumstances, it is required by the mere behests of justice to give the statute a retrospective opera- tion ; then, by construction, it will have such an operation if the words permit. Miller v. Graham, 17 Ohio State, 1. 6 1 Bishop Mar. & Div. § 99-103, 696- 699. 71 § 85 a INTEEPKETATI03Sr. [BOOK II. Liquor Laws. — A statute prohibiting the unlicensed sale of intoxicating liquors extends as well to those owned when it is enacted as to subsequent purchases.^ And one disqualifying " every person convicted of felony " to be a retailer, includes alike past and future convictions.^ So — Fencing Railroad. — A statutory mandate to railroads to fence lands taken for their track extends as well to existing as to sub- sequently chartered ones.^ § 85. Ex post Facto. — A statute which is ex post facto is ren- dered null by two clauses of the United States Constitution, the one referring to the national and the other to the State legisla- tive power.* But — Simply Retrospective. — A statute may be retrospective without being ex post facto ; and, when it is, if it does not impair the obli- gation of contracts,^ it does not violate the Constitution of the United States. In some of the State constitutions there are pro- visions directly forbidding it, but in most there are not ; ^ or, it is valid in some circumstances," and invalid in others.* In accord with what has been said,^ where such a statute is not constitu- tionally prohibited, the courts will give effect to its express terms ; i" where it is, they will hold it void.^^ Some of the dis- tinctions are that, — § 85 a. Rights vested — not vested. — According to the terms 1 Commonwealth v. Logan, 12 Gray, State v. Newark, 3 Dutcher, 185; The 136. State r. Scudder, 3 Vroom, 203 ; Hess 2 Reg, V. Vine, Law Rep. 10 Q. B. 195. v. Johnson, 3 W. Va. 645 ; Stine u. " Wilder v. Maine Central Railroad, 65 Bennett, 13 Minn. 153 ; United States v. Maine, 332. And see Gorman o. Pacific Samperyac, Hemp. 118 ; Stokes v. Rod- Railroad, 26 Misso. 441 ; Bank of Toledo man, 5 R. I. 405. V. Toledo, 1 Ohio State, 622. « Bruce v. Schuyler, 4 Gilman, 221 ; * Crim. Law, I. § 279; Const. XJ. S. Gordon c. Inghram, 1 Grant, Pa. 152; art. 1, § 9, 10 ; Calder v. Bull, 3 Dall. 386, West Branch Broom Co. v. Dodge, 7 389 ; Watson u. Mercer, 8 Pet. 88, 110 ; Casey, Pa. 285 ; Dillon v. Dougherty, 2 Bennett v. Boggs, Bald. 60, 74. Grant, Pa. 99 ; The State v. Atwood, 11 3 Reed v. Beall, 42 Missis. 274 ; Lane Wis. 422 ; Kennett's Petition, 4 Fost. V. Nelson, 29 Smith, Pa. 407. N. H. 139 ; McManning «. Farrar, 46 8 1 Bishop Mar. & Div. § 670 ; The Misso. 376. State V. Squires, 26 Iowa, 340 ; Smith o. 9 Ante, § 83 a. Van Gilder, 26 Ark. 527. ■ 10 Barton v. Morris, 15 Ohio, 408 ; New ' Crim. Law, I. § 279 ; Sedgwick v. Orleans v. Clark, 95 U. S. 644 ; People Bunker, 16 Kan. 498 ; Kunkle v. Frank- u. Ulster, 63 Barb. 83 ; Hagerstown v. lin, 13 Minn. 127 ; Comer v, Folsom, 13 Sehner, 37 Md. 180. Minn. 219 ; Wilson t'. Buckman, 13 Minn. " Bank of the State v. Cooper, 2 Yerg. 441 ; Tilton u. Swift, 40 Iowa, 78 ; The 599. 72 CHAP. X.J PROSPECTIVE AND EETROSPECTIVE. §85 6 or efPect of most or all of our constitutions, a statute cannot divest vested rights ; ' yet can take away such as are not vested.^ And, — Remedy. — At the legislative pleasure, it can change the rem- edy,^ yet not to the denial of all remedy,* or even to such a reduction of it as will leave any essential part of the right practi- cally unavailable.^ § 85 b. Directing Construction of Statute. — The legislature can- not direct the courts how to construe a statute, so as to affect past transactions ; for such construction is a judicial, not a legis- lative, question. But the direction, if in adequate terms, will operate as an amendment of the statute for cases on future facts.^ 1 Crim. Law, I. § 279; post, § 178; Burch V. Newbury, 6 Seld. 374; Peters u. Goulden, 27 Mich. 171. In England, where there are no written constitutions, a statute is not commonly construed to direst vested rights. Couch v. Jeffries, 4 Bur. 2460, 2462 ; Moore v. Phillips, 7 M. & W. 536; Gilraore v. Shuter, T. Jones, 108 ; s. 0. nom. Helmore u. Shuter, 2 Show. 16. 2 Harris v. Glenn, 56 Ga. 94 ; Eotten- berry v. Pipes, 53 Ala. 447; Leib v. Wil- son, 51 Ind. 550 ; Ware v. Owens, 42 Ala. 212 ; Coffin ■;. The State, 7 Ind. 157 ; Noel a. Ewing, 9 Ind. 37 ; Bachman u. Chrisman, 11 Harris, Pa. 162 ; People v. Frisbie, 26 Cal. 135 ; Languille v. The State, 4 Texas Ap. 312 ; Norfolk v. Cham- berlaine, 29 Grat. 534 ; Sparks v. Clapper, 30 Ind. 204. 8 Templeton v. Home, 82 HI. 491 ; Pe- tition of Penniman, 11 R. I. 333 ; Caper- ton V. Martin, 4 W. Va. 138 ; FuUerton v. McArthur, 1 Grant, Pa. 232 ; The State v. Shumpert, 1 S. C. 85 ; Brown v. Gilmor, 8 Md. 322 ; Carnes v. Red River Parish, 29 La. An. 608 ; Young v. Ledrick, 14 Kan. 92 ; Smith v. Judge, 17 Cal. 547 ; Tennessee v. Sneed, 96 U. S. 69; Harde- man V. Downer, 39 Ga. 425 ; Fearing v. Irwin, 55 N. Y. 486 ; Bacon v. Howard, 20 How. U. S. 22 ; The State v. Union, 4 Yroom, 350 ; Leggett v. Hunter, 19 N. Y. 445; Mills v. Charleton, 29 Wis. 400; Barton i>. School Commissioners, Meigs, 585. * Post, § 178 ; Seibert v. Copp, 62 Misso. 182 ; Fisher v. Cockerill, 5 T. B. Monr. 129. 5 Post, § 178 ; Holland v. Dickerson, 41 Iowa, 367 ; Josephine v. The State, 39 Missis. 613 ; Smith v. Morse, 2 Cal. 524 ; Musgrove v. Vicksburg, &o. Railroad, 50 Missis. 677 ; Morton v. Valentine, 15 La. An. 150 ; Smith v. Packard, 12 Wis. 371 ; Edwards v. Kearzey, 96 U. S. 595. 6 Dequindre u. Williams, 31 Ind. 444 ; Union Iron Co. v. Pierce, 4 Bis. 327 ; Haley v. Philadelphia, 18 Smith, Pa. 45 ; The Governor v. Porter, 5 Humph. 165 ; Kelsey v. Kendall, 48 Vt. 24 ; People v. New York, 16 N. Y. 424 ; Cambridge v. Boston, 130 Mass. 357 ; United States v, Gilmore, 8 Wal. 330. 73 § 86 INTBKPBETATION. [BOOK II. CHAPTER XI. CONSTRUING THE VAKIOUS LAWS TOGETHEE. § 86. Here — Elsewhere — (importance of Doctrine). — Having already called to mind the doctrine, in its general terms, that all laws are to be construed together as parts of one whole, ^ we shall in this chapter descend a little into detail ; presenting the chief fragmentary forms of the doctrine, and drawing its bounds. In a chapter further on,^ we shall see, through the help of lines of decisions projected through the legal field, something of the immensity of the conservative force of this doctrine in our juris- prudence, and its overwhelming importance in interpretation. Full Doctrine defined. — The completed doctrine, resulting from a bringing together of its parts, is, that all laws, written and unwritten, of whatever sorts and at whatever different dates established, are to be construed together, contracting, expanding, limiting, and extending one another into one system of jurispru- dence, as nearly harmonious and rounded as it can be made with- out violating unyielding written or unwritten terms. Some of the Parts. — The emergencies of particular cases do not, in the majority of instances, call for a consideration of the full doctrine, as thus defined. Sometimes it is only necessary to bear in mind, that all the parts of the one statute, or the enact- ing part and the preamble, or some two or more sections or clauses, are to be read and construed together ; ^ sometimes, that the original act and its amendments are to be interpreted as one, no portion of either being left inoperative, if without violence to 1 Ante, § 5-10, 82. said to be, to look into the whole and 2 Poet, § 122 et seq. every part of it, the apparent intention 8 Ante, § 82 ; Hex v. Palmer, 1 Leach, derived from the whole, tlie subject-mat- 4th ed. 352, .355 ; Holbrook v. Holbrook, ter, the effects and consequences, and its 1 Pick. 248 ; Burke v. Monroe, 77 III. 610 ; reason and spirit ; and the meaning of St, Peter's Church v. Scott, 12 Minn. .395 ; the legislature thus ascertained will pre- Crone v. The State, 49 Ind. 538. More vail, though in conflict with the literal broadly expressed. — The true rule for sense of the words. Eyegate v. Wards- the construction of a statute has been boro, 30 Vt. 746. 74 CHAP. XI.] CONSTRTJING LAWS TOGETHER. § 87 the words effect can be given to the whole ; ^ sometimes, that a subsequent statute may be looked into for help in discovering the true intent of an earlier one,^ — a doctrine to be received with caution, and limited in its application ; sometimes, that all acts passed at the same session will be construed as one ; ^ or that all passed on the same day will be ; * or, that, when a statute is made in addition to another on the same subject, without repeal- ing any part of it, both are to be considered together.^ But the cases equally admit of wider forms of expression ; as, that all acts on the same subject, termed in pari materia, including even those which are repealed, are to be interpreted together, and, as far as may be, in harmony with one another.^ It would not ordi- narily be relevant to the question in hand to take into view enactments on other subjects ; yet, should a case occur in which the relevancy was manifest, plainly this would be permissible. Illustrations of interpreting statutes together might be multiplied without end. Thus, — § 87. Term of Office. — The term of an office newly created may be derivable from the prior general law." So, — Appeal. — If a new jurisdiction is given a court from which the law provides an appeal, the right of appeal attaches to the new case.^ And, — Powers recited, then conferred. — Where an act confers powers » Harrell v. Harrell, 8 Fla. 46; Bob- 3 Ellis & E. 224; Mitchell u. Duncan, 7 bins V. Omnibus Eailroad, 32 Cal. 472; Pla. 13; Bruce v. Schuyler, 4 Oilman, GriflSn's Case, Chase Dec. 364. 221 ; Isham v. Bennington Iron Co. 19 2 McAfee v. Southern Eailroad, 36 Vt. 230; Smith «. People^ 47 N. Y. 330; Missis. 669. Forqueran v. Donnally, 7 W. Va. 114; s Cain V. The State, 20 Texas, 355 ; Bryant v. Livermore, 20 Minn. 313 ; Rex The State v. Eackley, 2 Blackf. 249. v. Palmer, supra, at p. 355; Ex parte And see Attorney-General v. Brown, 1 Copeland, 2 De G., M. & G. 914 ; McWil- "Wis. 513. liam . Schomp, 5 C. E. Green, 82; U. S. Cable Co. v. Anglo-American Tel. Garrigus v. Parke, 39 Ind. 66. Co. 2 Ap. Cas. 394, 412; Murray v. New 84 CHAP. XTTT.] MEANINGS OF LANGUAGE. § 95 § 94. Unity of Meaning. — In a book not strictly of the legal class we read : " No sentence or form of words can have more than one ' true sense ; ' and this only one we have to inquire for. This is the very basis of all interpretation. . . . Every man or body of persons, making use of words, does so in order to convey a certain meaning ; and to find this precise meaning is the object of all interpretation. To have two meanings in view is equiva- lent to having no meaning, and amounts to absurdity. . . . The fictitious law case, composed by Pope and Fortescue, as hav- ing ensued in consequence of Sir John Swale having bequeathed to his friend Mr. Straggling ' all my black and white horses,' when there were found six black horses, six white ones, and six that were black and white, or pied horses, is certainly entertain- ing. Yet the question ought never to have arisen ' whether the pied horses were included in the legacy,' as was assumed by those gentlemen. As there can be but one meaning attached to any sentence, the testator could not have meant by his words all black and all white horses, and, at the same time, all black and white horses. The only difficulty arising from this will could be this : whether the testator meant to bequeath to Mr. Straggling all black and all white horses, or all black and white horses." ^ So, applying this doctrine to a statute, — § 95. Illustrations. — If the legislature should direct the officers of a court in a particular emergency to sit or stand, the meaning could not be, that a part might sit while the rest stood ; because this interpretation would give a duplicate sense to the simple expression. Or if the provision was, that no fees be taken for executing a mandamus or a capias, the meaning could not be to forbid fees for one, to be elected, not for the other ; since here also, to work this result, a duplicate signification must be drawn from one compact form of language. There can be no doubt of the soundness of this doctrine when applied to such a writing as a statute. And, — Further of Doctrine. — If one says that his time and money are valuable, he cannot mean that his money is valuable in a serious sense, and his time ironically so ; though he may intend to be understood either as serious or as ironical in the entire expres- sion. Still there are_ writings, — as, for example, compositions 1 Lieber Legal and Political Herme- Layman, 8 Blackf . 330 ; Keg. t. Hamil- ueutios, p. 86-88. And see The State v. ton, 1 Car. & K. 212. 85 § 95 a INTEEPRETATION. [BOOK n. in poetry or prose intended to instruct or amuse by way of sug- gestion rather than exact delineation or precept, — the eflScacy of which consists in giving various and perhaps conflicting mean- ings to a single sentence, or even a single word, where the reader is to accept all the meanings, or as many of them as he has capacity for, or to choose between them. § 95 a. Same Word in same Statute, &o. — In a SOrt of general way it is sometimes worth considering, that, if a particular word occurs repeatedly in a statute, or in different statutes on the same subject, the meaning may, prima facie, be deemed identical in all the places. This doctrine is occasionally expressed in even stronger terms.^ The presumption is in no form held to be con- clusive,^ and the fact is sometimes very palpably otherwise.^ Even the same word in a single sentence creating an offence has been adjudged to have different meanings in different parts of the sentence.* Of course, the rule is not applicable to statutes on different subjects ; the subjects will govern the meanings, and they may be very different.^ Vattel, writing of treaties, states what is believed to be equally sound in statutory interpretation. "If," he says, " any one of those expressions which are sus- ceptible of different significations occurs more than once in the same piece, we cannot make it a rule to take it everywhere in the same signification. For we must take such expression, in each article, according as the subject requires, — pro substrata materia, as the masters of the art say. The word day, for in- stance, has two significations. If therefore it be said in a con- vention, that there shall be a truce of fifty days, on condition that commissioners from both parties shall, during eight succes- sive days, jointly endeavor to adjust the dispute, — the fifty days of the truce are civil days of twenty-four hours ; but it would be absurd to understand them in the same sense in the second 1 Courtauld v. Legh, Law Rep. 4 Ex. ^ Texas v. White, 7 Wal. 700 ; Feagin 126, 130 ; James v. Dubois, 1 Harrison, v. Comptroller, 42 Ala. 516, 522 ; Rupp 285 ; Commonwealth v. Morrison, 2 A. v. Swineford, 40 Wis. 28 ; Reg. v. Kent, 2 K. Mar. 75, 82 ; Pitte v. Shipley, 46 Cal. Q. B. 686, 692. 154. Subsequent on same Subject.— 3 Angell v. Angell, 9 Q. B. 328, 356. Where, in a subsequent statute on the < Reg. v. Allen, Law Rep. 1 C. C. 367, same subject, the legislature uses differ- 371, 373. ent language In the same connection, an 6 post, § 98 a ; East India Interest, 3 intended change of the law may be pre- Bing. 193, 196 ; River Wear Commission- sumed. Lehman c. Robinson, 59 Ala. ers v. Adamson, 2 Ap. Cas. 743, 763; 219; Rich !). Keyser, 4 Smith, Pa. 86. JoUiffie v. Rice, 6 C. B. 1 9- Rupp v 86 CHAP. XIII.] MEANINGS OF LANGUAGE. § 97 article, and to pretend that the commissioners should labor eight days and nights without intermission." ^ § 96. Legal Meaning. — A statute being a law,^ words in it which have acquired a particular legal meaning are, in the ab- sence of circumstances otherwise controlling them,^ given this meaning in the interpretation.* Frequent illustrations of this doctrine occur in cases of — § 97. Re-enacted Statutes, Phrases, and Words. — If, therefore, a statute employs terms or modes of expression which had acquired a definite signification in previous enactments on the same or some analogous subject, the established interpretation will, in the absence of any special indication to the contrary, prevail.^ And it is the same where an entire statute, having received a judicial interpretation, expires or is repealed, and is afterward re-enacted in the same language : here the legislature, being presumed to know the prior law,^ is presumed to have adopted the meaning already given it by the courts.'' But, — Adopted from other State or Country. — Where the adopted pro- vision is, with its construction, foreign, one of the elements of the problem is difPerent. The courts do not know the laws of other States and countries except when proved to them ; ® neither, a fortiori, does the legislature. Yet they know the laws of England prior to the settlement of this country, and perhaps to some extent the later ones ; and under statutes those of sister Swineford, supra ; Feagin w. Comptroller, Eq. 84; County Seat of Linn, 15 Kan. supra; Caldwell's Case, 19 Wal. 264; 500 ; The State w. Brewer, 22 La. An. 273 ; Jones V. Dexter, 8 Fla. 276. Woolsey v. Cade, 54 Ala. 378. 1 Vattel Law of Nations, b. 2, c. 17, " Ante, § 74, 75. § 281. 1 Myriok v. Hasey, 27 Maine, 9 ; Ruck- 2 Ante, § 7, 11 a. maboye v. Mottichund, supra ; Mansell 8 Post, § 2Q4. V. Reg. 8 Ellis & B. 54, 73 ; Bank of « Apple V. Apple, 1 Head, 348 ; Ste- Mobile v. Meagher, 33 Ala. 622 ; La phenson v. Higginson, 3 H. L. .Cas. 638 ; Selle v. Whitfield, 12 La. An. 81 ; Ex The State v. Mace, 5 Md. 337 ; Mer- parte Matthews, 52 Ala. 51 ; Tuxbury's chants' Bank v. Cook, 4 Pick. 405; Adams Appeal, 67 Maine, 267 ; O'Byrnes v. The V. Turrentine, 8 Ire. 147 ; United States State, 51 Ala. 25 ; Cota v. Ross, 66 Maine, V. Magill, 1 Wash. C. O. 463 ; Ex parte 161. Said Woodbury, J. in the Supreme Vincent, 26 Ala. 145; post, § 242. Court of the United States : " With the 6 The Abbotsford, 98 U. S. 440 United States o. Gilmore, 8 Wal. 330 Williams v. Lear, Law Rep. 7 Q. B. 285 knowledge of our construction, like words being again repeated by Congress, it may be considered that a like construction Whitcomb v. Rood, 20 Vt. 49; United was intended, and was expected to be States V. Wilson, Bald. 78, 95 ; Sheppard giren to those words." Mason v. Fear- V. Gosnold, Vaugh. 159 ; MoKee v. Mc- son, 9 How. U. S. 248, 258. Kee, 17 Md. 352; Ruckmaboye v. Mot » 1 Bishop Mar. & Div. § 413, 415, liohund, 8 Moore P. C. 4, 32 Eng. L. & 418. 87 § 98 INTEEPRBTATION. [BOOK H. States are generally provable by simple methods.^ When, there- fore, a statutory provision is adopted from another State or coun- try, the following of the foreign construction may, in reason, be presumably intended in some circumstances, not so absolutely in others. In the adjudications on this question, no nice distinc- tions have been drawn ; but, in a general way, it is held that a word, phrase, or statutory provision, adopted from the laws of an- other State,2 or from England,^ or even from the civil law,* wiU ordinarily receive the construction it had in the law whence it was taken.^ Yet it is deemed also that the foreign exposition is not conclusive,^ or in so high a degree controlling as the domestic' Thus, for example, a prior interpretation from another State will not be followed when antagonistic to,^ or further than harmonious with,^ our own laws and judicial usages. In like manner, — Constitution. — In pursuance of the presumed intent of the makers, a constitutional provision, adopted from another State after it had been judicially interpreted, will, in the absence of any contrary indication, retain the meaning thus previously ascertained.^'' § 98. Revisions and Codifications. — Where statutes are " re- vised," as is common in our States, to render them more con- venient and plain, the Revision is to receive the interpretation which had been given to the old laws, except where the contrary intention affirmatively appears. One of the objects having been ' lb. § 414-417, 422, 423-425. ^ pigher v. Deering, 60 III. 114; Clark 2 Eigg V. VPilton, 13 III. 15 ; The State v. Jefeersonyille, &c. Railroad, 44 Ind. 248 ; V. Rowley, 12 Conn. 101 ; McKenzie v. Fall v. Hazelrigg, 45 Ind. 576 ; Pangborn The State, 6 Eng. 594 ; Cambell v. Quin- v. Westlake, 36 Iowa, 546 ; Harrison v. lin, 3 Scam. 288 ; Draper v. Emerson, 22 Sager, 27 Mich. 476 ; Greiner v. Klein, 28 Wis. 147 ; Drennan v. People, 10 Mich. Mich. 12, 22 ; Daniels v. Clegg, 28 Mich. 169 ; Bemis „■. Becker, 1 Kan. 226 ; The 32 ; Poertner v. Eussel, ^3 Wis. 193 ; State V. Swope, 7 Ind. 91 ; The State v. Hobbs v. Memphis, &e. Railroad, 9 Heisk. Macon County Court, 41 Misso. 453 ; 873 ; Anderson v. May, 10 Heisk. 84. Westcott V. Miller, 42 Wis. 454 ; Kilkelly « Snoddy v. Cage, 5 Texas, 106. V. The State, 43 Wis. 604. 7 Rigg v. Wilton, 13 111. 15 ; Ingraham 8 McCartee v. Orphan Asylum Soci- v. Regan, 23 Missis. 213. ety, 9 Cow. 437 ; Kennedy v. Kennedy, 8 Cole v. People, 84 111. 216. 2 Ala. 571 ; McKenzie v. The State, 6 9 Jamison v. Burton, 43 Iowa, 282 ; Eng. 594 ; Commonwealth v. Hartnett, 3 Freese v. Tripp, 70 III. 496 ; Gage v. Gray, 450; Pennock v. Dialogue, 2 Pet. Smith, 79 111. 219. 1 ; Tyler v. Tyler, 19 111. 151 ; Adams v. w People v. Coleman, 4 Cal. 46 ; Attor- Field, 21 Vt. 256 ; Marqueze v. Caldwell, uey-General v. Brunst, 3 Wis. 787 ; Hess 48 Missis. 23 ; McCool v. Smith, 1 Black, v. Pegg, 7 Nev. 23 ; Leavenworth v. Mil- 459. ler, 7 Kan. 479; Walker v. Cincinnati, 21 < United States v. Jones, 3 Wash. C. C. Ohio State, 14 ; Daily v. Swope 47 Missis. 209, 215. 367. CHAP, xin.] MEANINGS OF LANGUAGE. §99 to improve and make uniform the phraseology, slight changes of language will not work changes of meaning.^ Still, where the language in its new forms is distinct, it wUl be given its due effect. The old, which it supersedes, cannot vary it ; though, in a doubt- ful case, it may help in opening its import.^ So likewise a pas- sage in the revision will alter the law if otherwise it would be inoperative.^ And where for any other reason this consequence was plainly meant, the courts will depart from the old inter- pretation.* § 98 a. The Subject. — In the course of the foregoing illus- trations, the leading rule whence chiefly proceed the results is stated ; namely, that the meanings will vary with the subject.® This is a canon also in the interpretation of contracts : the sub- ject of which they speak must be taken into the account.^ It applies likewise to treaties,' and to all other forms of written and spoken language. Those who in any way use words mean one thing or another according to the subject in contemplation. Now, — § 99. Technical, but not Legal. — Looking to the subject for the J Hughes V. Parrar, 45 Maine, 72 ; Parramore v. Taylor, 11 Grat. 220, 242 ; Duramus v. Harrison, 26 Ala. 326 ; Mooers v. Bunker, 9 Post. N. H. 420; Conger v. Earlier, 11 Ohio State, 1 ; Peo- ple V. Deming, 1 Hilton, 271 ; Overfield V. Sutton, 1 Met. Ky. 621 ; Allen v. Eam- sey, 1 Met. Ky. 635 ; Theriat v. Hart, 2 Hill, N. Y. 380; In re Brown, 21 Wend. 316 ; Lee v. Porman, 3 Met. Ky. 114 ; Anthony v. The State, 29 Ala. 27 : Glass V. The State, 30 Ala. 529, 531 ; Fosdick V. Perrysburg, 14 Ohio State, 472 ; Cros- well V. Crane, 7 Barb. 191 ; Dominick v. Michael, 4 Sandf. 374; Smith v. Smith, 19 Wis. 622 ; Douglas v. Douglas, 5 Hun, 140. = Ante, § 82 ; United States v. Bowen, 100 U. S. 508 ; Coffin v. Rich, 45 Maine, 507. » Burnham v. Stevens, 33 N. H. 247. And see The Magellan Pirates, 18 Jur. 13, 25 Eng. L. & Eq. 595. « Eich V. Keyser, 4 Smith, Pa. 86; Douglas V. Douglas, 5 Hun, 140 ; Lehman V. Eobinson, 59 Ala. 219 ; The State v. Clark, 57 Misso. 25. Faxticular He- visions. — For decisions on particular re- visions and codes and their construction, see United States v. Bowen, 100 U. S. 508 ; In re Oregon Bulletin Printing, &c. Co. 14 Bankr. Eeg. 406, 3 Saw. 614 ; Ex parte Ray, 45 Ala. 15 ; O'Neal v. Eobin- son, 45 Ala. 526 ; Barker v. Bell, 46 Ala. 216 ; Mobile, &c. Railroad o. Malone, 46 Ala. 391 ; Vinsant v. Knox, 27 Ark. 266; Whitehead v. Wells, 29 Ark. 99; Battle v. Shivers, 39 Ga. 405 ; Inman v. The State, 64 Ga. 219 ; Ballin v. Ferst, 55 Ga. 646 ; Gray v. Mount, 45 Iowa, 691 ; Burgess V. Memphis, &c. Eailroad, 18 Kan. 63 ; Broaddus v. Broaddus, 10 Bush, 299; Sellers v. Commonwealth, 18 Bush, 331 ; The State v. Popp, 45 Md. 432 ; St. Louis V. Poster, 52 Misso. 613 ; Middleton v. New Jersey West Line Eailroad, 11 C. E. Green, 269; Seheftels v. Tabert, 46 Wis. 439. And see post, § 160, note. 5 Ante, § 93, 96 a ; Eex v. Hall, 1 B. & C. 123, 136 ; The Lion, Law Eep. 2 P. C. 626, 630. 6 Bishop Con. § 586. ' Vattel Law of Nations, b. 2, o. 17, § 280, 296. 89 § 100 INTEEPRETATION. [BOOK H. meaning,' if a statute employs a word which, though not legal, is technical to its subject, we give it the technical sense, — not the general sense, not one technical to another subject, — unless something appears indicating a different intent of the legislature.^ Thus, — Commercial Meaning — Revenue Laws, &c. — An act relating to commerce is interpreted by the vocabulary of merchants, not of mechanics.^ And words in revenue laws are construed accord- ing to the usages of trade ; * as, if " bohea tea " is mentioned, it means the article known in trade as such, not in science ; ^ and " loaf sugar " in these laws signifies sugar in loaves, not crushed sugar ; such being the use of the words in trade and commerce.^ But — § 100. Exceptions. — The technical sense will not be applied to defeat the purpose of a statute, or violate its obvious signifi- cation. Thus, — Credit to Student. — A statute in Connecticut forbade the giy- ing of credit, except on certain conditions, to " any student of Yale College, being a minor." And the word " student " was held to include one not matriculated, or admitted to regular membership ; matriculation taking place only after a residence of six months, and evidence of unblemished moral character.^ Whether this had occurred in a particular instance could not ordinarily be known to persons asked for credit ; making it plain that the popular meaning, which takes cognizance simply of the apparent relation of the student to the college, was intended. Moreover, this statute was penal ; yet — In Penal Statute. — It has been deemed that, where technical 1 Ante, § 98 a. 159. " Tenpins." — And see, as to the 2 The State v. Smith, 5 Humph. 394 ; word " tenpins," The State v. Gupton, 8 Burton «. Reevell, 16 M. & W. 307, 309. Ire. 271. And see Caldwell's Case, 19 Wal. 264. ' Morse v. The State, 6 Conn. 9. See 8 United States v. Sarchet, Gilpin, 273. also United States v. Gooding, 12 Wheat. < Elliott V. Swartwout, 20 Pet. 137, 460, 467 ; United States v. Twenty-Four 151; Lee v. Lincoln, 1 Story, 610 ; United Coils of Cordage, Bald. 502, 505 ; Jesson States V. One Hundred and Twelve Casks v. Wright, 2 Bligh, 1, 57 ; Winter v. Per- of Sugar, 8 Pet. 277 ; Bacon v. Bancroft, ratt, 6 Man. & G. 314, 379 ; Common- 1 Story, 341 ; Lawrence v. Allen, 7 How. wealth v. Buzzell, 16 Pick. 153, 161 ; U.S. 785; Curtisw.Martin, 3How. U. S. Waring i-. Clarke, 5 How. XJ. S. 441; 106. post, § 242 a. " Purporting." — As to 6 Two Hundred Chests of Tea, 9 the word " purporting," see The State v. Wheat. 430. Harris, 5 Ire. 287; The State u. Page, 19 « United States u. Breed, 1 Sumner, Misso. 213. 90 CHAP. XIII.J MEANINGS OP LANGUAGE. § 102 words are sought to be expanded into the larger popular signifi- cation in a penal statute, such intent of the legislature must plainly appear. ^ § 101. Not Technical — Popular Meanings. — The language o£ our statutes is, in the greater part, not technical in either sense above explained, but popular ; to be understood, therefore, in its com- mon, popular meanings.^ In the absence of any other legislative purpose appearing,^ it should be read as written,* and all its words should be contemplated together with reference to the connection in which they stand, and the subject to which they relate.^ Yet, — Local Meaning. — As a general statute speaks the language of the entire people, it cannot have a local meaning, or vary in par- ticular places with the special usages there prevailing.® § 102. Larger or Restricted Meanings. — Within the differing limits recognized by common usage, the words of statutes may be extended or contracted in their meanings, like those of any other writings, according as the various expanding and compressing forces of the particular rules of interpretation applicable to the individual instance, and its special reasons and circumstances, indicate. Thus, — Language general, Reason special. — Kent mentions, that, " when the expression in a statute is special or particular, but the reason is general, the expression should be deemed general." ^ On the other hand, — " All." — The word " all " is often restrained in meaning by its context, or by the general object of the provision.^ And — 1 Stephenson v. Higginson, 3 H. L. v. The State, 4 Texas Ap. 599 ; Philpoti Cas. 638, 18 Eng. L. & Eq. 50. v. St. George's Hospital, 6 H. L. Cas. 2 Dwar. Stat 2d ed. 573 ; The State v. 388. Blythe, 3 McCord, 363; Maoy v. Ray- s Ante, § 70, 82. mond, 9 Pick. 285 ; Allen v. Harford In- * Ante, § 80. gurance Co. 2 Md. Ill ; Rex v. Wool- 5 Ex parte Hall, 1 Pick. 261 ; Opinion dridge, 1 Leach, 4th ed. 307 ; Barker v. of the Justices, 7 Mass. 523. The State, 12 Texas, 273 ; The State v. 6 Rex v. Hogg, 1 T. R. 721, 728. See Clarksville and R. T. P. Co. 2 Sneed, 88 ; post, § 104. Fayers v. Glass, 22 Ala. 621 ; Gross v. '1 Kent Com. 462, referring to Be- Fowler, 21 Cat. 392 ; Green v. Weller, 32 awfage's Case, 10 Co. 99 6, lOl b. See Missis. 650 ; Quigley v. Gorham, 5 Cal. also Williams v. McDonal, 4 Chand. 65. 418 ; Wetumpka v. Winter, 29 Ala. 651 ; » Phillips v. The State, 15 Ga. 518 ; Schriefer i. Wood, 5 Blatch. 215 ; Phlla- People v. Gies, 25 Mich. 83; Dano v. delphia and Erie Railroad v. Catawissa M. 0. and R. R. Railroad, 27 Ark. Railroad, 3 Smith, Pa. 20; Enckeling v. 564. Von Wamel, 26 Texas, 469 ; McGregor 91 § 103 INTERPRETATION. [BOOK H. " Property." — The word " property " may extend to real estate, the same as to personal.^ Yet in Yarious connections it does not.2 But — Common Meaning. — Ordinarily the language is to be understood in its common signification ; as, for instance, general terms are to receive their general, not restricted, sense.'^ § 103. Including or excluding State. — A gOTcrnment, making laws for its subjects, will not be presumed to be binding itself by them, unless this intent affirmatively appears. Therefore, in England, while an act of Parliament may by express words or even by distinct implication include the Crown, general terms in it, such as bind the subject, will not alone have this effect; except in special cases, wherein the reason and policy of the law extend equally to both. Such is believed to be the exact Eng- lish rule, yet it is not in every particular quite palpable on the mere face of the adjudications.* So, with us, the State is not bound by general statutory provisions whereby any of its preroga- tives, rights, titles, or interests would be impaired, unless by express words.^ For example, — Discharge in Bankruptcy. — A discharge in bankruptcy under a statute which authorizes the government to prove its demands against the bankrupt, and declares the discharge to be a release "from all debts, claims, liabilities and demands which were or might have been proved," and " a full and complete bar to all suits brought on any such debts, claims, habilities, or demands," is of no avail against a suit by the government.^ Again, — ^ DeWitt V. San Francisco, 2 Cal. 289; v. Smith, 5 Jur. n. s. 892 ; Mersey Docks, 2 Bishop Mar. Women, § 75. v. Cameron, 11 H. L. Cas. 443; Reg. v. 2 People V. New York, &c. Railway, York, 14 Q. B. 81 ; Eeg. ». St. Martins, 84 N. Y. 565. And see 2 Bishop Mar. Law Rep. 2 Q. B. 493 ; Reg. i . McCann, "Women, § 75-77 ; Palfrey ... Boston, 101 Law Rep. 3 Q. B. 141, 677; Greig v. Uni- Mass. 329. Tersity of Edinburgh, Law Rep. 1 H. L. 3 Jones V. Jones, 18 Maine, 308. And Sc. 348, 350 ; Rex v. Cook, 8 T. R. 519, see Alexander v. Worthington, 5 Md. 471 ; 521 ; Commonwealth v. Boston and Maine Bartlett v. Morris, 9 Port. 266. Railroad, 3 Cush. 25 ; United States v. * Attorney-General v. Donaldson, 10 Weise, 2 Wal. Jr. 72 ; Public Schools v. M. & W. 117, 123, 124; Ex parte Exeter, Trenton, 3 Stew. Ch. 667, 683. 10 C. B. 102 ; Willion v. Berkley, 1 Plow. ^ xhe State v. Kinne, 41 N. H. 238 ; 223, 235-288, 240, 248 ; Magdalen College Bennett v. Mc^V^lorter, 2 W. Va. 441 ; Case, 11 Co. 66 6, 73 a, 74 6, 75 a; Case Cole v. White, 32 Ark. 45; Oilman .-. of Non Obstante, 12 Co. 18 ; Case of Sheboygan, 2 Black, 510 ; Alexander u. Fine, 7 Co. 32 a ; Reg. v. Tuchin, 2 Ld. The State, 56 Ga. 478. Raym. lOfil ; Crooke's Case, 1 Show. 208 ; 6 United States r. Herron, 20 Wal. 251 ; Rex V. Wright, 1 A. & E. 434, 437, 447 ; s. p. Public Schools v. Trenton, 3 Stew. DeEodei). Reg. 13Q. B. 364, 378; Moore Ch. 667, 685, referring to Anonymous, 92 CHAP. XIII.] MEANINGS OF LANGUAGE. § 104 Statutes of Limitations — do not run against the State or United States, unless by express words.^ And — Presvimption of Payment. — Lapse of time does not create the presumption of the payment of a debt due to the government.^ On the other hand, — Government bound. — Statutes establishing general rules of pro- cedure in civil actions,^ or providing for the promotion of learn- ing, the advancement of religion, and the support of the poor,* bind the State though not named. Suing state. — A State cannot be sued in its own courts except by its consent.® Statutes giving consent, being in derogation of a sovereign right, are to be strictly construed.^ And, — Limitations. — In a suit of this sort, the State may plead the statute of limitations.' § 103 a. Municipal Corporations. — The reasons of the rule of construction, that statutes in general words do not bind the State, would seem not in general to extend it to municipal corporations. And commonly with us it is not so extended;^ but in some States it is.^ There are various considerations connected with different aspects of this question, not best to be entered into here.^" § 104. Contemporaneous Interpretation. — An interpretation given by the sages of the law, when a statute was passed, or soon after, is much regarded by the courts.^^ They are specially 1 Atk. 262 ; United States v. Wilson, 8 « Gladney v. Deavors, 11 Ga. 79. And Wheat. 253; Glenn U.Humphreys, 4 Wash, see Commonwealth o. Boston, &c. Kail- C. C. 424 ; People v. Kossiter, 4 Cow. 143. road, 3 Gush. 25. 1 Lambert v. Taylor, 4 B. & C. 188, ^ Troy, &e. Railroad u. Commonwealth, 152; Lindsey «. Miller, 6 Pet. 666, 673; 127 Mass. 43. People V. Gilbert, 18 Johns. 227 ; The 6 Rose v. The Governor, 24 Texas, 496. State V. Kinne, 41 N. H. 238; The State But see The State v. Curran, 7 Eng. 321. V. Garland, 7 Ire. 48 ; United States v. As to Nebraska, see The State v. Stout, 7 Williams, 5 McLean, 133 ; The State v. Neb. 89. Fleming, 19 Misso. 607 ; Brinsfield v. ' Baxter v. The State, 10 Wis. 454. Carter, 2 Kelly, 143 ; McKeehan v. Com- 8 Wheeling -o. Campbell, 12 W. Va. monwealth, 3 Barr, 151 ; ' United States 36 ; Cincinnati v. First Presbyterian V. Davis, 3 McLean, 483; United States Church, 8 Ohio, 298; Lane v. Kennedy, V. Hoar, 2 Mason, 311 ; Ware v. Greene, 13 Ohio State, 42 ; Cincinnati v. Evans, 5 37 Ala. 494 ; Walls v. McGee, 4 Harring. Ohio State, 494 ; St. Charles v. Powell, Del. 108 ; United States v. White, 2 Hill, 22 Misso. 525. N. Y. 59 ; post, § 142, note. ' Cole v. Wliite, 32 Ark. 45. 2 United States v. Williams, 5 McLean, i" And see Kellogg v. Decatur, 38 Iowa, 133. Laches of Agent. — The rights of 524 ; Brown v. Painter, 44 Iowa, 368. a State are not lost by the laches of its " Sedgw. Stat. Law, 251 ; Reg. v. Cut- agents. Haehnlen o. Commonwealth, 1 bush. Law Rep. 2 Q. B. 379 ; Fall v. Harris, Pa. 617. Hazelrigg, 45 Ind. 576. But compare 3 Green v. United States, 9 Wal. 655. with ante, § 74-77. 93 §104 INTERPRETATION. [book II. inclined to, follow it where rights of property have been acquired in reliance thereon.^ Even, under limitations explained in pre- vious discussions,^ a contemporaneous exposition by the legisla- ture has weight, and it is sometimes high evidence of the sense intended.^ Nothing of the sort just recited has, like a decision from the highest court authorized to construe the statute, the force which is technically termed authority.* Again, — Extrajudicial Usage. — The usage of the departments and officers of the government under a statute within their special cognizance, especially when long, and uniformly acquiesced in, has almost controlling force with the courts.^ So, — Judicial Usage — (Constitutionality of Statute). — In the absence of express adjudication, the usage of the courts will have weight.® For " though," said Lord Kenyon, C. J., " where the words of an act of Parliament are plain, it cannot be repealed by non-user, yet, where there has been a series of practice, without any excep- tion, it goes a great way to explain them where there is any ambiguity." '' Therefore, also, if for a long time a statute has been acted on by the courts, a strong presumption of its consti- 1 In re Warfield, 22 Cal. 51. Where an old statute has received an early prac- tical construction, which, if the question were res integrn, it might be difficult to maintain, it will be adhered to, particu- larly when great mischief would follow a contrary interpretation. Rogers v. Good- win, 2 Mass. 475 ; Packard v. Richardson, 17 Mass, 122, 144; Opinion of the Jus- tices, 3 Pick. 617. If the true construc- tion is doubtful, one long acted upon by the inferior courts will be regarded by the superior. Plummer v. Plummer, 37 Missis. 185. But where it is not doubtful, it cannot be aided in this way. Bailey v. Rolfe, 16 N. H. 247. 2 Ante, § 75-77. 8 Philadelphia and Erie Railroad v. Catawissa Railroad, 8 Smith, Pa. 20. See United States u. Gilmore, 8 Wal. 330; Byrd v. The State, 57 Missis. 243 ; United States V. Freeman, 3 How. U. S. 656. ♦ Aikin v. Western Railroad, 20 N. Y. 370 ; Dunbar v. Roxburghe, 3 CI. & P. 335 ; ante, § 76. 5 Ante, § 35, note ; United States !>. Gilmore, supra; Scanlan v. Childs, 33 94 Wis. 663 ; Hahn v. United States, 14 Ct. of CI. 305 ; Swift Courtney, &c. Co. v. United States, 14 Ct. of CI. 481 ; Union Ins. Co. u. Hoge, 21 How. U. S. 35; United States V. Lytle, 5 McLean, 9; Chesnut v. Shane. 16 Ohio, 699, 607. And see The State V. Severance, 49 Misso. 401. 8 McKeen v. Delancy, 5 Cranch, 22; Morrison v. Barksdale, Harper, 101 ; Rogers v. Goodwin, 2 Mass. 475; Pack- ard V. Richardson, 17 Mass. 122, 144 ; At- torney-General V. Bank of Cape Fear, 5 Ire. Eq. 71 ; Bailey v. Rolfe, 16 N. H. 247 ; Kernion a. Hills, 1 La. An. 419 ; Plum- mer V. Plummer, 37 Missis. 185 ; Wetmore V. The State, 55 Ala. 198. ' Leigh V. Kent, 3 T. R. 362, 364; see ante, § 91. Proving Professional Usage. — One is not entitled to examine, before the judge, lawyers to prove what has been the professional usage under a stat- ute. " The judge might, had he chosen," said Carpenter, J., "have called to his aid the wisdom and experience of emi- nent counsel, but he was not bound to do it, and his refusal to do so is not errone- ous." Gaylor's Appeal, 43 Conn. 82, 84. CHAP. XIII.] MEANINGS OF LANGUAGE. § 104 a tutionality arises,^ — not conclusive, for still they may adjudge it void.^ Expounding by Usage. — Though the words in a general statute cannot have a local meaning,^ they may, when doubtful, be expounded with reference to a general usage ; and words in a statute applicable to a particular place only, may be construed by the usage there.* § 104 a. Stare Decisis. — The doctrine of stare decisis prevails in the interpretation of statutes ^ as in the other departments of the law.^ A single decision should be followed unless clearly wrong. And a series of decisions not just in themselves may bind where one would not.'' The courts will be particularly dis- inclined to reverse a construction which has established a rule of property, thus endangering vested rights.^ And a practice which has grown out of the construction of a statute will be somewhat tenaciously adhered to.^ But, where no reasons like those which control these cases interpose, former adjudications will be more readily overruled.'" 1 The State v. Bosworth, 13 Vt. 402. 320; Eeg. v. Chantrell, supra; People i>. ' Baltimore v. The State, 15 Md. 376. Albertson, 55 N. Y. 50, 64. And see Van 8 Ante, § 101. Loon v. Lyon, 4 Daly, 149 ; Kentucky v. ' Love V. Hinctley, 1 Abb. Adm. 436. Ohio, 24 How. U. S. 66. See Delaplane v. Crenshaw, 15 Grat. 457. ^ jn rg Warfleld, 22 Cal. 61 ; Day v. ^ Reg. V. Chantrell, Law Rep. 10 Q. B. Munson, 14 Ohio State, 488 ; Aicard v. 587, 589, 590 ; Kentucky v. Ohio, 24 How. Daly, 7 La. An. 612 ; Farmer v. Fletcher, TJ. S. 66, 98 ; The State v. Thompson, 10 11 La. An. 142. La. An. 122 ; New Orleans v. Poutz, 14 ^ Succession of Lauve, 6 La. An. 529. La. An. 853 ; "Waldo v. Bell, 13 La. An. And see Wolf v. Lowry, 10 La. An. 272. 329. w Crim. Law, ut sup. And see Green- • Crim. Law, I § 93-98. castle Southern Turnpike, 28 Ind. 382 ; ' Commonwealth v. Miller, 5 Dana, Miller v. Marigny, 10 La. An. 338. 95 § 105 INTEEPEETATION. [BOOK H. CHAPTER XIV. THE COMPUTATION OF TIME IN STATUTES. § 104 h. Compared with other Writings. — As in other respects,^ SO in the computation of time, statutes and other writings are expounded by similar rules. The universal rule, requiring all utterances, whether written or oral, to be interpreted by the sub- ject which the speaker was contemplating,^ produces some appar- ent differences, and not impossibly there may be others more nearly real. Bat in the main, and in essence, time is computed alike in the several departments of the law. § 105. Month. — A calendar month is reckoned by the calen- dar, and differs in the number of days according to the particular month in question.^ A lunar month in the law is, not the scien- tific, but the popular one, of twenty-eight days ; * the fractions of a day not being taken into the account.^ In a statute, the word " month " will be interpreted either as the one or the other, ac- cording to the circumstances, or the opinions of the particular tribunal. In the old English law, established when the calendar was not as well settled as now, and computations by lunar months were not unknown in actual affairs,® it became established that ordinarily, and prima facie, the word "month " in a statute sig- nified the lunar one of twenty-eight days.'^ And this rule re- mained unchanged 8 down to 1850, when for future cases it was » Ante, § 4. 1 Stra. 446 ; Titus . West Riding of Yorkshire, 4 192. B. & Ad. 685, 690. 2 Kane v. Commonwealth, 8 Norris, 5 Zouch v. Empsey, 4 B. & Aid. 522 ; Pa. 522. See The State v. Holliday, 61 Reg. v. Shropshire, 8 A. & E. 173 ; Misso. 229 ; The State o. Holliday, 61 Mitchell v. Foster, 12 A. & E. 472 ; Reg. Misso. 400. „. Aberdare Canal, 14 Q, B. 854, 867, 868. s Hyde v. White, 24 Texas, 127, Rob- In Young v. Higgon, 6 M. & W. 49, the erts, J. observing : " Whether it be held statutory expression was " at least one cal- that the word ' day ' is twenty-four hours endar month," and the like construction from the moment of adjournment, and was put upon it, the court not even men- used as a measure of time, allowed the tioningtlie words "at least," though they Governor to consider of and act on the may have been in the judicial mind. See bill, or is an entire day regarded as an also Reg. o. St. Mary, Warwick, 1 Ellis intervening point of time between the & B. 816 ; Freeman v. Read, 4 B. & S. day of presentation and the day of the ad- 174. journment, this case does not require us ' The State v. Gasconade, 33 Misso. to decide. One or the other construction 102. must be adopted." p. 145. 100 CHAP. XIV.] COMPUTATION OF TIME. § ll\a>; "Before." — In Texas, the expression "five days before the return day " was held to mean five " clear " days.^ "Prom and after." — The effect of these words has already been considered.^ § 110 a. Months unequal in Length. — In computing time by calendar months, which are of unequal length, the month in which it begins, rather than that in which it ends, or any inter- mediate one, ordinarily furnishes the rule ; as, for example, from the fifteenth day of March to the fifteenth day of April, a period of thirty-one days, is one calendar month, and from the fifteenth of April to the fifteenth of May, a period of thirty days, is one calendar month.^ But while so much is reasonably plain, em- barrassing questions, not in all particulars adjudicated, arise. Assuming, as established, that a month beginning on the fifteenth of January ends on the fifteenth of February, when does one end which begins on the thirtieth of January ? Where twenty-eight days in February alone constitute a full calendar month, plainly, in reason, the thirty-first of January and the first and second of March need not all be added. Though this absurdity cannot be involved in the true answer to the question, there is no possible answer which does not present something not apparently quite right. It is submitted, therefore, as the best solution attainable, that, when February has twenty-eight days, a calendar month beginning the twenty-ninth, the thirtieth, or the thirty-first of January, ends, equally in each instance, on the twenty-eighth, or last day, of February.* 1 O'Connor v. Towns, 1 Texas, 107. day ; namely, the 28th of February ; or, 2 Ante, § 31 a ; Goode v. Webb, 52 in leap year, on the 29th. ... It is no Ala. 452 ; Wood v. Commonwealth, 11 doubt true that the law applicable to Bush, 220 ; Bemis v. Leonard, 118 Mass. bills of exchange depends upon the usage 502 ; Menges v. Prick, 23 Smith, Pa. 137. of merchants, and is not necessarily ap- ' Freeman v. Read, 4 B. & S. 174 ; plicable to other cases ; but, where the People V. Ulrich, 2 Abb. Pr. 28 ; Webb v. question is what is the true meaning of Pairmaner, 3 M. & W. 473 ; Migotti v. ' one calendar mouth ? ' it is useful to con- Colvill, 4 C. P. D. 233, 235 ; s. c. nom. sider how such an expression is regarded Nigotti V. Colville, 14 Cox C. C. 305. in any case in which it is constantly used * Indeed, this may be deemed estab- in familiar legal instruments." Denman, lished by analogy. " In the case of bills J. in Migotti v. Colvill, supra, at p. 236. of exchange, in which the word month is In this case it was held, that a sentence held to mean ' calendar month,' it is laid on the 31st of October to one month's down by all the text writers that bills at imprisonment expires on the last moment one month drawn on the 28th, 29th, 30th, of the last day, being the 30th, of No- or Slat of January will fall due (exclud- vember. ing the days of grace) all on the same 101 § 111 INTEEPKETATION. [BOOE H. § 110 h. Hours. — Sometimes a statute employs the term "hour" or "hours," but there is nothing in its meaning requiring special consideration. ^ § 110 c. Sunday. — Whether or not Sunday is to be excluded from a computation will depend largely on the nature of the sub- ject, and in some degree on the statutory terms. As it is not a day for judicial business,^ it is excluded from computations re- lating thereto, when consistent with the words. Where, in a case of this sort, the law gives a certain number of hours for the performance of an act, those even of an intervening Sunday are to be left out from the count ; the person being allowed hours wherein it is lawful to do the act.^ And to some extent, and by some opinions, this is so also where the time is given in days, especially when the number is less than seven.* Nor is Sunday counted among the days of a term of court.^ But the rule gov- erning most classes of cases is, that it is counted the same as any other day.^ The cases cited in the notes show some diversities of views, not necessary to be entered into here. § 111. Differing Words — Subject. — We have already seen that the differing words of statutes enter largely into the questions discussed in this chapter, as do likewise their differing subjects. And, when all is done, the unreconciled conflicts of judicial opinion are numerous. It would be a happy thing if an author could so present this topic as to render doubts or differences im- possible hereafter. Since this cannot be, let us here close the chapter with some further references to authorities, chiefly perti- 1 Franklin v. Holden, 7 E. I. 215 ; 111. 222 ; The State v. Howard, 82 N. C. Commonwealth v. Intoxicating Liquors, 623 ; National Bank v. Williams, 46 Misso. 97 Mass. 601; Eidgley v. The State, 7 17 ; Ridgley w. The State, 7 Wis. 661. But Wis. 661 ; Meng u. Winkleraan, 4.3 Wis. see Peacock v. Reg. 4 C. B. u. s. 264. 41. 5 Michie u. Michie, 17 Grat. 109 ; 2 Grim. Proced. I. § 1001 ; Chapman Bead v. Commonwealth, 22 Grat. 924. V. The State, 5 Blaokf. Ill ; Langabier v. And see National Bank v. Williams, 46 Tairbury, &c. Railroad, 64 111. 243 ; True Misso. 17 ; Burton v. Chicago, 53 111. 87 ; V. Plumley, 36 Maine, 466 ; Harris v. Clerks' Say. Bank v. Thomas, 2 Misso. Morse, 49 Maine, 432 ; Watts v. Com- Ap. 367. monwealth, 5 Bush, 309. 6 Commissioners of Pilots v. Erie Eail- 3 Meng V. Winkleman, 43 Wis. 41 ; way, 5 Rob. N. Y. 366 ; Peacock v. Reg. 4 Commonwealth v. Intoxicating Liquors, C. B. n. s. 264 ; Taylor v. Palmer, 31 Cal. 97 Mass. 601 ; Eidgley v. The State, 7 240 ; Miles v. McDermott, 31 Cal. 271; Wis 661. But see Franklin v. Holden, 7 Broome v. Wellington, 1 Sandf. 664; Ex R. I. 215. And see The State v. Green, parte Dodge, 7 Cow. 147 ; Ex parte 66 Misso. 631. Simpkin, 2 Ellis & E. S92. And see * Chicago V. Vulcan Iron Works, 93 Hughes v. Griffiths, 13 C. B. n. s. 324. 102 CHAP. XIV.] COMPUTATION OF TIME. § 111 nent to the matter of this section, as showing the combined effect of the particular subject and the special words.^ '^ Sanborn v. Fireman's Ins. Co. 16 Gray, 448 (" within ") ; Levert v. Read, 54 Ala. 529 ("within ") ; People v. Wayne Circuit Judge, 37 Mich. 287 ("hereto- fore ") ; People v. Walker, 17 N. Y. 502 ("until'); Annan v. Baker, 49 N. H. 161 (" at the end of the year ") ; Simpson V. Sutton, Phillips, 112 (" year and day ") ; Alger V. Curry, 40 Vt. 437 ; Swainson v. Bishop, 52 Misso. 227 ; Northrop v. Coop- er, 23 Kan. 432 ; The State v. McLendon, 1 Stew. 196 ; Garner v. Johnson, 22 Ala. 494 ; Boyd v. Commonwealth, 1 Rob. Va. 691 ; Owen v. Slatter, 26 Ala. 547 ; The State V. Schnierle, 5 Rich. 299; Burr v. Lewis, 6 Texas, 76 ; Commonwealth c;. Jones, 2 Jones, Pa. 365 ; Abrahams u. Commonwealth, 1 Rob. Va. 675 ; Kimm b. Osgood, 19 Misso. 60 ; Peables v. Han- naford, 18 Maine, 106 ; The State v. God- frey, 3 Fairf . 361 ; PuUmg v. People, 8 Barb. 384. 103 § 112 INTEBPBBTATION. [BOOK II. CHAPTER XV. HOW THE SPECIAL MATTEB OF A STATUTE INFLUENCES ITS INTEEPEET ATION . § 111 a. Doctrine defined. — The doctrine of this chapter is, that the interpretation of a statute is influenced by the special matter comprehended in its terms. Distinctions. — This doctrine is similar to, yet diverse from, various others prominent in these discussions ; such as, that all laws are to be interpreted together as modifying one another,' and that every writing is to be construed with reference to its subject.^ Illustrations — of the doctrine are such as the following : — § 112. "May" and "Shall."— The words "may" and "shall" — the one permissive and the other imperative, therefore in their primary meanings quite different — are interpreted by the matter of the provision in which they occur ; so that practically " may " is almost as often imperative as permissive, and the two admit of being used, to a considerable extent, interchangeably.^ Still the cases are not numerous in which " shall " alone is held to be per- missive like " may " in its primary sense, but they do occur.* And the phrase " it shall be lawful," or " it shall and may be lawful," is an equivalent for the latter word, both primarily, and as admitting of either a permissive or an imperative rendering, to accord with the matter of the statute.^ The rules to deter- 1 Ante, § 86. Rex «. Flockwold Inclosure, 2 Chit. 251 ; 2 Ante, § 98 a. Hudd v. Ravenor, 2 Brod. & B. 662, 665. s Fowler v. Firkins, 77 111. 271 ; Kane 5 Castelli v. Groom, 18 Q. B. 490, 495; V. Footh, 70 111. 587 ; Steines w. Frank- Cook v. Tower, 1 Taunt. 372, 377 ; Bex lin, 48 Misso. 167 ; Estate of Ballentine, v. Eye, 1 B. & C. 85, 86; Reg. v. Oxford, 45 Cal. 696 ; People v Buffalo, 4 Neb. 4 Q. B. D. 245, 525 ; s. o. in H. of L. nom 150; People v. Otsego, 51 N. Y. 401; Julius i/. Oxford, 5 Ap. Cas. 214; Kex ». Rockwell V. Clark, 44 Conn. 534 ; The Norfolk, 4 B. & Ad. 238 ; In re Neath, State V. Buffalo, 6 Neb, 454. &c. Railway, Law Rep. 9 Ch. Ap. 263; ■> Railroad v. Hecht, 95 U. S. 168 ; Reg. w. Caledonian Railway, 16 Q. B. 19, Wheeler v. Chicago, 24 111. 105. And see 28. 104 CHAP. XV.] SPECIAL MATTER OF STATUTE. §112 mine when the permissive form is to be construed as imperative are not in all particulars made distinct by the decisions ; but, in general, whenever a private party or the public claims a right or interest under such a provision, the claim constitutes a sort of election which makes the permissive terms imperative, and they will be held to be so even without the formal claim .^ Conse- quently, for example, a permission to a court is a command, if it relates to the rights of suitors,^ but otherwise if it concerns some- thing in its nature discretionary.^ So far the doctrine is plain, and is abundantly established by the decisions. It was once ob- served, that "may" is imperative "in all cases where the legis- lature means to impose a positive and absolute duty, and not merely to give a discretionary power. But no general rule can be laid down upon this subject, further than that that exposition ought to be adopted in this, as in other cases, which carries into eifebt the true intent a\id object of the legislature." * And, by all opinions, it is the meaning of the legislature at which interpreta- 1 Rex V. Tithe Commissioners, 14 Q. B. 459, 474 ; New York v. Furze, 3 Hill, N. Y. 612 ; Seiple v. Elizabeth, 3 Butcher, 407 ; Mitchell v. Duncan, 7 Fla. 13 ; Schuyler v. Mercer, 4 Oilman, 20 ; Cutler V. Howard, 9 Wis. 389 ; Blake v. Ports- mouth and Concord Railroad, 39 N. H. 435; Nave v. Nave, 7 Ind. 122; Banse- mer ». Mace, 18 Ind. 27 ; Supervisors v. United States, 4 Wal. 435 ; Galena v. Amy, 5 Wal. 705 ; People v. Otsego, 51 N. Y. 401 ; People v. Buffalo, 4 Neb. 150 ; Phelps V. Hawley, 52 N. Y. 23; Low v. Dunham, 61 Maine, 566 ; Phillips v. Fad- den, 125 Mass. 198 ; Steines v. Franklin, 48 Misso. 167 ; The State v. Saline Coun- ty Court, 48 Misso. 390 ; Kane v. Footh, 70 111. 587 ; The State v. Board of State Canvassers, 36 Wis. 498. 2 Reg. V. Adamson, 1 Q. B. D. 201 ; Macdougall u. Paterson, 11 C. B. 755; Crake v. Powell, 2 Ellis & B. 210 ; Asplin V. Blackman, 7 Exch. 386 ; Backwell's Case, 1 Vern. 152 ; Bowes v. Hope Life Ins. &c. Co. 11 H. L. Cas. 389, 402 ; Marson V. Lund, 13 Q. B. 664 ; Morisse v. Royal British Bank, 1 C. B. n. s. 67 ; Reg. House V. The State, 41 Missis. 737. An act, making it indictable "wilfully, 2 Kaudebaugii v. Shelley, 6 Ohio State, unlawfully, and maliciously " to " cut, 307. And see The State v. Vernon, 53 shoot," &c., "any horse," &c., was ad- Misso. 128. judged not repealed by one declaring ' Egypt Street, 2 Grant, Pa. 455. " every wilful trespass " to be a misde- Other Illustrations. — Illustrations of meanor. The State w. Alexander, 14 Rich, this principle might be multiplied indefi- 247. Nuisance. — A statute which im- nitely. Indictment, then Civil Action, poses a penalty for occupying a building — Where a statute prohibits an act, un- in the compact part of a town, as a der a penalty enforceable by indictment, slaughter-house, without license, does and subsequently another gives a qui tarn not repeal the common law relative to action, the latter is cumulative of, and nuisances. The State r. Wilson, 43 N. H. does not repeal, the remedy under the 415. In General.— Multitudes of other former. Bush v. The Republic, 1 Texas, illustrations occur in the cases cited to 455. Compare with Towle v. Smith, 2 the opening part of this section and the Rob. N. Y. 489. Malicious Mischief— other sections there referred to. 142 CHAP. XVIII.] 6ENEEAL DOCTRINE OF REPEAL. § 158 bonds. Then a subsequent act appropriated, out of the same fund, a sum so large as to interfere with the payment of the bonds. It was thereupon held, that the latter enactment did in no measure repeal the former ; but the appropriation it made should take effect only out of what was left after the bonds were paid.i But — Change of Salary. — A subsequent Statute fixing a salary differ- ent from a former one repeals the former ; ^ because, in the nature of things, these statutes cannot subsist together ; the sal- ary must be either the one sum or the other, it cannot be both. § 157. Partial Repeal. — In many of the foregoing instances, wherein earlier and later enactments are said to stand together without repeal,^ there is, in fact, a partial repugnance ; and then, accurately speaking, a repeal of the earlier by the later takes place as to the part,* — a subject more minutely explained and illustrated in the next chapter. But, — Without Repugnance, — no statute, except by express words or affirmative implication, operates as a repeal of the prior law, whether statutorj' or common.^ Still — Exceptional Doctrine. — An exception to this proposition, un- certain in its form and application, is admitted in some of our tribunals ; in how many it would be impossible to say. Thus, — § 158. Revision of Whole Subject — (United States). — In the Supreme Court of the United States, Field, J., after laying down the general doctrine as in the foregoing sections of this sub-title, and after saying that if two acts " are repugnant in any of their provisions, the latter act, without any repealing clause, operates to the extent of the repugnancy as a repeal of the first," adds : " And even where two acts are not in express terms repugnant, yet, if the latter act covers the whole subject of the first, and embraces new provisions, plainly showing that it was intended as a substitute for the first act, it will operate as a repeal of that act."^ Now, if this means that the legislative intent, however 1 The State v. Bishop, 41 Mlsso. 16. son v. Green Bay, &c. Railway, 36 "Wis. 2 Pierpont u. Crouch, 10 Cal. 315. 383 ; New Orleans v. Hoyle, 23 La. An. For other cases of irreconcilable repug- 740 ; In re United Patriots' National nance, see People w. Burt, 43 Cal. 560; Benefit Soc. 4 Q. B. D. 29; United States Evansville v. Bayard, 39 Ind. 450. v. Tynen, 11 Wal. 88, 92. ' And see post, § 165. ^ AflSrmed by all the foregoing cases * Mongeon u. People, 55 N. Y. 613 ; under this sub-title. MitcheU v. The State, 19 Ind. 381; Ole- o United.StatesK.Tynen,llWal.88,92. 143 § 158 INTERPRETATION-. [BOOK II. expressed, is to be carried out,^ the doctrine is harmonious with all that has gone before in these elucidations. But if the mean- ing is, that the court is permitted to enter into surmises outside of any statutory words, and from its ideas of the nature of the subject declare, where there is no repugnance, a repeal of the prior law, the doctrine is irreconcilably adverse to the whole body of the law of statutory interpretation.^ For it is fundamen- tal in our jurisprudence, that the intention of the legislature must be ascertained from the words of a statute, and not from any general inferences to be derived from the nature of the sub- ject with which it deals. ^ And in the case under consideration, nothing was decided contrary to the common and better doctrine. The point adjudicated was, that, "when there are two acts of Congress on the same subject, and the latter act embraces all the provisions of the first, and also new provisions, and imposes dif- ferent or additional penalties, the latter act operates, without any repealing clause, as a repeal of the first." * This results from the single rule of repugnance ; since, as in the nature of things there cannot be two different salaries for the same service,^ so there cannot be two different punishments for the same offence. In a subsequent case before the same tribunal, it was laid down, that, for a repeal to take place in the circumstances under considera- tion, the objects of the two statutes must be the same, it is not sufficient that their subjects are.^ Other statements of the doc- trine have been made by single judges in the national tribunals." In the full court at Washington, Strong, J., speaking for all the judges, declared the doctrine of the first mentioned case to be, " that the former statute is impliedly repealed so far as the pro- visions of the subsequent statute are repugnant to it, or so far as the latter statute, making new provisions, is plainly intended as a substitute for it. [Here there is an ambiguity; namely, whether the court is to infer an intent which the legislature took care not to express, contrary to the rule in all other cases of statutory in- terpretation ; or whether the inference is to be drawn from what a ' Ante, § 70 ; Butler v. Russel, 3 Clif. 5 Ante, § 156 a. 251. 6 United States v. Claflin, supra. 2 Ante, § 145, 146, 152, 154, 355. ' Patterson v. Tatum, S Saw. 164 ; 3 Fordyce v. Bridges, 1 H. L. Cas. 1. Butler v. Russel, 3 Clif. 251 ; United * Reporter's head-note to United States States u. Cheesman, 3 Saw. 424; United V. Tynen, supra. And see United States States v. Barr, 4 Saw. 254. V. Claflin, 97 U. S. 546 ; Norris v. Crocker, 13 How. U. S. 429. 144 CHAP. XVIII.] GENERAL DOCTKINE OF REPEAL. §159 judge may properly see in the words and surroundings. But the meaning appears to be cleared of doubt by the following.] Where the powers or directions under the several acts are such as may well subsist together, an implication of repeal cannot be allowed.^' ^ While thus our high national tribunal seems freed from any just imputation of having absolutely accepted a doctrine to which few legal persons will on adequate reflection, and as a question of principle, assent, we have from it diata creating some uncertainty as to what might be its decision should cases. easily to be imagined arise. For the natural expression of the better doctrine would be simply, that, where two statutes can be made by construction to subsist together, the later shall not operate as a repeal of the earlier. § 159. In our states — (England). ■ — The unfortunate doctrine, thus in a measure explained, originated in some of our State tri- bunals. It is believed never to have been known in England.^ 1 Henderson's Tobacco', 11 Wal. 652, 657. 2 Ho-w in England. — Though my at- tention has long been directed to this doctrine, I hare never found it in any English case, not saying that it does not exist in some case overlooked. I extract from Wilberforce on Stat. Law, p. 328- 330, a collection of matter as near to this doctrine as I hare seen ; but I think the reader will agree with me, that none of it reaches so far. " Where an affirmative statute introduces a new law or gives a new right, and it appears to be the in- tention of the legislature that the new law alone shall be followed, or that a right which previously existed should be merged in the one newly created, the later statute will act as a repeal of the earlier, 'as implying a negative.' Har- court V. Fox, 1 Show. 506, 520, per Eyres, J. ; 0' Flaherty v. McDowell, 6 H. L. Cas. 142, 157, per Lord Cranworth, L. C. Thus the 1 Will. & M. c. 21, which pro- vided that the rustos rotutorum should ap- point a clerk of the peace to act ' for so long a time only as he shall well demean himself in his said office,' was a repeal pro tanto of 37 Hen. 8, c. 1, giving the appointment of the clerk of the peace to the custos rotulorum, but limiting the ten- ure of the office of clerk of the peace to 10 the time that the person making the ap- pointment should continue custos rotulo- rum. Harcourt v. Fox, 1 Show. 506. For the same reason it is said by Lord Coke, that the act 33 Hen. 8, c. 23, enacting that persons examined before the King's Council might be tried for treason in any county where the King should please, would have been repealed by 1 & 2 Phil. & M. u. 10, which provided that all trials for treason should be had according to the course of the common law and not otherwise, even if the later act had not contained the negative words 'and not otherwise.' Foster's Case, 11 Co. 56 b, 63 a. Section 57 of 4 & 5 Will. 4, c. 76, enacted that every man who should marry a woman having legitimate or illegiti- mate children should be liable to main- tain such children, and should be charge- able with all relief granted to them. It was held that these words, though affirm- ative, operated, in the cases to which the act referred, as a repeal of so much of 18 Eliz. c. 3, § 2, and 49 Geo. 3, c. 68, as rendered the putative father of a bastard child liable for its maintenance. Langu. Spicer, 1 M. & W. 129. Section 6 of 8 & 9 Will. 3, c. 30, provided that appeals against orders of removal should be de- termined at the Quarter Sessions of the Peace for the county, division, or riding 145 §159 INTEEPRETATION. [book n. Precisely how the question stands in all our States the author will not attempt to define. Looking at the cases less critically than in the last section, we find the doctrine to have been ac- cepted perhaps in Massachusetts,^ Maine,^ Pennsylvania,^ Ver- mont,* and possibly Alabama,^ together with some of the other States,^ to the extent, simply and no further, that, where a newly- containing the parish from which the removal was ordered, and not elsewhere. 5 & 6 Will. 4, c. 76, § 105, gave jurisdic- tion in boroughs to the recorder over all matters cognizable by any court of Quar- ter Sessions of the Peace for counties. It was at first suggested that this section gave a recorder concurrent jurisdiction, Keg. V. St. Edmund's, 2 Q. B. 72, but in a subsequent case the court held that the affirmative words of the later section re- pealed the earlier provision, and that a recorder had exclusive jurisdiction over appeals against orders of removal from any parish within his borough. Reg. v. Suffolk Justices, 2 Q. B. 85." For Eng- lish cases adverse to the doctrine disap- proved in the text, see post, § 160, note. ' Commonwealth v. Cooley, 10 Pick. 37 ; Goodenow o. Buttrick, 7 Mass. 140 ; Bartlet v. King, 12 Mass. 537, 545 ; Ash- ley, Appellant, 4 Pick. 21, 23 ; Mason v. Waite, 1 Pick. 452; Ellis v. Paige, 1 Pick. 43, 45 ; Jennings v. Commonwealth, 17 Pick. 80 ; Commonwealth v. Ayer, 3 Cush. 150; Commonwealth u. Foster, 1 Mass. 488 ; Nichols v. Squire, 5 Pick. 168 ; Com- monwealth V. Dennis, 105 Mass. 162. 2 Towle V. Marrett, 3 Greenl. 22 ; Pin- geer v. Snell, 42 Maine, 53 ; Buck v. Spofford, 31 Maine, 34, 36. 2 Commonwealth v. Cromley, 1 Ashm. 179; Report of the Judges, 3 Binu. 595, 697. But in this State, Stat. March 21, 1806, had ordained, "that, in all cases where a remedy is provided, or any thing or things directed to be done by an act of Assembly, the directions of the act shall be strictly pursued, and no penalty shall be inflicted or any thing done agreeably to the common law, further than is neces- sary in carrying such act or acts into effect." Consequently, Illegal Fees. — It was held, that an indictment did not lie at common law against an officer for taking illegal fees, the remedy being un- der the statute of March 28, 1814, § 20. 146 Commonwealth v. Evans, 13 S. & R. 426. Still the general doctrine is maintained in Pennsylvania, that there is no repeal by implication where the two acts can be construed together. Shinn v. Common- wealth, 3 Grant, Pa. 206. * Giddings v. Cox, 31 Vt. 607 ; Farr v. Brackett, 30 Vt. 344 ; Isham u. Benning- ton Iron Co. 19 Vt. 230. 5 The State v. Whitworth, 8 Port. 434 ; Smith B. The State, 1 Stew. 506. But see George v. Skeates, 19 Ala. 738. ° The State v. Seaborn, 4 Dev. 305, 310 ; Dugan v. Gittings, 3 Gill, 138 ; Strauss v. Heiss, 48 Md. 292 ; Caldwell V. St. Louis Perpetual Ins. Co. 1 La. An. 85 ; Smith v. The State, 14 Misso. 147 ; Bryan v. Sundberg, 5 Texas, 418 ; Rogers v. Watrous, 8 Texas, 62 ; Erwin V. Moore, 15 Ga. 361 ; Illinois and Michi- gan Canal v. Chicago, 14 111. 334 ; Pankey V. People, 1 Scam. 80 ; Leightou v. Walk- er, 9 N. H. 59 ; "Wakefield v. Phelps, 37 N. H. 295; Pulaski v. Downer, 6 Eng. 588 ; Gorham v. Luckett, 6 B. Monr. 146 ; Stirman v. The State, 21 Texas, 734; Swann v. Buck, 40 Missis. 268 ; Sacra- mento V. Bird, 15 Cal. 294 ; The State v. Conkling, 19 Cal. 501 ; Industrial School District v. Whitehead, 2 Beasley, 290; The State v. Jersey City, 11 Vroom, 257 ; Conley v. Calhoun, 2 W. Va. 416 ; The State V. Rogers, 10 Nev. 319 ; Thorpe ». Schooling, 7 Nev. 15 ; Broaddus y. Broad- dus, 10 Bush, 299 ; Cullen v. The State, 42 Conn. 65 ; Campbell v. Case, 1 Dak. Ter. 17; Breitung e. Lindauer, 37 Mich. 217 ; The State v. Campbell, 44 Wis. 529; The State v. Van Stralen, 46 Wis. 437. See Daviess v. Fairbairn, 3 How. U. S. 636, 645. In Indiana, to work a repeal, the new provisions must be inconsistent with the old. Longlois v. Longlois, 48 Ind. 60; Coghill v. The State, 37 Ind. Ill; Hamlyn v. Nesbit, 37 Ind. 284; Dowdell V. The State, 68 Ind. 333. And see Hogan v. Guigon, 29 Grat. 705. CHAP. XVni.] GENERAL DOCTRINE OP REPEAL. § 160 enacted statute covers the whole ground occupied by a prior one or by the common law, it repeals such law by implication, though tj;iere is no repugnance. A part of the cases add, as qualifying this proposition, that the new statute must plainly appear to have been intended as a substitute for the old, or as furnishing the only rule of law for the question. Now, partly to repeat,^ — § 160. Objections — (True Rule). — If the legislature did in- tend the rtew enactment to be a substitute for the old law, and if it expressed such intention, or if it employed language incon- sistent with any other conclusion, such legislative intent ^ must, all concede, be carried into effect by interpretation. But our jurisprudence is full of instances in which two or a dozen distinct laws cover one question, or cluster of facts, and all stand to- gether, parties having their election on which one to proceed. If the legislature says that its statute is a revision of the whole subject, and meant to be a repeal of all prior laws relating there- to, no court will hesitate to give it this effect. But if, instead of saying this, it simply enacts what is consistent with the prior law, or re-enacts such law, how can a court know that it means what it does not say, a repeal of laws which may subsist with those which it establishes ? Hence, in principle, and equally on the better American authorities and on the English,^ the just doctrine is, that, without exception, a statute in affirmative terms, with no intimation of an intent to repeal prior laws, does not repeal them, unless the new and the old are irreconcilably in conflict.* 1 Ante, § 158. Cromp. M. & R. 473 ; Rex v. Aslett, 1 2 Ante, § 70. New Rep. 1, 7; Dore v. Gray, 2 T. R. 8 Ante, § 150. 358, 365 ; Reg. a. Dicken, 14 Cox C. C. * The reader is referred, among other 8 ; Planters' Bank v. The State, 6 Sm. & authorities, including those before cited M. 628 ; Kinney v. Mallory, 8 Ala. 626 ; in the course of this discussion, to Twen- Chesapeake and Ohio Canal v. Baltimore ty-two Packages of Cloth v. United States, and Ohio Railroad, 4 Gill & J. 1 ; The 16 Pet. 342, 362; Rex u. Paine, 1 East State v. Barker, 4 Barring. Del. 559; De P. C. 5 ; Morlot u. Lawrence, 1 Blatch. Armas Case, 10 Mart. La. 158, 172 ; Ber- 608 ; Rex v. Carlile, 3 B. & Aid. 161 ; man ^. Sprigg, 3 Mart. n. s. 190, 199 ; Reg. 0. Salisbury, 2 Q. B. 72, 84 ; 1 Bl. Williams v. Potter, 2 Barb. 316 ; George Com. 89; Broom Leg. Max. 2d ed. 24; v. Skeates, 19 Ala. 738; United States v. Williams v. Pritchard, 4 T. R. 2 ; Rix v. Twenty-fire Cases of Cloths, Crabbe, 356, Borton, 12 A. & E. 470 ; Dakins v. Sea- 370, 382 ; The State v. Moore, 19 Ala. man, 9 M. & W. 777, 789; s. c. nom. Da- 514; Freeman v. The State, 6 Port. 372; kins V. Searman, 6 Jur. 783 ; Wynn v. Morris v. Delaware and Schuylkill Canal, Davies, 1 Curt. Ec. 69, 80; Middleton v. 4 Watts & S. 461; Beals v. Bale, 4 Bow. Crofts, 2 Atk. 650, 675; Foster's Case, 11 U. S. 37; Brown <;. Miller, 4 J. J. Mar. Co. 56, 63 ; Ashton v. Poynter, 1 Cromp. 474 ; Alexandria u. Dearraon, 2 Sneed, M. & R. 738; Phipson u. Barvett, 1 104; Aspden's Estate, 2 Wal. Jr. 368,431; 147 161 INTERPRETATION. [book n. § 161. Reasons for Objectionable Doctrine. — For the objection- able doctrine now being explained, no reasons which will bear scrutiny have yet been assigned in the books. Commonly, when any attempt at giving reasons is made, it is a mere following of a Massachusetts dictum, thus: "It is a well-settled rule, that, when any statute is revised, or one act framed from another, some parts being omitted, the parts omitted are not to he revived by construction, but are to be considered as annulled. To hold oth- erwise would be to impute to the legislature gross carelessness or ignorance ; which is altogether inadmissible." ' Here is a ludi- crous putting of the " cart before the horse." A repeal of the entire old law, with no words of repeal or occasion for it shown, is first assumed ! Then the court says, that " the parts omitted are not to be revived hy construction I " If our law is, what Coke Daviess v. Fairbaim, 3 How. U. S. 636 ; Mitchell V. Duncan, 7 Fla. 13 ; The State V. Fuller, 14 La. An. 667 ; The State v. Kitty, 12 La. An. 805; Beridon w. Bar- bin, 13 La. An. 458 ; Pratt v. Atlantic and St. Lawrence Railroad, 42 Maine, 579 ; Richards v. Patterson, 30 Missis. 583; Commercial Bank «. Chambers, 8 Sm. & M. 9 ; Ament v. Humphrey, 3 Greene, Iowa, 255 ; Attorney-General v. Brown, 1 Wis. 513 ; Casey v. Harned, 5 Iowa, 1 ; The State v. Smith, 7 Iowa, 244; Edgar v. Greer, 8 Iowa, 394 ; The State V. Woodside, 9 Ire. 496. In New York, the act of 1824 authorized a divorce from bed and board to the husband for the wife's cruel treatment ; the Revised Stat- utes of 1830 gave this remedy only to the wife ; but by accident the act of 1824 was not expressly repealed, and the courts held that it remained in force. 1 Bishop Mar. &Div. § 761, note, referring to Perry V. Perry, 2 Barb. Ch. 311 ; Perry w. Perry, 2 Paige, 501 ; Van Veghten v. Van Vegh- ten, 4 Johns. Ch. 501 ; MoNamara v. McNa- mara, 2 Hilton, 547, 549. For later New York views on this sort of question, see New York v. Broadway, &c. Railroad, 12 Hun, 571 ; Excelsior Petroleum Co. v. Em- bury, 67 Barb. 261. For more as to re- peals by general revisions of the laws, see Barker v. Bell, 46 Ala. 216; Ex parte Birchfield, 52 Ala. 377 ; Sanders f. The State, 58 Ala. 371 ; The State v. Twogood, 7 Iowa, 252 ; Gray i>. Mount, 45 Iowa, 591 ; 148 Ballin v. Ferst, 55 Ga. 546 ; Scheftels v. Tabert, 46 Wis. 439 ; Middleton v. New Jersey, &c. tlailroad, 11 C. E. Green, 269 ; Whitaker v. Haynes, 49 Cal. 596 ; Fred- erick V. Groshon, 30 Md. 436. See ante, § 98. In the Illinois case of Bruce v. Schuyler, 4 Gilman, 221, 271, Wilson, C. J. stated the rule in the following words : " The doctrine of repeal by implication is not favored by the law, and is never to be resorted to except when the repug- nance or opposition is too clear and plain to be reconciled. The rule of law is, that all laws in pari materia are to be con- strued together." The reporter's head- note to a later Illinois case is : "A stat- ute which covers all the grounds of prior ones on the same subject, and revises the whole law on the given subject, necessa- rily works a repeal of all prior conflicting laws, whether such conflict be found in the provisions of general laws or those of special charters." Andrews v. People, 75 111. 605. See Booth u. Carthage, 67 111. 102. The Scotch law also appears to ac- cord with the view in the text. Qum- ming's Case, Shaw Crim. Cas. 17. "It is a rule of law, that one private act of Parliament cannot repeal another, except by express enactment." Even thoitgh the second private act is declared to be a public one, the consequence Is the same. Birkenhead Docks v. Laird, 4 De G., M. & G. 732, 23 Eng. L. & Eq. 389. 1 Ellis V. Paige, 1 Pick. 43, 45. CHAP. XVni.] GENERAL DOCTRINE OF REPEAL. § 162 and others have said it is, the " perfection of reason," surely this perversion of logic is not law. The question, the reader per- ceives, has nothing to do with the revival of a repealed statute. But it is, as already explained, whether, when the legislative body makes what on its face is a mere addition to the laws, employing no negative words and saying nothing of repeal, a court should impute to it " gross carelessness or ignorance ; " and so declare repealed portions of the old law which may well stand with the new, because the law-making power either did not know what the law was before, or did not sufficiently understand the use of language to express what it meant. The most plausible application of this sort of doctrine occurs where a statute of our own has covered the whole subject embraced in some English act which with us is common law. In such a case, it is said by those who follow this doctrine, that our statute repeals the Eng- lish,i — a view entitled to grave consideration on the question whether we have adopted the English act; but, supposing it adopted, why may it not stand until the legislature dissents from it, either by direct words or by an inconsistent enactment ? § 162. In Conclusion — of this question, an examination of the cases in which was involved the erroneous doctrine will show, that there neither is nor can be any uniformity in its applica- tion, — in other language, that it is a mere drifting to sea, with- out rudder or compass, — and that it is equivalent to no rule. It simply permits, in certain circumstances, the courts to make the laws, instead of following what the legislature has enacted. Hence, among other objections, it is inconvenient. And it puts the judges in the legislative seat. If the new law is not incon- sistent with the old, why infer a repeal where none is declared ? All enactments are to be interpreted in harmony with the com- mon law ; ^ yet this law recognizes a variety of remedies for a single wrong, a variety of offences committed by a single act, a variety of modes of procedure to gain a common right, a variety , of jurisdictions over a given matter, a variety of results from a single cause.^ Nature recognizes the same. And for a court, 1 Mason v. Wajte, 1 Pick. 452 ; The an affirmatiye statute was held under this State V. Seaborn, 4 Dev. 805, 310 ; Report rule to repeal the common law received of Judges, 3 Binn. 696, 597 ; Towle v. from England. Marrett, 3 Greenl. 22. And see Common- 2 Ante, § 141. wealth V. Dennis, 105 Mass. 162, where ^ ^]j,j ggg ^;ije next chapter. 149 163 INTEEPEETATTON. [book II. disregarding the teachings of both, to declare for a repeal where the legislature has not, is to enact, not interpret, the laws. IV. Repeals in Particular States. § 163. Further Authorities grouped. — The foregoing discussions disclose some diversities of doctrine in the different States. And there are probably others. Hence, and for purposes of con- venience, some of the authorities are here, in a note,^ collected 1 England. — Kex «. Paine, 1 East P. C. 5; Eex v. Thome, 2 East P. C. 622; Williams v. Eeg. 7 Q. B. 250; Reg. v. Wynn, 1 Den. C. C. 365, 1 Temp. & M. 32, 13 Jur. 107, 18 Law J. n. s. M. C. 51 ; Eeg. V. Overton, 4 Q. B. 83 ; Reg. v. Tivey, 1 Den. C. C. 63 ; Rex v. Parring- ton, Russ. & Ry. 207 ; Eex v. Eobinson, 2 Leach, 4th ed. 749, 2 East P. C. 1110; Eex V. CarUle, 3 B. & Aid. 161 ; Eex ,;. Waddington, 1 B. & C. 26 ; Eex v. Moor, 2 Mod. 128 ; Sir John Ifuight's Case, 3 Mod. 118 ; Eex \j. Jackson, Cowp. 297 ; Eex V. Taylor, Russ. & Ry. 373 ; Reg. v. Pugh, 6 Mod. 140, 141 ; Reg. v. Sill, Dearsly, 10, 14 Eng. L. & Eq. 135 ; Rex V. O'Brian, 7 Mod. 378, 379 ; Reg. . Seymour, Vianna, 1 B. & Ad. 284; Fergusson v. 1 H. & C. 219. Fyfie, 8 01. & F. 121. 3 Ante, § 85 a. 6 Hale v. The State, 15 Conn. 242 ; 164 CHAP. XX.J CONSEQUENCES OF REPEAL. § 177 §176. Remedy — (Procedure). — The procedure in a cause, whether civil or criminal, pertains to the remedy. And, subject to exceptions growing out of special reasons, it must conform to the general law of procedure prevailing at the place and time where and while the cause is instituted and progressing. In respect of past transactions, therefore, the same as of future ones, it may be changed from time to time, at the legislative pleasure. • Again, — Punishmeat — (Ex post Paoto). — The punishment wherewith the law visits a crime, being, as we have seen, separable from the definition of the crime,^ pertains to the remedy. A statute in- creasing it for offences already committed would be void as ex post facto ;^ but, subject to this exception, a convicted prisoner may receive whatever sentence the law provides at the time it is pronounced, and no other can be imposed.* Now, — § 177. Repeal ends Proceedings. — No court can entertain a cause without authority of law. Therefore the repeal of a stat- ute terminates all proceedings under it.^ And the same rule applies to a municipal by-law.^ Thus, — In Criminal Prosecutions. — If the common or statutory law, which authorizes a pi-osecution and conviction for any offence, is repealed or expired " before final judgment, the court can go no Lore V. The State, 4 Ala. 173 ; The State The State v. Fletcher, 1 U. I. 193 ; ante, V. Fletcher, 1 E. L 193 ; Davidson a. § 166. Wheeler, Morris, 238 ; Knoup v. Piqua ^ pickery Tree Eoad, 7 Wright, Pa. Bank, 1 Ohio State, 603. 139; Thomas w. The State, 3 Te.xas Ap. 1 Ante, § 84, 85 a ; Bishop Con. § 719, 112 ; Musgrove v. Vioksburg, &c. Eail- 737 ; Brock v. Parker, 5 Ind. 538 ; Lore road, 50 Missis. 677 ; Smith v. Arapahoe V. The State, 4 Ala. 173; Hale u. The Dist. Court, 4 Colo. 235; Miller's Case, 3 State, 15 Conn. 242 ; United States v. Sam- Wils. 420, 1 W. Bl. 451 ; Hunt v. Jennings, peryac. Hemp. 118 ; Hickory Tree Road, 5 Blackf . 195 ; Eoad in Hatfield, 4 Yeates', 7 Wright, Pa. 139 ; Eailroad v. Hecht, 392 ; Directors of the Poor v. Eailroad, 7 95 U. S. 168 ; Jones v. Davis, 6 Neb. 33 ; Watts & S. 236 ; The State v. Lackey, 2 People V. Essex, 70 N. T. 228; De Mill Ind. 285; Eeg. d. Denton, 18 Q. B. 761, V. Lockwood, 3 Blatch. 56 ; Searcy v. Dears. 3, 14 Eng. L. & Eq. 124 ; Common- Stubbs, 12 Ga. 437 ; Ralston v. Lothain, wealth v. Hampden, 6 Pick. 501, 508 ; Illi- 18 Ind. 303 ; Read v. Frankfort Bank, 23 nois and Michigan Canal v. Chicago, 14 111. Maine, 318; Bank of United States v. 334; North Canal Street Road, 10 Watts, Longworth, 1 McLean, 35 ; Sutherland v. 351 ; Fenelon's Petition, 7 Barr, 173. De Leon, 1 Texas, 250; Hope v. Johnson, « Kansas City v. Clark, 68 Misso. 588. 2 Yerg. 125 ; People v. Phelps, 5 Wend. 9. ' The Helen, 6 Cranch, 203 ; The See Van Valkenburgh u. Torrey, 7 Cow. Rachel u. United States, 6 Cranch, 329; 252. Yeaton o. United States, 5 Cranch, 281 ; 2 Ante, § 166, 167. The Irresistible, 7 Wheat. 551 ; Davidson = Grim. Law, I. § 279, 281. v. Wheeler, Morris, 238 ; Eaton v. Graham, « The State v. WilUams, 2 Rich. 418 ; 11 111. 619. But see post, § 181, 182. 165 §177 INTERPRETATION. [book II. further with the case.^ Even after verdict rendered against the prisoner,^ or after he has pleaded guilty,^ sentence cannot be pronounced ; and he must be discharged. The same result fol- lows, if there is a judgment which has been vacated by an appeal* or a writ of review." But after final judgment, a re- peal of the law will not arrest the execution of the sentence.® Again, — In Penal Actions. — For the same reason, in cases where no vested private rights interpose, statutes authorizing qui tarn and other penal actions in civil form for violations of public or quasi public duty, follow the same rules as to the effect of repeal.' But, — Before Statute is in Force. — • Between the time of the enactment ' Commonwealth v. Kimball, 21 Pick. 373 ; Commonwealth v. Marshall, 11 Pick. 350; Taylor v. The State, 7 Blackf. 93; Mayers v. The State, 2 Eng. 68 ; Anony- mous, 2 Lewin, 22 ; United States v. Passmore, 4 Dall. 372 ; Stoever v. Im- mell, 1 Watts, 258 ; Commonwealth v. Beatty, 1 Watts, 382 ; Scott v. Common- wealth, 2 Va. Cas. 54 ; The State v. Cole, 2 McCord, 1 ; The State v. Fletcher, 1 R. 1. 103 ; Attoo v. Commonwealth, 2 Va. Cas. 382 ; Commonwealth v. Leftwich, 5 Band. 657 ; Anonymous, 1 Wash. C. C. 84 ; People v. Townsey, 6 Denio, 70, 72 ; 1 Kent Com. 465 ; The State v. Allaire, 14 Ala. 435 ; Jordan v. The State, 15 Ala. 746 ; The State v. Loyd, 2 Irid. 659 ; Heald v. The State, 36 Maine, 62 ; How- ard V. The State, 5 Ind. 183 ; The Gov- ernor V. Howard, 1 Murph. 465 ; The State V O'Conner, 13 La. An. 486 ; The Rachel v. United States, 6 Cranch, 329 ; United States i). The Helen, 6 Cranch, 203 ; Yeaton v. United States, 5 Cranch, 281 ; Wall u. The State, 18 Texas, 682 ; The State v. IngersoU, 17 Wis. 631 ; The State V. Cress, 4 Jones, N. C. 421 ; Gen- kinger v. Commonwealth, 8 Casey, Pa. 99; The State v. Edward, 5 Mart. La. 474 ; Lunning i;. The State, 9 Ind. 309 ; Calkins v. The State, 14 Ohio State, 222 ; Griffin v. The State, 39 Ala. 541 ; Reg. !.. Denton, 18 Q. B. 761, Dears. 3 ; The State V. Gumber, 37 Wis. 298 ; Tuton v. The State, 4 Texas Ap. 472; Halfln v. The State, 5 Texas Ap. 212 ; Carlisle v. The State, 42 Ala. 523 ; Annapolis v. The 166 State, 30 Md. 112 ; United States v. Fin- lay, 1 Abb. U. S. 364; The State v. Long, 78 N. C. 571 ; Greer u. The State, 22 Texas, 588. 2 Commonwealth v. Duane, 1 Binn. 601 ; Keller v. The State, 12 Md. 322 ; Commonwealth v. Pattee, 12 Cush. 501 ; The State v. Stone, 43 Wis. 481. 8 Whitehurst v. The State, 43 Ind. 473 ; MuUinix v. The State, 43 Ind. 511. * The Rachel u. United States, 6 Cranch, 329 ; Yeaton v. United States, 5 Cranch, 281 ; Chaplin v. The State, 7 Texas Ap. 87 ; Hubbard v. The State, 2 Texas Ap. 506; Montgomery v. The State, 2 Texas Ap. 618; Sheppard v. The State, 1 Texas Ap. 522. See The State v. Brewer, 22 La. An. 273. s Lewis V. Foster, 1 N. H. 61. <> The State v. Addington, 2 Bailey, 516 ; Foster v. Medfleld, 3 Met. 1. ' Pope V. Lewis, 4 Ala. 487 ; The State V. Torabeckbee Bank, 1 Stew. 347 ; Eaton V. Graham, 11 111. 619; Sumner ii. Cum- mings, 23 Vt. 427 ; Lewis v. Foster, 1 N. H. 61 ; Allen v. Farrow, 2 Bailey, 584 ; Commonwealth v. Welch, 2 Dana, 330; Saco V. Gurney, 34 Maine, 14 ; Broughton V. Branch Bank, 17 Ala. 828; Engle v. Shurts, 1 Mich. 150 ; Thompson v. Bas- sett, 6 Ind. 535; Welch v. Wadsworth, 30 Conn. 140; Williams U.Middlesex, 4 Met. 76 ; Uwchlan Township Road, 6 Casey, Pa. 156 ; Gaul v. Brown, 53 Maine, 496; Rood v, Chicago, &o. Railway, 43 Wis. 146 ; Union Iron Co. v. Pierce, 4 Bis. 327. CHAP. XX.J CONSEQUENCES OF EEPEAL. § 177 a of a repealing statute and its going into operation, it produces no consequences whatever in any case.^ § 177 a. In other Civil Causes. — Subject to more numerous exceptions, the repeal of an ordinary civil statute is followed by the same results as of a criminal or penal one. The party loses his rights under it, and pending proeeedings can be carried no further. With respect to future steps, the repealed act is re- garded as having never existed.^ Yet, — Vested Eights. — Since, under our written constitutions, vested rights cannot by any form of legislation be divested,^ while still the remedy may be changed, but not so as to be virtually de- stroyed,^ it follows, as a part of the same proposition, that no repeal of a statute can divest this class of rights. We may say, that the effect of the repeal cannot be so, or that the formal repeal is thus far unconstitutional and void, or that the constitu- tion saves the right after the repeal has transpired, or that it so blends with the statute as to render it to this extent irrepealable, — different methods of stating the same legal doctrine.^ The old remedy, if no new one is provided, remains for the enforce- ment of the irrevocable, vested right.^ But — Not Vested. — Any right not vested falls with the repeal of the statute on which it rests." 1 Ante, § 31 ; Grinad v. The State, 34 293; Rock Hill College v. Jones, 47 Md. Ga. 270. 1 ; Milner v. Pensacola, 2 Woods, 682 ; 2 Surtees v. Ellison, 9 B. & C. 750; Grey v. Mobile Trade Co. 55 Ala. 387; Musgrove v. Vicksburg, &c. Railroad, 50 Musgrove v. Vicksburg, &c. Railroad, 50 Missis. 677 ; Van Inwagen v. Chicago, 61 Missis. 677 ; Backes v. Dant, 55 Ind. 181 ; 111. 31 ; Assessors w. Osbomes, 9 Wal. 567 ; Creighton i>. Pragg, 21 Cal. 115; Davis United States v. Six Fermenting Tubs, 1 v. Minor, 1 How. Missis. 183 ; James v. Abb. U. S. 268; NichoUs u. Gee, 30 Ark. Dubois, 1 Harrison, 285; Kice v. Rail- 135 ; Hunt v. Jennings, 5 Blaekf. 195 ; Dli- road, 1 Black, 358 ; Ex parte Graham, 13 nois, &c Canal w. Chicago, 14 111. 334 ; Mac- Rich. 277 ; Naught v. Oneal, Breese, App. nawhocPlantation W.Thompson, 36 Maine, 29; Taylor i>. Rushing, 2 Stew. 160; 365 ; Uwchlan Township Road, 6 Casey, Streubel o. Milwaukee, &c. Railroad, 12 Pa. 156 ; Stephenson v. Wait, 8 Blaekf. Wis. 67. Rights of property depend on 508 ; North Canal St. Road, 10 Watts, the statutes as existing at the time they 351 ; Petition of Fenelon, 7 Barr, 173 ; vest. Hunt v. Hunt, 37 Maine, 333 ; Hickory Tree Road, 7 Wright, Pa. 139. Mays v. Williams, 27 Ala. 267 ; Yar- 8 Ante, § 85 a. mouth v. North Yarmouth, 34 Maine, 4 Ante, § 84, 84 a, 176; post, § 178; 411. De Mill V. Lockwood, 3 Blatch. 56 ; « Wilson v. Herbert, 12 Vroom, 454. Woodruff V. Scruggs, 27 Ark. 26 ; Mc- See Knoup v. Piqua Bank, 1 Ohio State, Creary v. The State, 27 Ark. 425 ; Beebee 603. V. O'Brien, 10 Wis. 481; Langford v. ' Bailey i>. Mason, 4 Minn. 546 ; Butler King, 1 Mon. Ter. 33. v. Palmer, 1 Hill, N. Y. 324. 5 Memphis v. United States, 97 U. S. 167 § 178 a INTERPEETATION. [BOOK .II. § 178. Taking away Remedy. — There is no vested right in any- particular remedy ; ^ hence, as already appears,^ a statute may modify the remedy, yet not so as to leave none,^ or one so diffi- cult as to be practically without avail.* Rights vested in Penal Actions. — There may be vested rights in penal actions,^ and the repeal of the statute will not take them away.^ Some nice questions arise as to what act, under this rule, will vest, in the persoh performing it, the right to a penalty incurred by another. There are analogous questions relating to the effect of a pardon, discussed in " Criminal Law." " The doc- trine probably is, that, when the suit is in the name of the gov- ernment, the right does not vest until final judgment ; ^ but, when a private individual is plaintiff, the bringing of the suit vests the right. Costs — are governed by the statutes existing when final judg- ment in the cause is rendered ; ^ so that an earlier repeal, though while the suit is in progress, terminates the right.^" At such ren- dition of judgment, before they are taxed, they become vested, and then a repeal of the statute will not divest them. They can be taxed afterward. ^^ § 178 a. Office. — A public office is not a vested right. In the absence of any positive constitutional restraint, the legisla- ture may repeal the statute creating it, and the dispossessed in- cumbent will be entitled only to the salary already earned.^^ Or 1 Commonwealth v. Hampden, 6 Pick. 'The State u. Youmans, 5 Ind. 280 ; 501. Bank of St. Mary's v. The State, 12 Ga. 2 Ante, § 84, 84 a, 176, 177 a. 475. 8 Story Const. § 1385, 1391 ; Butler v. ^ Ellis u. Whittier, 37 Maine, 548 ; Palmer, 1 Hill, N. Y. 324, 328 ; De Cor- Onondaga c. Briggs, 3 Denio, 173 ; War- dova V. Galveston, 4 Texas, 470. field v. Watkins, 30 Barh. 395. And see * Riggs V. Martin, 5 Pike, 506. See Commonwealth v. McKpnney, 14 Gray, Newkirk v. Chapron, 17 111. 344. 1 ; Billings v. Segar, 11 Mass. 340. 6 Taylor v. Rushing, 2 Stew. 160; i' Saco u. Gm-ney, 34 Maine, 14 ; Rader Dow V. Norris, 4 N. li. 16 ; Palmer v. v. Southeasterly Road Dist. of Union, 7 Conly, 4 Denio, 374 ; Conly v. Palmer, 2 Vroom, 273. Comst. 182. And see McGowen v. Deyo, ii Restall v. London, &c. Railway, Law 8 Barb. 340. Rep. 3 Ex. 141 ; Steamship Co. v. Joliffe, . Burton, Dudley, Ga. 105. Contempts of Court. — Stat- utes against contempts are strictly inter- preted. Maxwell v. Rives, 11 Nev. 213. ^ Pierce's Case, 16 Maine, 256. 8 See Randolph v. The State, 9 Texas, 521 ; post, § 199. ' Sibley v. Smith, 2 Mich. 486 ; Sugar V. Sackett, 13 Ga. 462 ; Rathbun v. Acker, 18 Barb. 393 ; ante, § 165. CHAP. XXII.] WHAT AND WHEN OONTEACT, ETC. §195 mitting a party to testify for himself in his own cause ^ — is to be construed strictly, the reason for this, we have seen,^ is different.^ § 194. Meaning of Strict Interpretation. — Such statutes are to reach no further in meaning than their words ; * no person is to be made subject to them by implication , ^ and all doubts con- cerning their interpretation are to preponderate in favor of the accused.^ Only those transactions are covered by them which are within both their spirit and their letter.^ § 195. Revenue Laws, including Taxation. — It being the duty of all persons to bear their several propoi'tions of the public burden, statutes imposing taxes are not penal, and they should be liberally interpreted.** But connected with and aiding in the levying and collecting of taxes, there may be and are penal statutes, to be construed strictly.^ And so it is with the other classes of revenue laws. Their primary object being the collection of duties,^" not the punishment of crime, they are in the ordinary case construed liberally as being remedial.^! But a crime connected with these laws must, in reason, be like any other, requiring the statute cre- ating it to be strictly construed. ^^ And it is the same of any penal 1 Hotaling ;;. Cronise, 2 Cal. 60; War- ner V. Fowler, 8 Md. 25. 2 Ante, § 189 o. * Granting Franchise. — A statute granting a franchise, as a turnpike char- ter, is to be construed strictly. Ante, § 119; The State v. Clarksville and R. T. P. Co. 2 Sneed, 88. See also Academy of Pine Arts o. Philadelphia, 10 Harris, Pa. 496. TaMng Land. — So of one taking the land of individuals for the public use. Ante, § 119 ; Sharp v. Speir, 4 Hill, N. Y. 76 ; Sharp v. Johnson, 4 Hill, N. Y. 92. See also Rathbun v. Acker, 18 Barb. 393. * Ante, § 119, 189 a, 190 e; People «. Peacock, 98 111. 172. 6 The State v. McOmber, 6 Vt. 215 ; Rex V. Mitchell, 2 East P. C 936, 937 ; Rex V. Hammond, 2 East P. C. 1119, 1 Leach, 4th ed. 444 ; Leonard v. Bosworth, 4 Conn. 421; The State v. Sumner, 10 Vt. 587 ; The State v. Sanford, 1 Nott & McC. 512, 515 ; Rex v. Parker, 2 East P. C. 592, 1 Leach, 4th ed. 320, note ; Rex V. Hickman, 1 Leach, 4th ed. 318, 2 East P. C. 593 ; United States v. Wiggles- worth, 2 Story; 369 ; Rawson u. The State, 19 Conn. 292 ; United States v. Wilson, Bald. 78, 102; The Harriet, 1 Story, 251 ; Bell v. Dole, 11 Johns. 178 ; post, § 220. 6 The Enterprise, 1 Paine, 32 ; United States V. Wigglesworth, 2 Story, 369; The People v. Howell, 4 Johns. 296 ; Com- monwealth V. Macomber, 3 Mass. 254; Kent u. The State, 8 Blackf. 163; post, §218. ' Post, § 230, 232 ; Cearfoss v. The State, 42 Md. 403. 8 Cornwall v. Todd, 38 Conn. 443. But see Daines v. Heath, 3 C. B. 938, 941. And see Alter v. Shepherd, 27 La. An. 207. Special Exemptions. — Correspondingly, therefore, statutes conferring special ex- emptions from the general burdens should be strictly construed. The State v. MiUs, 5 Vroom, 177. See also Commonwealth u. Maryland, 32 Md. 501. 8 Coleman v. Hart, 37 Wis. 180. '" United States v. Twenty-eight Pack- ages, Gilpin, 306, 326. And see Attorney- General V. Radloff, 10 Bxch. 84, 26 Eng. L. & Eq. 413. 1' United States v. Hodson, 10 Wal. 395, 406 ; Cliquot's Champagne, 3 Wal. 114, 145. 12 United States v. Buzzo, 18 Wal. 125. 187 § 195 a INTERPEETATION. [BOOK H. forfeiture in the nature of punishment.^ The general object of revenue laws being remedial, the forfeitures and penalties by which they are enforced in civil forms of action do not, in prin- ciple, require so' strict a construction of the provisions which declare them as is given to laws inflicting imprisonment or death. But surely most of them should be deemed equal in this respect to the statutes which give double damages, and which, we have seen, are interpreted strictly.^ Still the doctrine of the courts appears to be, especially of late, that, even as to these provisions, the revenue laws shall be construed liberally, not in the extreme sense, yet not strictly, but in a sort of equipoise between the two interpretations.^ § 195 a. Costs — are unknowa at the common law ; they are the mere creatures of statutes.* Where they are simply an in- demnity to the party receiving them,^ for his expenditures in the case, and the like, they would seem in reason to be remedial, reqniring a liberal construction ef the statute.^ On the other hand, where they are penal in their nature, the contrary must be the reasonable consequence. The question has not been much illumined by adjudication, but generally the statutes giving costs appear to have been strictly construed.' As to the English doc- trine, says a late writer : * " The Statute of Gloucester, giving costs, was held in one case to be remedial ; ^ and, though else- where it was said that statutes giving costs were to be construed strictly ,1" this dictum has been since declared to be ' hardly con- sistent with the principle upon which the Statute of Gloucester has been interpreted.' " ^^ 1 United States v. Eighty-four Boxes Wigglesworth, 2 Story, 369 ; Dwar. Stat, of Sugar, 7 Pet. 453, 462, 463. And see 2d ed. 642 ; Rex v. Hymen, 7 T. R. 536 ; Clifton V. United States, 4 How. U. S. Walwinw. Smitli, 1 Salk. 177; The Mayor 242. V. Davis, 6 Watts & S. 269. 2 Ante, § 195, note. ■• Crim. Proced. L § 1313 ; The State 8 United States v. Three Tons of Coal, v. Kinne, 41 N. H. 238. 6 Bis. 379; United States v. One Hundred « Harold v. Smith, 5 H. & N. 381. Barrels Spirits, 1 Dil. 49, 2 Abb. U. S. « Durkln's Case, 2 Lewin, 163. 305; UnitedStatesu. "Watts, 1 Bond, 580; ' Dent v. The State, 42 Ala. 514; United States v. Barrels of High Wines, Cone w. Bowles, 1 Salk. 205. 7 Blatch. 459; United States v. Mynderse, 8 wilb. Stat. Law, 231, 232. 7 Blatch. 483 ; Twenty-eight Cases, 2 » Ward v. Snell, 1 H. Bl. 10, 13. Ben. 63 ; United States v. Olney, 1 Abb. '<• Rex v. Glastonby, Cas. temp. Hardw. U. S. 275 ; United States v. Willetts, 5 355, 357; Cone v. Bowles, supra. Ben. 220 ; Taylor v. United States, 3 " Rex o. York, 1 A. & E. 828, 834, by How. U. S. 197. See also Adams v. Ban- Lord Denman, C. J. croft, 3 Sumner, 384 ; United States . Hunn, 27 Conn. 332. to any authority for this dictum. It is a " The State v. Brown, 16 Conn. 54; place where people, though prisoners, Tuttle a. The State, 4 Conn. 68. So, are under the protection of the law, " Receiving." — Keeping possession of a and eat, drink, and sleep. One, there- thing is not within a statute against "re- fore, would find it difficult to suggest a ceiving" it. Attorney- General v. King, reason why it is not both a house and a 5 Price, 195. And, " Spread Awning." dwelling-house. In the facts of this case, — A city ordinance forbidding any per- the jail was used only as a lock-up, and son " to spread any awning," &c., is not it was under the same roof with the violated when the person continues to court-house, — circumstances, perhaps, keep spread an awning spread before, which properly varied the result. The State v. Cleaveland, 3 R. I. IIT. ' Commonwealth u. Hooper, 5 Pick. « Stewart v. Commonwealth, 10 Watts, 42. See post, § 958. 306, decide(J on a city ordinance. 198 CHAP. XXin.] EXPOSITIONS OF THE STRICT. § 210 or imprison any one or more of the crew," the word " crew " was held to include the under-officers as well as the common seamen ; consequently a master committed the offence by imprisoning his first mate.^ "Goods and Merchandise" — "Personal Goods." — The luggage of a steamboat passenger is "goods or merchandise," within a statute against larceny from any vessel in any navigable river ; ^ but the words "personal goods," in another criminal statute, have been held not to include chose» in action? " Materials for Lottery." — Books kept in relation to the pro- ceedings of a lottery are " materials for a lottery." * § 210. " Pedler, Hawker, Petty Chapman." — One who carries about goods, offering them for sale, is held to " trade, deal, and trafi&c " in them, " as a pedler, hawker, or petty chapman." ^ And — " Deal in Selling." — To sell spirituous liquors in a single instance is to "deal in the selling " of them.^ But — " Dealer." — The word " dealer " alone, in a variety of statutes, including criminal ones, is held not to be satisfied by a single in- stance of traffic' Causing False Entry — False Statement. — A woman in England went to a register of births, to have registered the birth of a child. She stated the necessary particulars, every one of which was false ; and, when he had written the entry, she signed it as the person giving the information. This was held to constitute the felony of causing a false entry, within the words of 6 & 7 ^ United States v. Winn, 3 Sumner, adopted ; and the analogy of the com- 209. As to the meaning of the word mon law, in respect to larceny, may well " mariner," see Brush v. Bogardus, 8 furnish the proper rule for decision." See Johns. 157. post, § 344, 345. 2 Stat. 7 & 8 Geo. 4, c. 29, § 17 ; Eex < Commonwealth v. Dana, 2 Met. 329. V. Wright, 7 Car. & P. 159. See post, 5 Merriam v. Langdon, 10 Conn. 460. § 344, 345 ; Chamberlain u. Western See, however. Page v. The State, 6 Misso. Transp. Co. 44 N. Y. 305. 205. 3 United States o. Davis, 5 Mason, » The State v. Paddock, 24 Vt. 312. 356, the court observing : " It is true the And see The State v. Von Glon, 1 McMul. words ' goods or chattels ' may, in the con- 187. For more on this expression and struction of wills, include bonds, notes, others of the sort, see post, § 1016-1018, bank-bills, &c. ; but this is upon the pre- 1089, 1092. sumed intention of the testator, where a ' Carter v. The State, 44 Ala. 29 ; liberal exposition of his words is allow- Overall v. Bezeau, 37 Mich. 506 ; Barton able, and upon principles derived from v. Morris, 10 Philad. 360. And see The the civil and canon law. But in penal State v. Yearby, 82 N. C. 561. statutes a more strict construction is 199 § 211 rNTEEPKETATION. [BOOK H. "Will. 4, c. 86, § 43, " shall wilfully insert or cause to be inserted, &c., any false entry of any birth," &c, ; and not merely the mis- demeanor, under § 41, of making a " false statement." ^ § 211. " Stage, &o. of Manufacture." — Goods remain in "a stage, process, or progress of manufacture," after the texture is com- plete, until brought into a fit condition for sale.^ " "Within ten Feet " of Road, Foot-path. — Where a statute pro- hibits the erection of buildings within ten feet of a particular road, and directs that the foot-path be deemed part of the road, a building within ten feet of the foot-path is within the prohibition.^ " Deliver Manifest." — The captain of a vessel does not deliver a manifest of his cargo, within a statutory requirement, unless the manifest he delivers is true.* " Disturb Congregation." — If it is made penal to " disturb any congregation assembled in any church, meeting-house, or other place of religious worship," a Methodist camp-meeting, on camp- ground, at times when religious services are not actually pro- gressing, is within the protection.^ " ■Woman." — A girl under twelve years of age, not attained to puberty, is a "woman," within the former statute of Virginia making it felony, punishable by death, for a slave, free negro, or mulatto to attempt to ravish a white woman.^ But such a girl is not included in the word " woman " in every statute of this sort.' Sale of Services. — To sell the services of a slave is to sell the slave within a former act to prevent the introduction of this class of persons into the State.^ So — ( " Lottery Ticket." — A quarter-ticket in a lottery is a lottery ticket.^ And — " Mould, &c. adapted to Coining." — A statute against being pos- sessed of any mould, pattern, die, &c., adapted to coining, is 1 Reg. V. Dewitt, 2 Car. & K. 905. 624. More particularly, see Crim. Law, And see Reg. v. Brown, 2 Car. & K. 504 ; II. § 302-305. Smith V. The State, 5 Humph. 163 ; Rex ^ Commonwealth v. Watts, 4 Leigh, V. Harley, 4 Car. & P. 369. 672 ; Charles v. The State, 6 Bng. 389, 2 Rex V. Woodhead, 1 Moody & R. 406, 410. 549. 7 Commonwealth !). Bennet, 2 Va. Cas. 8 Rex V. Gregory, 2 Nev. & M. 478, 5 235. B. & Ad. 655. 8 Link !■. Beuner, 3 Caines, 325. * Phile V. The Anna, 1 Dall. 197. » Freleigh v. The State, 8 Misso. 608. ' Commonwealth v, Jennings, 3 Grat. 200 CHAP. XXin.] EXPOSITIONS OF THE STRICT. 212 violated by having one half, or any smaller part, of such appa- ratus,^ or the apparatus to make one side only of a counterfeit coin.2 § 212. Thirdly. It is not a violation of the rule of strict con- strudtion to give the words of a statute a reasonable meaning, according to the intent of the makers, disregarding captious objec- tions, and even the demands of an exact grammatical propriety? Thus, — "Person" — (State — Corporation). — In this class of statutes as in others, the State,* United States,^ or a corporation^ may be included in the word " person." But such is not necessarily the construction ; "^ as, for example, not in every statute has the word " person " been held to extend to a corporation.^ The rule would seem to be, that prima facie it does,^ because a corporation is an artificial person created by the law ; '" but considerations of the subject, object, and connected words of the particular statute may lead to the contrary result.^^ So, — 1 The State v. Griffln, 18 Vt. 198. 2 Commonwealth u. Kent, 6 Met. 221. A Part, in Larceny. — See, under Stat. 14 Geo. 2, 0. 6, as to kiUing a sheep with intent to steal a part of the carcass, Rex V. Williams, 1 Moody, 107 ; Rex v. Clay, Russ. & Ry. 387. 3 For illustrations of this doctrine, see the cases cited to this and the next four sections; also Commonwealth v. Martin, 17 Mass. 359 ; Commonwealth v. Keniston, 5 Pick. 420 ; The State v. Mairs, Coxe, 453 ; Rex v. Atkinson, Russ. & Ry. 104; Rex v. Harris, 7 Car. & P. 446; Rex V. Shadbolt, 5 Car. & P. 504 ; Com- monwealth V. Loring, 8 Pick. 370. * Stewart v. The State, 4 Blackf. 171 ; Martin v. The State, 24 Texas, 61. 5 The State v. Herold, 9 Kan. 194. ^ Germania v. The State, 7 Md. 1 ; Planters and Merchants' Bank o. An- drews, 8 Port. 404 ; People v. Utica Insur- ance Co., 15 Johns. 358, 381 ; Pisher v. Horicon Iron and Man.' Co., 10 Wis. 351 ; Miller u. Commonwealth, 27 Grat. 110; People V. May, 27 Barb. 238 ; Beaston v. Farmers' Bank, 12 Pet. 102, 134; Society, &c. V. New Haven, 8 Wheat. 464 ; Olcott V. Tioga Raiboad, 20 N. Y. 210 ; Bartree V. Houston, &c. Raikoad, 36 Texas, 648 ; Norris v. The State, 25 Ohio State, 217; Newcastle Corporation, 12 CI. & P. 402; Memphis w. Laski, 9 Heisk. 511. See The State V. Ohio and Mississippi Railroad, 23 Ind. .362. Of this there seems to have been formerly some doubt. See Rex v. Harrison, 1 Leach, 4th ed. 180, 2 East P. C. 926, 988 ; Rex v. Jones, 1 Leach, 4th ed. 366, 2 East P. C. 991. ' The State v. Bancroft, 22 Kan. 170 ; In re Fox, 52 N. Y. 530; United States v. Fox, 94 U. S. 315. 8 The State v. Cincinnati Fertilizer Co. 24 Ohio State, 611, a case which in some of the other States would probably be held the other way. 3 Miller v. Commonwealth, 27 Grat. 110; In re Oregon Bulletin Publishing, &c. Co. 13 Bankr. Reg. 199 ; Douglass v. Pacific Mail Steamship Co. 4 Cal. 304; Northwestern Fertilizing Co. e. Hyde Park, 3 Bis. 480. 1° Crim. Law, 1. § 417 ; Louisville, &c. Railroad v. Commonwealth, 1 Bush, 250 ; Douglass V. Pacific Mail Steamship Co., 4 Cal. 304. 1' Pharmaceutical Society v. London, &c. Supply Assoc. 5 Ap. Cas. 857, in which the H. of L. held the word " per- son " in 31 & 32 Vict., c. 121, not to in- 201 § 213 INTEEPRBTATIOSr. [BOOK n. Continued — (Negro — Indian — Judge). — A negro,^ Indian ,2 or judge holding court,^ may be comprehended under this word " person." Again, — Masculine includes Feminine — (" His " — " Man " — " Woman "). — A woman may be meant by the masculine pronoun "his."* And, in a statute not penal,^ probably also in a penal one, she may be by the word " man." "Sheep." — The word " sheep " may include a ewe® or a lamb." And — "Cattle" — may comprehend horses,^ geldings,^ asses,^" pigs," and sheep.i^ Moreover, — § 213. Singular and Plural. — The singular number may be comprehended in the plural. For example, — "Bank-notes," "Bills obligatory" — (Larceny). — A statute making it felony to purloin .from the post-office "bank-woies" is broken by taking a single bank-note .^^ And one punishing the larceny of " hills obligatory " is infringed when a single bill obligatory is stolen." So, — " Tippling-houses " — (Lord's Day). — Under a statute declaring it an offence " to keep open tippling-AoMses on the Sabbath day," a person may incur the guilt by so keeping open one tippling- house.^^ But, — "House," " Dwelling-house." ^ Between "house" and "dwell- ing-house " there is a distinction which, though nice, is palpable in the law.^® Therefore when the legislature had taken away clergy from the felony of burning a dwelling-ho\xs,Q, one con- clude a corporation, sustaining the Court ' Rex v. Moyle, 2 East P. C. 1076. of Appeal in 5 Q. B. D. 310, and overrul- 9 Rex v. Mott, 2 East P. C. 1075, 1 ing the Queen's Bench division in 4 Q. Leach, 4th ed. 73, note. B. D. 313 ; Saint Leonards, Shoreditch, lo Rex v. Whitney, 1 Moody, 3. V. Pranklin, 3 C. P. D. 377 ; Common- " Rex v. Chappie, Russ. & Ry. 77 ; wealth V. Phoenix Bank, 11 Met. 129, Decatur Bank v. St. Louis Bank, 21 Wal. 149. 294. 1 The State v. Peter, 8 Jones, N. C. 12 United States v. Mattock, 2 Saw. 148. 19 ; Hammond v. The State, 14 Md. 135. See post, § 245-248. ^ United States v. Shaw-mux, 2 Saw. is jjex v. Hassel, 1 Leach, 4th ed. 1, 2 364. East P. C. 598. ' Bass V. Irvin, 49 Ga. 436. '* Commonwealth v. Messinger, 1 Binn. * Rex V. Smith, Russ. & Ry. 267. 273. 6 Smith V. Allen, 31 Ark. 268. « Hall v. The State, 3 Kelly, 18. So, 5 Reg. V. Barran, Jebb, 245 ; Reg. v. in another sort of case, under a grant to Bannam, 1 Crawf. & Dix C. C. 147. " orphans " a single orphan will take. ' Reg. V. Spicer, 1 Car. & K. 699 ; The Averit 0. AUeam, 23 Ga. 382. State V. Tootle, 2 Harring, Del. 541. w Post, §§ 277, 289. 202 CHAP. XXIII.] EXPOSITIONS OF THE STKICT. § 215 victed of burning a house, omitting the word " dwelling," was held not to be excluded therefrom.' Again, — § 214. " Demolish " — " Destroy." — To consume a house by fire is to demolish it ; ^ and to destroy the parts of a thrashing ma- chine, which the owner has taken down in apprehension of a mob, is to destroy the machine.^ " Similar Pieces " — (Counterfeiting). — A statute against having in possession ten similar pieces of gold or silver counterfeit coin is violated if the offender has ten pieces of either kind, though not all of the same denomination.* standing a Jack. — Under the prohibition of standing a jack without license, and letting him to mares for profit and hire, an unlicensed standing under a contract to purchase the mules at a price below their value, was held to constitute the offence.^ § 215. False Grammar — and other verbal inaccuracies no more impair a statute which is to be construed strictly than any other.^ For example, — " Sell from." — An Alabama act made it punishable to " buy, sell, or receive from any slave " certain things without his mas- ter's consent. And it was held to be infringed by a sale to the slave ; for its obvious meaning should not be defeated by the in- accurate use of a preposition.^ So — Rejecting " of" — (Carnal Abuse). — In the following statute of Missouri, the second "of" — printed in italics — is rejected in the construction : " If any guardian of any white female under the age of eighteen years, or of any other person to whose care or protection any such female shall have been confided, shall defile her by carnally knowing her," &c. ; and thus its penalties 1 The State v. Sutcliffe, 4 Strob. 372. * Brown v. Commonwealth, 8 Mass. But see Commonwealth v. Posey, 4 Call, 59, 71. And see Commonwealth v. Whit- 109. marsh, 4 Pick. 233 ; Commonwealth v. 2 Reg. o. Howell, 9 Car. "& P. 437 ; Smith, 7 Pick. 137. Yet, consistently Reg. o. Harris, Car. & M. 661. And see with this, the court said in Brown v. Com- Reg. V. Bowen, 1 Den. C. C. 22. monwealth : " To be convicted of the 8 Rex V. Mackerel, 4 Car. & P. 448. crime, the prisoner must be proved to And see Rex v. Fidler, 4 Car. & P. 449. have had in his possession at least ten A similar rule prevails as to the halves of gold pieces, or ten silver pieces." p. 71. bank-notes cut apart, and so sent in a Sedgwick, J. A"nd see ante, § 94, 95 ; letter for greater safety. Rex v. Mead, Crim. Law, II § 286, 288. 4 Car. & P. 535. Destroy Vessel. — As ^ Commonwealth v. Harris, 8 B. Monr. to what is destroying a vessel, see United 373. States V. Johns, 1 Wash. C. C. 863; Crim. « Ante, § 79, 81 ; post, § 243. Law, I. § 570, note. ' Worrell v. The State, 12 Ala. 732. 203 § 216 TNTEEPEETATION. [BOOK II. extend to persons in care who are not guardians, as well as to those who are.^ § 216. On the other hand, — Fourthly. The words of a penal or other statute requiring a strict construction must not he extended heyond what they will fairly and reasonably hear? Thus, — "Beat" — "Assault." — Pulling a person to the ground and holding him there is not " beating " him.^ And where an act makes an assault indictable it means a real assault, not a con- structive one.'* "Wound inflicted." — A wound incurred by forcing a part of one's body against a weapon with which another is attacking him, is not a wound inflicted by the other.^ " Ship or Vessel." — An open boat is not a " ship or vessel," within the acts of Congress of 1820 and 1823, prohibiting com- mercial intercourse with the British colonies.^ " Stack of Straw." — A stack, of which the lower part is cole- seed '' straw, and the upper is wheat stubble, is not a stack of straw.^ "Officer" — (Resisting). — One specially deputed by a justice of the peace, under authority of a statute, to serve a particular process, the Vermont court has held, is not an " ofiQcer " within a provision making it criminal to "impede or resist any officer" in the execution of his office.^ ' The State v. AcufE, 6 Misso. 54. Leach, 4th ed. 680, 2 East P. C. 586 ; Eex 2 Tor illustrations of this doctrine, see, v. Davis, 2 East P. C. 593, 1 Leach, 4th besides the other cases cited to this sec- ed. 496, note ; The State «. Pinchback, 2 tion and the next, the following : The Mill, 128 ; Leonard v. Bosworth, 4 Conn. State f. Jim, 3 Murph. 3 ; Rex v. Snell, 421 ; Gulp v. The State, 1 Port. 33 ; Rex 2 Moody & R. 44 ; The State v. Smith, v. Pike, 1 Leach, 4th ed. 317, 2 East P. C. Cheves, 157 ; Eex v. Mountford, 7 Car. & 647 ; Wash v. The State, 14 Sm. & M. P. 242, 1 Moody, 441 ; Rex v. Aris,6 Car. 120 ; United States v. Pearce, 2 McLean, & P. 348 ; United States «. Tenbroek, 2 14 ; Reg. v. Thorn, Car. & M. 206 ; Moore Wheat. 248 ; Williams v. The State, 12 v. The State, 13 Sm. & M. 259. Sm. & M. 58; Commonwealth v. Catlin, s Rgg. „. Hale, 2 Car. & K. 326. 1 Mass. 8 ; Willington v. Stearns, 1 Pick. * The State v. Freels, 3 Humph. 228 ; 497 ; Eeg. v. Deneny, Jebb, 255 ; Rex v. Evans o. The State, 1 Humph. 394 ; Pateman, Russ. & Ry. 455 ; Reg. v. San- Humphries v. The State, 5 Misso. 203. ders, 9 Car. & P. 79 ; Lord Duffus's Case, ^ Rex w. Beckett, 1 Moody & R. 526. 2 Comyns, 440 ; Rex u. Nixon, 7 Car. & For the meaning of " Wound," see post, P. 442; Calvert v. Commonwealth, 5 B. § 314. Monr. 264 ; Rex w. Richardson, 6 Car. & 6 United States v. An Open Boat and P. 835; The State v. Briley, 8 Port. 472 ; Lading, 5 Mason, 120. Rex V. Wakeling, Russ. & Ry. 504 ; Reg. ' A species of cabbage. V. Adams, Car. & M. 299 ; Hiokerson « Rex v. Tottenham, 7 Car. & P. 237. V. Benson, 8 Misso. 8 ; The State v. Shoe- 9 The State v. McOmber, 6 "Vt. 215. maker, 7 Misso. 177; Rex v. Palmer, 2 Possibly not all courts would so hold; 204 CHAP. XXriI.] EXPOSITIONS OF THE STRICT. § 218 " Implements of Gaming." — Game-cocks, being live animals, are not " implements " of gaming.^ Located "in" — ("Wooden Building). — An act made penal, among other things, the erection, to any building, of a wooden addition having " in " it a chimney or fireplace. And an addi- tion warmed from a chimney and fireplace put solely in the old part, for the exclusive accommodation of the new, was held not to be within the inhibition.^ § 217. " Security for. Money." -r- Money, which means simply what is legal tender,^ is not indicated by the words " security for money." * "Instrument, Arms," &o. ■ — (Escape). — A writing, informing a prisoner that he has a friend, and may be released from confine- ment, is not "any instrument, arms, or other thing calculated to aid his escape."* " Alter " — (Forgery). — One does not " alter " ^ bank-bills, who so cuts them as, by putting the parts together, to make a greater number.'' " Countersigned," &o. — (Forgery). — A counterfeit bill on an existing bank, the cashier's name wherein is fictitious, is not in the similitude of a bank-bill "countersigned by the cashier thereof." 8 "Greater or other Fees" — (Extortion). — A statute against " any officer taking greater or other fees " than are prescribed in it, is not violated by one who, out of office, receives such fees for services rendered while in office.^ " Stack of Wheat." — Wheat thrashed from the straw is not a " stack of wheat." lo § 218. Fifthly. If, in a criminal case requiring the strict con- struction of a statute, the court entertains a reasonable doubt of its meaning, this doubt will prevail in favor of the aceused:^ — there being room for the opinion, thrft, 6 Hughes v. The State, 1 Eng 131 though the deputy was not an officer for « Grim. Law, II. § 573-578 general purposes, he was such for this 7 Commonwealth ;;. Hay ward, 10 Mass particular occasion. Yet see Kavanaugh 34 V. The State, 41 Ala. 399. 8 Commonwealth v. Boynton, 2 Mass. 1 Coohdge V. Choate, 11 Met. 79. See 77. post, §319. » Gallagher!,.Neal,3Pa.l83. Seeante, 8 Raggett «. The State, 4 Conn. 60. § 171, note ; Crim. Law, II. § 390 et seq. fjOBt, § 346. 10 Commonwealth v. Erskine, 8 Grat. Rex V. Skutt, 1 Leach, 4th ed. 106, 624. See ante S 216 2 East P. C. 582. "Ante, §194. 205 § 220 INTEEPEETATION. [BOOK U. ■ Not multiply Felonies. — Within this doctrine, the court will lean to a construction which will not multiply felonies.^ Like- wise — Computation of Time in Sentence. — The day on which a prisoner is sentenced will be reckoned as a part of his term of imprison- ment.^ So, also, — " Until or UntU " — (Deserting Seamen). — Under an act of Con- gress authorizing the commitment of a deserting seaman " to the house of correction or common jail . . . there to remain until the ship or vessel shall be ready to proceed on her voyage, or until the master shall require his discharge,"' the seaman cannot be detained after the vessel has sailed.^ Now, — § 219. Concerning the Propositions. — The foregoing proposi- tions, with their illustrations, bring to view not many departures, in strict interpretation, from what would be held in liberal, though they do some. They are chiefly helpful as showing what meanings the words may take under the pressure of ordinary rules of interpretation, without violating the principles govern- ing penal and other like laws, which require a strict construction. It is our next proposition, which, more than any other, distin- guishes the strict interpretation from the liberal ; namely, — § 220. Sixthly. In strict construction, no case is to be brought within the statute unless completely within its words. Or, — Otherwise expressed — (Within Mischief, not Words) . — As stated by Hawkins, the doctrine is : " No parallel case, which comes within the same mischief, shall be construed to be within the purview of it [the statute], unless it can be brought within the meaning of the words." In slightly different language, though a case of this sort is fully within the mischief to be remedied, and is even of the same class and within the same rea- son as other cases enumerated in the statute, construction will not be permitted to bring it within the statute unless it is also within the statutory words." Thus, — ; 1 Commonwealth w. Maeomber, 3 Mass. to : Rex v. Hammond, 2 East P. C. 1119, 254 ; Commonwealth v. Barlow, 4 Mass. 1 Leach, 4th ed. 444 ; Leonard v. Bos- 439. worth, 4 Conn. 421 ; Hall o. The State, 2 Commonwealth v. Keulston, 5 Pick. 20 Ohio, 7 ; Rex v. Senior, 1 Leach, 4th 420. See ante, § 105-111. ed. 496, 2 East P. C. 593 ; Melody v. Eeab, 3 The State v. Patterson, T. U. P. 4 Mass. 471, 473. For further illustra- Charl. 311. tions, see the cases cited to the five next * 2 Hawk. P. C, Curw. ed., c. 18, § 16. following sections ; also Rex u. Ellis, 8 ^ Ante, § 194 and places there referred D. & R. 173 ; The State v. Lovett, 3 Vt. 206 CHAP. XXin.J EXPOSITIONS OP THE STBIOT. § 222 § 221. " Breaking " or not — (Burglary). — Under WOrds making punishable those who, with intent to commit any felony, " shall in the night-time enter without breaking, or in the daytime break and enter, any warehouse," an entry in the night by breaking was held not to be included.^ Place not within Buumeration — (Gaming). — It being forbidden to set up a faro-table " in any dwelling-house, out-house, or place occupied by any tavern-keeper, retailer of wine, spirituous liquors, beer, or cider," one in a locality not in terms mentioned — as, for instance, in a house used solely for this purpose — was held not to be prohibited.^ One Party only prohibited — (Living in Fornication). — It was provided in Tennessee, that, " if any white man or woman shall presume to live with any negro, mustee, or mulatto man or woman, as man and wife, each and every of the parties so offend- ing shall be liable to forfeit," &c. And this was held to make the act penal only in the white person, not also in the other.^ Clergy excluded under Circumstances. — Where a statute ousts clergy from an offence when committed under specified circum- stances, all, for a case to be within it, must transpire in the county of the trial.* Again, — § 222. Time for Penalty added to Time of Delay — (Recording Marriage). — An Indiana statute required the official person who solemnizes a marriage, to file the marriage certificate in the proper office within three months from its solemnization, under a penalty, for the delay after the first three months, of fiye dollars a month. And it was held, that no criminal liability arises until 110; Rex a. Paddle, Russ. & By. 484; v. Savage, 32 Maine, 583; Rex v. Boss, Carpenter v. People, 8 Barb. 603 ; The Russ. & By. 10, 2 East P. C. 1067 ; Rex State V. Cooper, 16 Vt. 551 ; Hamuel .;. v. Ellis, 5 B. & G. 395, 8 D. & K. 173;' The State, 5 Misso. 260; Sharpe's Case, United States v. Nott,' 1 McLean, 499; 2 Lewin, 233 ; Kyle v. The State, 10 Ala. The State v. demons, 3 Dev. 472 ; Wil- 236 ; 2 East P. C. 919 ; Hawkins v. The liams v. Matthews, 3 Cow. 252 ;' The State, 3 Stew. & P. 63 ; The State v. Smith- State v. Black, 9 Ire. 378 ; Commonwealth erman, lire. 14; Rex w. Remnant, 5 T. B. v. Gee, 6 Cush. 174; United States o. 169 ; Bex v. MelUsh, Buss. & Ry. 80 ; Beg. Hiler, Morris, 3.30. V. Turner, 8 Car. & P. 755; Beg. v. Scott, i Commonwealth v. Carrol, 8 Mass. 3 Q. B. 543 ; Campbell v. Commonwealth, 490. 2 Rob. Va. 791; The State v. Curtis, 5 2 Baker v. The State, 2 Har. & J. 5. Humph. 601 ; Commonwealth v. Barrett, = The State v. Brady, 9 Humph. 74. 9 Leigh, 666; United States v. An Open See and compare ante, § 135, 136, 139, 140, Boat and Lading, 5 Mason, 120 ; Rex v. 145; Crim. Law, I. § 225-228, 657-659. Watson, 2 East P. C. 562, doubted in Rex « 2 East P. C. 773. V. Lavender, 2 East P. C. 566; The State 207 § 223 INTERPRETATION. [BOOK II. the lapse of four months; that is, until the full penalty for a month's delay is matured.^ " Cord of "Wood." — Where a statute, regulating the sale of cord- wood, imposed a penalty of so much per cord " for every cord of wood bought and sold " contrary to its provisions, the court held that no penalty could be incurred in the purchase or sale of less than a cord.^ " Free Negro," omitted from Penal Part. — By a former Georgia statute, " if any slave, free negro, Indian," &c., shall do certain things mentioned, " any such slave or slaves, and his and their accomplices," shall suffer death. This was held not to apply to a free negro, who was mentioned only in the first clause.* Contemplated Circumstances w^anting — (Credit to Student). — A statute provided, " that no person or persons shall give credit to any student of Yale College, being a minor, without the consent in writing of his parents or guardian, or of such officer or officers of the college as may he authorized hy the government thereof to act in such cases, except for washing and medical aid." And it was held, that, to render the commission of- the offence possible, authority must have been conferred on some officer of the college, " by the government thereof," to give or withhold the consent.* "Privately" — (Larceny). — A statute against "privately" stealing is not violated when force is used ; ^ though, in matter of proof, the prosecutor need not show affirmatively that there was no force.® So — § 223. "Suffer" — (Animals at Large). — An enactment that " no swine shall be suffered to go at large " is not violated when the animals escape, without the owner's will.' " Adjoining." — Grounds separated from a dwelling-house by a narrow walk, and a paling with a gate in it, are not " adjoining " the dwelling-house.^ 1 Kent V. The State, 8 Blackf. 163 ; 1 « Morse v. The State, 6 Oonn. 9. Bishop Mar. and Div. § 346. 5 Rex v. Cartwright, 2 East P. C. 641 ; 2 Pray v. Bufbank, 12 N. H. 267. Rex v. Jones, 2 East P. C. 641. « Ex parte George, T. U. P. Charl. 80. ^ Rex v. Matthews, 2 East P. C. 642. For another illustration of the same prln- ' Commonwealth v. Fourteen Hogs, 10 ciple, see The State v. Roberts, 1 Tread. S. & R. 393. 116. So also The State v. Conover, 8 8 stat. 7 & 8 Geo. 4, c. 29, § 38 ; Bex v. Harring. Del. 565 ; The State v. Moseley, Hodges, Moody & M. 341. 14 Ala. 390 ; Butler v. Cook, 14 Ala. 576; Frierson v. Hewitt, 2 Hill S. C. 499. 208 CHAP. XXm.J EXPOSITION OF THE STRICT. § 224 Place and Distance specified — (Liquor Laws). — Intoxicating liquor was forbidden to be sold at a " booth, tent, wagon, huck- ster's shop, or other place erected, brought, kept, continued, or maintained within the distance aforesaid." And it was held, that a sale within the prohibited distance was no offence, unless made at one of the specified places.^ Bills of Non-existing Bank — (Forgery). — A statute against passing bills " purporting to be " the bills " of a bank, company, or association, which never did in fact exist," is not infringed by fraudulently passing bills of a bank in fact existing, though unin- corporated and Ulegal.2 "Threatening" Officer acting unauthorized — (Blection Frauds). — One who resisted by threats a demand made upon his father, by the judges of an election, to answer questions they had no right to put, was held not to have committed the statutory offence of threatening an of&cer of the elections in the discharge of his duty ; because the judges, in putting the questions, were not in the discharge of their duty.^ " Begin to destroy " — (Malicious Mischief). — Under the Eng- lish statute of 7 & 8 Geo. 4, c. 30, § 8, against beginning to de- stroy any house (" shall unlawfully and with force demolish, pull down, or destroy, or begin to demolish, pull down, or destroy," &c.), one cannot be convicted unless he intended to proceed so far as to leave really no house.* "Maintain Owners no Right of Property." — Under a statute pun- ishing " any free person who, by speaking or writing, shall maintain that owners have not right of property in their slaves," a simple denial of the right was adjudged insufficient. The denial must be maintained, which means something more ; and the right denied must be a legal, not simply a moral right.^ But § 224. " Cut Down " — " Destroy " — (Trees — Vessel). — This sort of doctrine will not be unreasonably extended. For ex- ample, it having been made by statute criminal to "unlawfully and maliciously cut down or otherwise destroy any trees," a total 1 Bouser v. The State, Smith, Ind. 408. 4 Car. & P. 237. And see Reg. v. Howell, See, as to the constitutionaUty of this sort 9 Car. & P. 437 ; Reg. v. Pliillips, 2 Moody, of legislation, Fetter v. Wilt, 10 Wright, 252. For other cases requiring the intent, ^^■J^^T- as well as the act, to come within the Cahoou V. The State, 8 Ohio, 537. statute, see Commonwealth v. Morse, 2 ' Commonwealth v. Gibbe, 4 Ball. 253. Mass. 128; People v. Griffin, 2 Barb. 427. * Reg. V. Adams, Car. & M. 299 ; Rex 5 Bacon u. Commonwealth, 7 Grat. V. Price, 5 Car. & P. 510 ; Reg. v. Thomas, 602. 14 209 § 225 INTBEPEETATION. [BOOK II. destruction was adjudged unnecessary. It was sufficient if the tree was " cut down," though the stump left could be grafted.^ So in the act of Congress punishing with death those who destroy vessels, the word "destroy" has been held not to require an irreparable disruption of all the parts ; it is generic in meaning, and includes " castaway." In legal contemplation, " to ' destroy a vessel ' is to unfit her for service, beyond the hopes of recovery by ordinary means." ^ Still, as many of the foregoing illustrations show, — § 225. Fully done. — The act forbidden by a statute must be fully done in all its parts, else the offence is not complete ;3 though, indeed, there may be an indictable attempt,* For example, — " Sell." — A statute made it criminal knowingly to sell " any free person for a slave." Thereupon one transferred to another the possession of a free negro, under a written agreement to be paid the price ; with the proviso, that the vendee should take him on trial for a month, and at the end thereof make the pay- ment if he liked him, and receive a bill of sale. But before the month elapsed, the negro ran away, and the court held, that the offence was not committed, the sale not having been finished." So,— " Persuading to enlist " — (Treason). — Where it was made crim- inal knowingly and willingly to " aid or assist any enemies, at open war with this State, by persuading others to enlist for that purpose," the offence was adjudged not complete until the person persuaded had actually enlisted.^ In like manner, — "Administer Poison" — (Attempt to murder). — A statute against administering poison with intent to murder is not violated until something more is done than a mere delivery of it from the party administering ; though perhaps it need not be taken into the stomach.' Again, — 1 Eex V. Taylor, Euaa. & Ry. 373. See Mayers «. The State, 3 Eng. 222 ; United ante, § 214, 223. States v. Twenty-eight Packages, Gilpin, 2 United States v. Johns, 1 Wash. C. C. 306. See Commonwealth v. Hancoclc 363, 372. Free Bridge, 2 Gray, 58. 8 Leonard v. Bosworth, 4 Conn. 421 ; ^ Ante, § 138, 140. Redman v. Sanders, 2 Dana, 68 ; United ^ Commonwealth v. Nix, 11 Leigh, 636. States V. Battiete, 2 Sumner, 240 ; Bare- Aa to what acts constitute a sale, see post, field V. The State, 14 Ala. 603 ; People v. § 1013-1015. Genung, 11 Wend. 18 ; Reg. v. Chan-etie, " Respublica v. Robert, 1 Dall. 39. 13 Jur. 450, 18 Law J. n. s. M. C. 100 ; ' Rex v. Cadman, 1 Moody, 114, Car. 210 CHAP. XXni.] EXPOSITION OF THE STEICT. § 225 " Coin resembling," &c. — (Counterfeiting). — Under a statute against buying " any false or counterfeit coin, resembling, or ap- parently intended to resemble or pass for, any of the king's cur- rent gold or silver coin, at or for a lower rate or value than the same by its denomination imports," the offence is possible only where the counterfeits have been finished ready for circulation.^ Crira. Law, 3d ed. 237. Carrington says. Moody says, they " seemed to think swal- the judges thought it necessary that the lowing not essential." poison should be taken into the stomach ; ^ Beg. u. Bradford, 2 Crawf . & Diz C. C. 41. 211 227 INTERPRETATION. [BOOK U. CHAPTER XXIV. THE LIBEEAL INTERPRETATION WHICH MINGLES "WITH THE STRICT. § 226. Already — Here. — We have already seen, in general, how the liberal interpretation mingles with the strict, as applied to different clauses and parts, and even to the same parts, of the same statute.^ Here we are to extend the doctrine into some details. Doctrine defined. — The doctrine is, that, when from any of the recognized reasons the main provisions of a statute are to be con- strued strictly, the same reasons require those which create exceptions, exemptions, and the like, to be interpreted liberally. And, beyond this, the strict construction as well as, and even more than, the liberal, excepts and exempts, without the aid of any statutory words, whatever, while within the terms of a stat- ute, is not within its motives and purposes. To what Clauses. — The most familiar applications of this doc- trine are to criminal statutes, and from them the illustrations of this chapter will be chiefly drawn. But it is applied equally to all other statutes which are strictly construed. Thus, — § 227. Liberal for Defendants. — As already seen, while a crimi- nal statute is to be construed strictly in those parts which are against defendants, its construction is to be liberal in those which are in their favor ; that is, for their ease or exemption.^ And an entire statute, made for their benefit or defence, is equally to be rendered in the same liberal way. To illustrate, — Counsel in Treason. — While, in England, the common law denied counsel to persons on their trials for treason or felony ,3 the statute of 7 Will. 3, o. 3, § 1, was passed. It provided, that, in indictments for high treason, « all and every person, &c., shall ' Ante, § 196-198. Commonwealth, 6 Dana, 838; Dull v. 2 Ante, § 196, 197. And see Reward People, 4 Denlo, 91. V. The State, 13 Sm. & M. 261 ; Sneed v. » Crim. Proced. I. § 14-19; 5 Howell St. Tr. 471, note. 212 CHAP. XXIV.] LIBERAL WITH STRICT. § 229 be received and admitted to make his and their full defence by counsel, &c. ; and the court, &c., is required immediately, upon his or their request, to assign to such person and persons such and so many counsel, not exceeding two, as the person or per- sons shall desire." This provision, the reader perceives, was in favor of the accused ; to be, therefore, liberally construed. So it was held, that, where more persons than one were indicted jointly, each was entitled to two counsel.^ Again, — § 228. " Name subscribed " — (Threatening Letters). — Under the English statutes of 9 Geo. 1, c. 22, § 1, and 27 Geo. 2, c. 15, against sending threatening letters ^ " without any name subscribed thereto, or signed with a fictitious name," a threatening letter, to be within the inhibition, must be not only within these statu- tory words but within their spirit also. If the letter in question, while not signed by any name real or fictitious, is in the undis- guised handwriting of the accused, and the person threatened is familiar with it, — or, if it contains allusions showing that the sender meant to make known who he was, — the statutory offence is not committed ; because, although the letter is " without any name subscribed thereto " within the words of the act, it is still not unsigned within its spirit.^ The provision, requiring the name to be fictitious or unsigned, the reader perceives, creates an exemption in favor of the prisoner ; so that, by the hberal con- struction demanded, facts within the spirit of the words are equiv- alent to those within the words. So, on the other hand, — § 229. "Divorced" — (Proviso in Polygamy). — If the statute has an exception or proviso in the defendant's favor, he, for his protection, need only bring himself within its letter, regardless of its spirit. For example, the first English act against polygamy excepted out of its penalties persons " divorced ; " * and this was held, correctly, yet contrary to the entire policy of the law, to shield from punishment those who should contract second mar- riages after a judicial separation from bed and board, such a sepa- ration being called a divorce.^ " It is also," adds East, " agreed, •that a second marriage, pending an appeal from a divorce a vin- culo matrimonii, is aided by this exception ; though the appeal 1 1 East P. C. 111. And see Grim. " Post, § 579 ; 1 Bishop Mar. & Div. Proeed. I. § 1040. § 297. 2 Grim. Law, II. § 1200. 6 3 Jngt. 89 ; 1 Hale P. C. 694 ; Porter's " Rex V. Heming, 2 East P. C. 1116, 1 Case, Cro. Car. 461 ; Middleton's Case, J. Leach, 4th ed. 445, note. Kel. 27. 213 § 231 INTERPRETATION. [BOOK II. suspends, and possibly may repeal, the sentence ; in which case the second marriage would of course be invalid." ^ Hence, — § 230. Contract and Expand. — The doctrine is, that, in favor of accused persons, criminal statutes may be either, according to the form of the provision, contracted or expanded by interpreta- tion in their meanings, so as to exempt from punishment those who are not within their spirit and purpose ; while, at the same time, as the last section shows, and as explained in the last chap- ter, they can never be expanded against the accused, so as to bring within their penalties any person who is not within their letter. Otherwise expressed, whenever the thing done is not within the mischief evidently intended by the statute, though it is within its words, the doer is not punishable ; while, on the other hand, one may defend himself by showing, if he can, that either the main part of the enactment, or some exceptive clause thereof, is so unguardedly worded as to open an escape for him through the letter, his act being still a complete violation of its spirit. Further to particularize, — § 231. First. In favor of defendants, criminal statutes will he con- tracted hy interpretation, so as to avoid punishing those who, though breaking their letter, have not violated also their spirit. Thus, — Cutting short in Effect. — Their effect will be cut short, as ex- plained in a previous chapter.^ Within this principle, — Wilful Transgression — Statutes in general terms may be re- stricted by interpretation to cases in which the transgression was wilful.^ In this way, too, — False Pretences, &c. — Interpretation greatly restricts the stat- utes against false pretences ;* indeed, the books are full of illus- trations of the same principle.^ And, generally, — Meaning of Makers. — If the thing done is not within the intention of the law-makers, it is not within the law, though within its letter.^ 1 1 East P. C. 467. * See ante, § 133 ; also People v. Stet- 2 Ante, § 122 et seq. son, 4 Barb. 151 ; Eex v. Douglas, 1 Moody, 8 Ante, § 131, 132; Crim. Proced. I. 462 ; Reg. v. Henderson, Car. & M, 328. § 522, 523; Reg. v. Cohen, 8 Cox C. C. ^ gee ante, § 123, 141, 190. And see 41, 42; The State v. Simpson, 73 N. C. Reg. •>. Marner, Car. & M. 628 ; Eichard- 269 ; People v. Powell, 63 N. Y. 88 ; Reg. son v. Broughton, 3 Strob. 1. V. Matthews, 14 Cox C. C. 6 ; Marietta, o The State v. Clarksville and E. T. P. &o. Railroad v. Stephenson, 24 Oliio State, Co. 2 Sneed, 88. 48; Watson v. Hall, 46 Conn. 204; Wliite V. The State, 44 Ala. 409. 214 CHAP. XXIV.] LIBERAL WITH STRICT. § 232 § 232. Another Form of the Doctrine. — This doctrine is com- monly stated in terms somewhat narrower than the above ; namely, that the acts to be punishable must come, not only with- in the words of the statute, but also within its reason and spirit, and the mischief it was intended to remedy} Thus, — Slave Trade. — An act of Congress made it punishable "to im- port or bring in any manner into the United States or territories thereof, from any foreign kingdom, place, or country, any negro, mulatto, or person of color, with intent to hold, sell, or dispose of such negro, mulatto, or person of color as a slave, or to be held to service or labor." And this act was adjudged, in the time of slavery, not to be violated by conveying slaves from the United States to Europe, and thence back, to be held again in bondage ; because its object was to put an end to the slave trade ; so that, though the ease was within its letter, it was not within the mis- chief to be suppressed.2 Again, — "Selling for Slave " — (Consent of Injured Person). — The sale of a free negro into slavery, with his own consent,^ under the collu- sive agreement between him and the seller to divide the proceeds, was adjudged not to be within a statute against " selling a free person for a slave, knowing the person so sold to be free." * But the consent of a boy eight years old would not excuse the offence.° So- under Claim of Right. — An act of this sort done under a lona fide claim of right will not be punished, though it is within the general terms of a statute.^ Hence, for example, — Deer Stealing. — A man killing deer under color of right is not within the English statutes against deer stealing.^ 1 Haynes v. The State, 5 Humph. 120 ; Pick. 304 ; Wragg v. The State, 14 Ala. Daggett V. The State, 4 Conn. 60 ; The 492 ; United States v. Hiler, 1 Morris, State V. Sumner, If Vt. 587 ; Common- 3-30 ; Bex v. Williams, 1 Leach, 4th ed. wealth V. Clark, 2 Ashm. 105. And see, 529. for illustrations, besides the other cases ^ United States v. The Garonne, 11 referred to, Keg. v. Marner, Car. & M. Pet. 73. 628 ; The State v. Boozer, 5 Strob. 21 ; 3 Crim. Law, L § 257-263. The State v. Mahan, 2 Ala. 340 ; Bex v. * Mercer v. Commonwealth, 2 Va. Cas. Corry, 5 Bast, 372; The State v. New- 144. begin, 25 Maine, 500 ; The State v. Lane, ^ Davenport v. Commonwealth, 1 8 Ire. 256 ; Hancock v. Sturges, 13 Johns. Leigh, 588. 331 ; Preston v. Hunt, 7 Wend. 53 ; Bich- « Gordon v. Farquhar, Peck, 155. ardson v. Broughton, 3 Strob. 1 ; The ' Bex v. Speed, 1 Ld. Baym. 583, the State V. Johnson, 1 Dev. 360 ; Bex v. judge observing : " The case is out of the Sharpe, 1 Moody, 125 ; Wood v. Smith, intent of the act, but is plainly within the 23 Vt. 706 ; Commonwealth v. Slack, 19 words. The intent of the act was to 215 § 233 INTERPRETATION. [BOOK II. Judicial Sale — (Champerty). — A judicial sale is not within the statutes against champerty.' § 233. Larcenies from Places specified in Statute. — The principle under consideration finds frequent illustration in statutes visiting with special consequences larcenies committed in specified places.^ By construction, these statutes extend only to things usually kept in the places, under their protection, and by persons within the spirit of their provisions. Thus, — From Shop, &o. — The statute of 10 & 11 Will. 3, c. 23, forbade clergy to " any person who, by night or day, shall, in any shop, ware-house, coach-house, or stable, privately and feloniously steal any goods of the value of five shillings or more, though such . shop, &c., be not broken open, and though the owner or any other person be or be not in such shop." And the construction was, that it " was made as a remedy for the owners of shops to preserve their own goods which might be left there by way of trade ; " therefore, that it did not apply where one had left his shirt in another's shop, to be sent to a third person to mend.^ So — Prom Dwelling-house. — The statute of 12 Anne, slat. 1, c. 7, against stealing goods "being in any dwelling-house, &c., al- though such house, &c., be not actually broken in by such offender, and although the owner of such goods or any other person or persons be or be not in such house," is not violated where one steals, in his own house, the goods of another ; * or where a wife does the same in her husband's house ; ^ or where the larceny is of property found upon the person, though in a dwelling-house, but therefore not under its protection ; ^ or punish rogues and vagabonds ; and not v. Stone, 1 Leach, 4th ed. 334, 2 East P. C. to punish persons who by mistake in the 643 ; Rex v. Seas, 1 Leach, 4th ed. 304, execution of their trusts exceed what the 2 East P. C. 643. law warrants. If the keeper of a walk * Rex v. Thompson, 1 Leach, 4th ed. gives leave to third persons to kill a deer; 338 ; s. o. Rex v. Macdaniel, 2 East P. C. though this license does not give sufBcient 644. But a lodger who invites a man authority to the third person to kill it, into his room, and there steals his goods, yet it will not be an unlawful killing is within the statute. Seven judges within the statute, because there is a against three, in Rex v. Taylor, Russ. & color of right." See also post, § 237. Ry. 418. See, further, § 234. 1 Sims V. Cross, 10 Yerg. 460 ; Tuttle 6 jjex v. Gould, 2 East P. C. 644, 1 V. Hills, 6 Wend. 213 ; Anderson v. Ander- Leach, 4th ed. 339, note ; Commonwealth son, 4 Wend. 474 ; Hoyt i;. Thompson, 1 v. Hartnett, 3 Gray, 450. Seld. 320. 8 Rex v. Campbell, 2 Leach, 4th ed. 2 Crim. Law, II, § 900-903. 564, 2 East P. C. 644; Rex v. Watson, 2 ' Anonymous, 8 Mod. 165 ; s. p. Rex Bast P. C. 680, 681 ; Rex v. Owen, 2 East 216 CHAP. XXIV.J LIBERAL "WITH STRICT. § 235 where the things stolen are such as are not ordinarily deemed to be under the protection of the dwelling-house. ^ For like reasons, — § 234. " Enter " and steal — (Consent to Entry). — An Alabama statute having made punishable any person who should " enter any dwelling-house " and commit larceny therein, one who, before entertaining the criminal intent, entered by the owner's permis- sion, was held not to have committed the offence.^ But under the differently-worded Georgia enactment the contrary was ad- judged ; because, said the court, " larceny from the house is defined to be either the breaking or entering any house with an intent to steal ; or, after breaking and entering said house, steal- ing therefrom any money or thing of value." •'' Perhaps some may dissent from this, on the ground that, in favor of the ac- cused, or even where a strict interpretation is required, " break- ing and entering," in the second clause, should be taken in an evil sense, such being the ordinary effect of the expression in the law. In Dwelling-house, by later English Statute. — In England, the before-mentioned statute of Anne was superseded by 7 & 8 Geo. 4, c. 29, § 12, the words of which are simply, " shall steal in any ' dwelling-house any chattel, money, or valuable security to the value in the whole of five pounds or more." And it was held, that one may commit the offence in his own house by there steal- ing another's goods.* This interpretation does not overrule the earlier, the statutory expressions being different ; yet it may create some doubt whether the present English judges would interpret the old words, were they modern, as the former judges did. Still,— § 235. Just and Beneficial. — Whatever may be said of any P. C. 645, 2 Leach, 4th ed. 572. And see is usually under the protection of the The State v. Chambers, 6 Ala. 855. A dwelUng-house, and by mistake is left in man went to bed with a prostitute, first the possession of the occHpier under the putting his watch in his hat on the table, supposition that it is for one of the per- She stole it while he was asleep ; and this sons therein, the stealing of it will come was held to be larceny from a dwelling- within these statutes. Rex v. Carroll, 1 house, though if he had been awake, the Moody, 89. legal consequence might have been dif- 2 xiie State v. Chambers, 6 Ala. 855. ferent. Reg. v. Hamilton, 8 Car. & P. 8 Berry v. The State, 10 Ga. 511, 517., 49. < Reg. M. Bowden, 2 Moody, 285. And ' 2 East P. C. 644, 680, 681. And see see Commonwealth v. Hartnett, 3 Gray, 2 East P. C. 647 ; Rex v. Rourke, Russ. & 450. Ey. 386. But if the property is such as 217 § 236 INTBEPEBTATION. [BOOK II. particular application of the doctrine, the doctrine itself, properly applied, is highly just and beneficial. Criminal punishment should be kept within the conscience of mankind, and be with- held where it refuses assent.' In the nature of things, statutes cannot be so framed as, by express exemption, to provide for every possible, unforeseen and even foreseen case, thereafter to ' arise, which, while within the terms of their main provisions, is still outside of their spirit and purpose.^ And what cannot be done the courts should understand as not having been attempted. Therefore, though a case in judgment is within the letter of a statute, if they can see that it is exceptional to its spirit and pur- pose, and so the law-makers did not mean punishment for it, they ought not to inflict the punishment. By excepting it in the interpretation, they fulfil their highest duty, which is to carry out the true legislative intent.^ And — Mischiefs avoided. — The mischiefs resulting from a contrary course are endless. To punish one who has not violated the spirit of the law, however contrary to the letter his act may have been, is to strike a blow at the root of our jurisprudence, as well as to wrong the individual. Especially in this country, where emphatically the law emanates from the people, — not alwaj's the whole people, many acts depending on bare majorities, — there is no way in which a legislative enactment, good or bad, can be brought so effectually into disrepute, or be made the in- strument of so much real injustice, as to construe it in disregard of the principle we are considering. When a statute comes into being under a divided public sentiment, the judges necessarily form their private opinions ; and, if adverse, they are liable in fact, whatever may be their real purpose, to construe it so rigidly by the letter as to punish some whom its framers never meant to punish ; and suffer to escape others whom, if they had followed more its spirit, they would have seen to be within the letter. Clearly the legislature alone is to determine its own policy ; and, if what it does is within its powers, the judges have no right to interfere : they are, on the other hand, to concur judicially in the propriety of its enactments, and construe them as it, had it fore- seen the case, would have dictated.^ At the same time, — § 236. Words the Guide. — The legislative words are the pri- 1 Crim Law, I. § 210, 211. 8 Ante, § 70. " And see ante, § 124. * And see ante, § 70 and note. 218 CHAP. XXIV.] LIBEEAL WITH STRICT. § 237 mary guide to the intent.^ What else can be looked at by the courts we saw in another connection.^ And, — Beyond Mischief which prompted. — If the court knows the mis- chief which prompted an enactment, its construction is not neces- sarily to be so narrow. For, in the words of Shaw, C. J., " it is not unusual in legislation, where a particular apprehended wrong or grievance is the immediate occasion for the passing of an act, to extend it to other wrongs of the like kind, and make a general, instead of a special provision." ^ Therefore, — Kidnapping. — In the case before the tribunal, an act, the motive for which was probably to prevent negroes from being kidnapped, and reduced to slavery in other States, was held applicable to the seizure and carrying away of white men for a different purpose.* § 237. Limits of Doctrine. — The doctrine under consideration should not be carried beyond where its reason — namely, the fol- lowing of the legislative intent, as apparent in the entire words, illumined by such surroundings as the judicial mind may look into ^ — will lend it support.® Thus, — Permit " in 'Writing." — Where a statute requires, to render the doing of a thing lawful, a permit " in writing," no consent not written will suffice.' Within this doctrine, — Consent of Parents to Marriage. — An officiating clergyman vio- lates a statute forbidding the joining of minors in marriage, " unless the parent be present and consent to the marriage, or give a certificate in writing under his hand," if without such presence he proceeds on a mere verbal expression of approbation from the parent.^ So, — Selling to Minors. — Under a statute forbidding the selling of intgxicating drinks to minors without the parental consent, mere proof of the father's willingness that the son should drink the sort of beverage sold will not excuse the seller.^ Again, — 1 Ante, § 146. to this section, Rex v. Ledbitter, 1 Moody, ' Ante, § 74-77. 76 ; The State v. Findley, 1 Brev. 107. ' Commonwealth v. Blodgett, 12 Met. ' The State v. Hart, 4 Ire. 246 ; The 56, 79. But see Rex v. Williams, 1 Leach, State v. Stroud, 1 Brev. 551 ; 1 Bishop 4th ed. 529. Mar. & Div. § 342. As to what words In * Commonwealth v. Blodgett, supra, a permit are sufficient, see Hurt v. The And see, for a further statement of this State, 19 Ala. 19. case, ante, § 205. ' Wyckofi v. Boggs, 2 Halst. 138. See 6 Ante, § 70-77. ante, § 232 and note ; 1 Bishop Mar. & 6 And see, besides the other cases cited Div. § 342. 9 Adler v. The State, 55 Ala. 16. 219 § 239 INTEEPBETATION. [BOOK II. Lord's Day. — A general prohibition against doing worldly busi- ness on the Lord's day extends to persons who conscientiously observe the seventh day of the week as the Christian Sabbath.^ Moreover, — § 238. Doubtful Cases and Judicial Differences. — In this class of cases as in others, there will be those lying near the line sepa- rating the one result from the other, and those on which judicial opinions differ.^ Of the latter sort, — Selling Liquor for Medical Use — Under statutes forbidding in general terms the unlicensed sale of intoxicating liquors, some courts hold that no necessity of a purchaser, and no prescription of a physician, even in a case where there is no person in the county authorized to sell the liquor, and it is an essential medi- cine, will protect the vendor.^ Other courts, it is believed the majority, execute these laws in the spirit which prompted their enactment ; holding, for example, that a druggist is justified, upon a proper occasion, bona fide, and with due caution, in retailing liquor to be used merely as a medicine.* Near the border line are such cases as — Practising Medicine. — A statute against permitting slaves " to go about the country under the pretext of practising medicine, or healing the sick," was interpreted to embrace all circumstances of medical practice, even those in which the slave is competent, and undertakes it with his master's encouragement from motives of humanity.^ So, — Concealed Weapons. — A prohibition of carrying weapons con- cealed about the person has been adjudged broken by so carrying a pistol for the purpose of merely exhibiting it as a curiosity.^ § 239. Secondly. In favor of defendants, criminal statutes, like remedial, will he expanded in their meanings. Already — Illustrated. — This doctrine has been variously illustrated in foregoing discussions ; '' as, for example, in the interpretations 1 Specht V. Commonwealth, 8 Barr, Wood v. Smith, 23 Vt. 706 ; Anderson v. 312. Commonwealth, 9 Bush, 569. And see, 2 See, besides the other cases cited to as illustrative. Brown v. Maryland, 12 this section, The State «. Griffin, 3 Harring. Wheat. 419; Bode v. The State, 7 Gill, Del. 560 ; The State v. Isaacs, 1 Speers, 326 ; Hall v. The State, 4 Barring. Del. 223. 132 ; post, § 1019, 1020. 8 Commonwealth v. Sloan, 4 Cush. 52 ; » Macon v. The State, 4 Humph. 421. Commonwealth v. Kimball, 24 Pick. 366. 6 Walls v. The State, 7 Blackf. 572. * Donnell v. The State, 2 Ind. 658. 7 And see 1 East P. C. 248 ; Duchess See also People v. Safford, 5 Denio, 112 ; of Kingston's Case, 1 Leach, 4th ed. 146. 220 CHAP. XXIV.J LIBERAL "WITH STRICT. § 240 given by the English judges to the statutes against the exercise of trades by unqualified persons.^ It is further illustrated in those cases ^ wherein acts general in terms are construed to require the concurrence of a wrongful intent with the thing done ; and in most of the cases cited to the point that a statute will not be suffered to extend beyond the mischief contemplated by it,^ — the court in fact inserting, by construction, a clause in favor of the accused.* Again, — § 240. House-breaking. — The English interpretations of 1 Edw. 6, c. 12, § 10, illustrate the doctrine. It took clergy from per- sons convicted of the " breaking of any house by day or by night," any one being therein put in fear, and also from the perpetrators of certain other enumerated crimes, which were felo- nies ; adding, that clergy shall be allowed, " in all other cases of felony." Thereupon it was held, that, for a case to be within the former clause, the breaking must be such as amounts to a felony. " So that," observes East, " the general words of it ought to be supplied with an intendment ; namely, where the party is convicted of breaking the house in the night hurglariously, or in the day, and stealing goods therein." ^ So, — Heavier Funishmeiit for Second Offence. — Whenever a statute makes a second offence felony, the first being misdemeanor, or punishes the second more heavily than the first, it is enlarged by construction to mean, after conviction for the first, not merely after it is committed.® 1 Ante, § 196. * Commonwealth v. Slack, 19 Pick. 2 Ante, § 132, 231 ; Reg. v. AUday, 8 304. Car. & P. 136 ; Smith v. Kinne, 19 Vt. 564. 5 2 East P. C. 625, 631. 3 Ante, § 232, 233. « People v. Butler, 3 Cow. 347. And see Dwar. Stat. 2d ed. 643. 221 § 242 INTERPEETATION. [BOOK U. CHAPTER XXV. SOME MISCELLANEOUS DOCTRINES OP STATUTORY INTERPRETA- TION. § 241. Introduction. 242-242 6. Technical Meanings for Technical Words. 243. Grammatical Construction. 244. Provisions in the Alternative. 245-246 6. General Words following Particular. 246 c-248. Meanings overlying one another. 249, 249 a. Express Mention implying Exclusion. 249 6-253. Statutory and Common-law Remedies mingling. 254-256. Mandatory and Directory Statutes. 256 a. Concluding Suggestions and Views. § 241. What for this Chapter and how divided. — While the foregoing chapters have brought to view most of the rules of statutory interpretation, a few, of a miscellaneous character, were found not to be distinctly within the scope of any of them. Therefore they were left unexplained, or explained only in part. We shall, in this chapter, consider them under the following heads : I. Giving the Technical Meanings to Technical Words ; II. Grammatical Construction ; III. Provisions in the Alterna- tive ; IV. General Words following Particular ; V. Meanings overlying one another ; VI. The Express Mention of one Thing implying the Exclusion of another ; VII. How Statutory and Common-law Remedies mingle ; VIII. Mandatory and Directory Statutes ; IX. Concluding Suggestions and Views. I. Q-iving the Teohnioal Meanings to Technical Words. § 242. In General. — That, prima faciei interpretation is to give to those words of a statute which are technical to its sub- ject their technical meanings we have already seen.^ And this is because the legislature may reasonably be presumed to have 1 Ante, § 96-100. 222 CHAP. XXV.] MISCELLANEOITS DOCTEINES. § 242 SO intended. The most frequent application of this doctrine is to — Terms of fixed legal Meanings.^ — As the result of constant adju- dication, very many words and phrases commonly employed in statutes, contracts, and pleadings have acquired fixed legal mean- ings, unlike or more limited or extended than their popular ones. Then, as all laws are to be construed together,^ when a statute employs a word or phrase of this sort, it is, in the absence of any express indication to the contrary, to be interpreted in the sense which the law has thus ascertained.^ For example, — " Infamous Crime " — (Threatening Letters — Solicitations to Sod- omy). — It having been made punishable in England to send to any person, with an intent mentioned, any letter threatening to accuse him of (among other things) " any infamous crime" * — the judges " were of opinion, that a charge of making overtures to commit sodomy was not within this act ; that they were bound to take the word ' infamous ' in its legal sense ; ^ and that such over- tures, however they would disgrace and expose to detestation, would not subject the person making them to an infamous pun- ishment, or prevent his being a witness." ^ So — " Charged with Crime " — " Accused of Crime " — are severally phrases the meaning of which in the law is familiar. They imply certain legal steps. Therefore a former statute in Alabama, against the concealment or carrying away of any slave "charged with a capital crime," could, as construed by the courts, be vio- lated only after legal proceedings were commenced against the slave.^ And, in a similar South Carolina statute, the words " accused of crime " were held to mean when complaint is made to a magistrate for the purpose of having a warrant issued.^ But — 1 Ante, § 96 et seq. State v. Mace, 5 Md. 337 ; Ex parte Vin- 2 Ante, § 86 et seq., 113 b et seq. cent, 26 Ala. 145. 8 United States v. Magill, 1 Wash. C. * Stat. 4 Geo. 4, c. 54, § 3. C. 463; Adams v. Turpentine, 8 Ire. 147 ; 5 Crim. Law, I. § 972, 974. United States v. Wilson, Bald. 78, 95; 6 Rex k. ffickman, 1 Moody, 34. Sub- Reg, cr. Ellis, Car. & M. 564 ; Kitchen ;'. stantially the same meaning is given to Tyson, 3 Murph. 314; Macy ti. Raymond, the words "infamous crime" in the 9 Pick. 285 ; Bennac v. People, 4 Barb. Constitution of Pennsylvania. Common- 164; Eason v. The State, 6 Eng. 481 , wealth v. Shaver, 3 Watts & S. 338. Spencer v. The State, 20 Ala. 24 ; United ' The State v. Duncan, 9 Port. 260. States •>. Smith, 5 Wheat. 153 ; United And see Willington v. Stearns, 1 Pick. States V. Pirates, 5 Wheat. 184 ; The 497. 8 The State v. South, 5 Rich. 489. 22-3 §2 12 a INTERPRETATION. [BOOK II. " Fleeing from Justice " — (Limitations). — A " fleeing from jus- tice," within the proviso of a limitations statute, may take place before prosecution begun.^ " On Complaint." — A statute authorizing a criminal prosecution to be instituted " on complaint," means a complaint as techni- cally understood, usually under oath.^ And — "Manslaughter" — in a Statute has its common-law meaning.^ So — " Negligent Escape " — signifies the same in a statute as at the common law.* Meaning by Statutory Use. — Statutory use, equally with use at the common law, may have imparted to a word a particular im- port, so that in a subsequent act it will have the same meaning.^ § 242 a. Technical not meant. — Where, from the connection, subject, or otherwise, it is plain that the technical meaning was not intended by the legislature, the court, we have already seen," will not impute it. To illustrate, — " Dwelling-house." — The word " dwelling-house," the meaning of which is fully explained further on,' includes, in the law of burglary and generally in the law, a structure for business uses whereof any internally connected room is occupied for sleeping and abode.^ But if, in a statute exempting property from the claims of creditors, it was given this wide meaning, one might protect against them any amount of real estate by living in some inferior room thereof, to the utter subversion alike of justice and the legislative will. Therefore, in such a statute, the word will not extend to parts of a building devoted to business purposes.' Again, — "Outlaw." — The word "outlaw," in a statute, will not have its common-law meaning^" in a State where outlawry is unknown. 1 United States y. Smith, 4 Day, 121. Bald. 78; for "party" see Merchants' '■* Campbell v. Thompson, 16 Maine, Banli v. Coolc, 4 Pick. 405, 411. 117. But the requirements of the com- * The State v. Nates, 3 Hill, S. C. 200. plaint, under the statutes of our several ' Ante, § 100. States, and at the common law, differ. ' Post, § 277-290. Crim. Proced. I. § 152, 230-232. s Post, § 280, 282 ; Samanni v. Com- 8 The State v. Fleming, 2 Strob. 464. monwealth, 16 Grat. 542 ; The State u. And see United States v. Magill, 1 Wash. Mordecai, 68 N. C. 207 ; The State «. C C.463; The State W.Taylor, 2 McCord, Outlaw, 72 N. C. 598; The State v. 483. Potts, 75 N. C. 129. * Adams v. Turrentine, 8 Ire. 147. " In re Lammer, 7 Bis. 269, 14 Bankr. For " rob," " jeopardy," " dangerous Reg. 460. weapons," see United States v. Wilson, i" Crim. Law, I. § 967 ; Crim. Proced. 224 CHAP. XXV.] MISCELLAJSTEOUS DOCTRINES. § 243 Therefore, in Alabama, counties having been made liable for per- sons killed by outlaws, the court, looking at the condition of the State at the time when the act was passed, deemed it to refer to lawless and disorderly persons roaming about in disguise, and habitually committing violence and outrage.^ Now, — § 242 b. Consequences. — The consequences of this sort of in- terpretation are, that, to the extent to which it furnishes the rule, the law is made, as it should be,^ one system ; while, at the same time, the real intent of the legislature is carried out. And the doubts concerning the meanings of statutes are diminished to their smallest possible proportions. For thus an enactment of to-day has the benefit of judicial renderings extending back through centuries of past litigation. II. Grammatical Construction. § 243. In General. — However desirable a correct use of the English language may be, the courts have no jurisdiction to enforce it on the legislature. Therefore, as already seen,* when the legislative meaning is plain, the exact grammatical construc- tion and propriety of language may be disregarded, even in a penal statute. For example, — " And " — " Or." — The conjunction " and " will be read as " or," and "or" as "and," when the sense obviously so requires;'' and this, in plain cases, even in criminal statutes against the accused.^ So,— I. § 673 ; ante, § 132. " One who is put 394, 406 ; Townseud v. Read, 10 C. B. out of the protection or aid of the law." n. s. 308 ; Fowler v. Padget, 7 T. R. 509 Bouv. Law Diet. And see Drew v. Drew, Commonwealth v. GrifiBn, 105 Mass. 185 37 Maine, 389 ; Walker v. Thelluson 1, Sparrow v. Davidson College, 77 N. C Dowl. N. s. 578 ; Loukes r. Holbeach, 4 35 : People v. Sweetser, 1 Dak. Ter. 308 Bing. 419 ; Aldridge v. BuUer, 2 M. & W. Eigoney v. Neiman, 23 Smith, Pa. 330 412 ; Wharton Peerage, 12 CI. & F. 295; Green n. Wood, 7 Q. B. 178. Rex V. Yandell, 4 T. R. 521 ; Macrae v. ^ The State v. McCoy, 2 Speers, 711 Hyndman, 6 CI. & F. 212. The State v. Miles, 2 Nott & McC. 1 1 Dale V. Gunter, 46 Ala. 118, 137. Foster v. Commonwealth, 8 Watts & S. " Ante, § 113 b et seq. 77 ; RoUand v. Commonwealth, 1 Norris. » Ante, § 78-81, 93, 212. Pa. 306 ; The State v. Smith, 46 Iowa, * Ante, § 81 ; The State v. Mitchell, 5 670 ; The State v. Brandt, 41 Iowa, 593, Ire. 350 ; Hall's Case, Cro. Eliz. 307 ; Contra, The State v. Kearney, 1 Hawks, Creswick v. Rooksby, 2 Bulst. 47 ; Water- 53. So it has been said, by way of die- house V. Keen, 4 B. & 0. 200, 6 D. & R. tum, that " and " in a penal statute can 257 ; Dwar. Stat. 2d ed. 682 ; Smith Stat, never be construed to mean " or." United & Const. Law, 732 ; Barker v. Esty, 19 States v. Ten Cases of Shawls, 2 Paine, Vt. 131; Winterfleld v. Stauss, 24 Wis. 162. 16 225 § 244 rNTERPRETATION. [BOOK U. "On" — "Or." — To correct an obviously clerical error,^ "on" may be read as " or," even in the strict construction of a penal statute.^ And, — " Such," — vfhen evidently it does not refer to any preceding matter, may be disregarded.^ Again, — Misnomer. — A misnomer, — for example, in the name of a per- son or corporation, — vrhich can be corrected by other parts of the statute, will be corrected in the interpretation ; * for the court will look into the entire enactment, and compare part with part.^ III. Provisions in the Alternative. § 244. In General. — Provisions in the alternative are common in legislation ; and the rule is, that whatever is within any one of the disjunctively connected clauses is within the statute. Thus, — Alternative Offences. — If, as is common in legislation, a statute makes it punishable to do a particular thing specified, "or" another thing, " or " another, one commits the offence who does any one of the things,^ or any two, or more, or all of them. And the indictment may charge him with any one,'^ or with any larger number, at the election of the pleader ; employing, if the allegation is of more than one, the conjunction "and" where " or" occurs in the statute.^ " The rule," it was once observed, " is undoubtedly limited in its application to cases where the offences created in a statute are not repugnant."* And, what- ever be the form of the allegation, the proofs need sustain only so much of it as constitutes a complete offence.^* 1 Ante, § 79. State v. Fidler, 7 Humph 502 ; The State 2 ToUett V. Thomas, Law Kep. 6 Q. B. v. Hull, 21 Maine, 84. See Crim. Proced. 514, 518. I- § 436, 586-588. ' The State v. Beasley, 6 Misso. 91. ' Rex v. Franks, 2 Leach, 4th ed. 644 ; ' Blanchard m Sprague, 3 Sumner, 279. The State v. Laney, 4 Rich. 193. ^ Ante, § 82, 86. * Angel v. Commonwealth, 2 Va. Cas. 6 Commonwealth v. Loring, 8 Pick. 281; The State v. Murphy, 6 Ala. 845; 870 ; The State v. Layman, 8 Blackf . Mooney v. The State, 8 Ala. 328 ; Me- 330 ; The State v. Miles, 2 Nott & McC. Elhaney ;;. The State, 24 Ala. 71 ; The 1 ; The State v. Kearney, 1 Hawks, 53 ; State v. Price, 6 Halst. 203, 215. But Commonwealth o. Clapp, 5 Pick. 41 ; see, contra. Miller v. The State, 5 How. Commonwealth v. Burns, 4 J.' J. Mar. Missis. 250. See also Washburn u. Mc- 177 ; Davenport v. Commonwealth, 1 Inroy, 7 Johns. 134. Leigh, 588 ; Rex v. Baylis, Cas. temp. » The State v. Woodward, 25 Vt. 616. Hardw. 291 ; Rex v. Dixon, Russ. & Ry. See Crim. Proced. I. § 489-492. 53 ; The State v. Murphy, 6 Ala. 845 ; i" Crim. Proced. I. § 586 ; United States Carrioo v. The State, 11 Misso. 579 ; The v. Millard, 13 Blatch. 634. 226 CHAP. XXV.] MISOELLANEOTJS DOCTRINES. § 246 IV. G-eneral Words following Particular. § 245. Enumeration weakening. — When specific and general terms in a statute are mingled, the meaning of the whole is in various circumstances less broad than if the general were em- ployed alone. Or, in the words of Lord Bacon, " As exception strengthens the force of a law in cases not excepted, so enumera- tion weakens it in cases not enumerated." ^ The more common form of this constitutes what has been termed the " celebrated rule," 2 that, — Doctrine defined. — Where particular words of a statute are fol- lowed by general, — as if, after the enumeration of classes of per- sons or things, it is added, " and all others^'' — the general words are restricted in meaning to objects of the like kind with those specified.^ For example, — "Other Person" — (Sabbath-breaking). — The statute of 29 Car. 2, c. 7, § 1, provided "that no tradesman, artificer, workman, laborer, or other person whatsoever " should exercise his ordinary calling on the Lord's day. Thereupon the words "other per- son " were held not to include a farmer, who is not a person of like denomination with those specifically mentioned ; for, as Bay- ley, J. said, if all persons were meant, there was no need of the specific enumeration.* Again, — "Other Craft." — The words of another statute were ." wherry, lighter, or other craft." And the term " craft " was held not to include a steam-tug ; because, though a steam-tug is a craft, it is not one of the same character as a wherry or a lighter.^ Still, — § 246. Limit of Doctrine. — This rule does not require the entire rejection of general terms. ^ And its object is, not to defeat, but to ascertain and carry out, the legislative intent.'' 1 1 Story Const. § 448 ; Pagew. AUen, 71 N. Y. 481; McDade v. People, 29 8 Smith, Pa. 338. , Mich. 50 ; 1 East P. C. 187, 188. And see 2 Smith Con. 172. Bush v. The State, 18 Ala. 415 ; Monck ' Dwar. Stat. 2d ed. 621; Eex v. Gill- v. Hilton, 2 Ex. D. 268. brass, 7 Car. &P. 444; Eex v. Garratt, 6 * Reg. i. Savage, 1 Ld. Raym. 347 ; The State V. Maze, 6 Humph. 17 ; Rex v. Wright, 1 Bur. 543 ; Sudbury Meadows x\ Middle- sex Canal, 23 Pick. 36; Dodge v. Essex, 3 Met 380 ; Henniker v. Contoocook Val- ley Railroad, 9 Post. N. H. 146. 1 Ante, § 163 d, 164, 166, 167, 173 ; Crittenden v. Wilson, 5 Cow. 165 ; Peo- ple V. Craycroft, 2 Cal. 243 ; Rex v. Dixon, 234 10 Mod. 335; Gooch » Stephenson, 13 Maine, 371. 2 Crim. Law, I. § 237, 238. 8 Rex V. Robinson, 2 Bur. 799, 803 ; Rex V. Smith, 2 DoUg. 441 ; Rex o. Har- ris, 4 T. R. 202. ^ Ante, § 138; Reg. v. Price, 11 A. & E. 727, Reg. v. Walker, Law Rep. 10 Q. B. 355, 13 Cox C. C. 94. 5 Colburn v. Swett, 1 Met. 232; Elder V. Bemis, 2 Met. 699 , The State y. Meyer, 1 Speers, 305; The State v. Helgen, 1 Speers, 310 ; and the cases m the last two notes. 8 Ante, § 134, 138, 144; Crim. Law, L § 237, 238 ; Ewer v. Jones, 2 Ld. Raym. 934, 937 ; Privilege of Priests, 12 Co. 100, Arundel v. Duckett, 20 Md. 468; Shepherd v. Hills, 11 Exch. 55, 67 ; High- tower I). Fitzpatriok, 42 Ala. 597 ; Dudley V. Mayhew, 3 Comst. 9. And see Steam- ship Co. V. JolifEe, 2 Wal. 450. ' Ashby i;. White, 14 HoweU St. Tr. 695, 785 ; Pickering v. James, Law Rep. 8 C. P. 489 ; Hitchins v. Kilkenny, &c. Railway, 9 C. B. 536 ; The Waveriy, 7 Bis. 465. CHAP. XXV.] MISCELLANEOUS DOCTEINES. §250c an existing right does not take away the former remedy, and either may be pursued .^ So, as in the case of a criminal statu te,^ where the act which confers a civil right prescribes the remedy, it only is permissible.* Or, if a statute authorizes the doing of a thing which was before unlawful, and prescribes the remedy for the injured party, it only can be pursued ; * or, if it provides for a part of the injury, its rule prevails as to the part, while the common-law remedy is available for the rest.^ § 250 b. Civil and Criminal or Penal. — As private and public wrongs and redress are separate and concurrent,^ provisions for the procedure as to the one have no relation to the same as to the other. So that, for example, if a statute creates a new offence and imposes a penalty, the remedy by injunction is nevertheless in a proper case available.' So also, in a proper case, not as of course in every one, an action at common law may be maintained by the private party in such circumstances.^ § 250 c. Indictment — is the common, yet not the only, form for prosecuting crimes.^ When, therefore, a statute creates a crime, whether it fixes the punishment or not, an indictment will >■ Coxew.Eobbins,4Halst. 384; Alrny V. Harris, 5 Jolins. 175 ; Golden v. Eldred, 15 Johns. 220 ; Farmers' Turnpike v. Cov- entry, 10 Johns. 389 ; Bearcamp River Co. V. Woodman, 2 Greenl. 404 ; Frye- burgh Canal v. Frye, 5 Greenl. 38 ; Balti- more V. Howard, 6 Har. & J. 383 ; Booker V. McRoberts, 1 Call, 243 ; People v. Cray- croft, 2 Cal. 243; Adams v. Richardson, 43 N. H. 212 ; Bruce v. Delaware and Hudson Canal, 19 Barb. 371 ; Sharp v. Warren, 6 Price, 131. 2 Ante, § 250. s Stevens w. Evans, 2 Bur. 1152, 1157 ; The State v. Stewart, 26 Ohio State, 216 ; Lang V. Scott, 1 Blackf. 405 ; Rochester V. Bridges, 1 B. & Ad. 847, 859 ; Ward v. Severance, 7 Cal. 126; Roberts v. Lan- deoker, 9 Cal. 262 ; Thurston v. Prentiss, 1 Mich. 193; Almy v. Harris, 5 Johns. 175 ; Renwick v. Morris, 7 Hill, N. Y. 575; Fuller v. Ediugs, 11 Rich. 239; But- ler V. The State, 6 Ind. 165 ; Victory v. Fitzpatrick, 8 Ind. 281 ; Cole v. Musca- tine, 14 Iowa, 296; Hazen v. Essex, 12 Gush. 475 ; Camden v. Allen, 2 Dutcher, 398 ; Weller v. Weyand, 2 Grant, Pa. 103 ; Brown v. White Deer, 3 Casey, Pa. 109 ; Babb v. Mackey, 10 Wis. 371 ; Wolverhampton New Waterworks v. Hawkesford, 6 C. B. n. s. 336, 356 ; Ste- vens V. Jeacocke, 11 Q. B. 731 ; Marshall V. NichoUs, 18 Q. B. 882 ; St. Pancras «. Batterbury, 2 C. B. n. s. 477 ; Bassett u. Carleton, 32 Maine, 553. ^ Henniker «. Contoocook Valley Rail- road, 9 Fost. N. H. 146 ; Best v. Gholson, 89 111. 465 ; In re Washington Park, 52 N. Y. 131 ; In re Townsend, 4 Hun, 31 ; McKinney v. Monongahela Nav. Co. 2 Harris, Pa. 65 ; Sudbury Meadows v. Middlesex Canal, 23 Pick. 36 ; Dodge v. Essex, 3 Met. 380. ^ Troy V. Cheshire Railroad, 3 Fost. N. H. 83. 6 Grim. Law, I. § 264 et seq. ' Cooper V. Whittingham, 15 Ch. D. 601. s Hayes v. Porter, 22 Maine, 371 ; Couch V. Steel, 3 Ellis & B. 402 ; Atkin- son V. Newcastle, &c. Waterworks, 2 Ex. D. 441. 9 Grim. Proced. I. § 130 et seq. 235 § 251 TNTEEPEETATION. [BOOK IL lie against the violater,i unless it provides some other form of procedure.^ So, — § 250 d. Penal Action. — Though a penal action is not prop- erly criminal,^ if a statute provides a penalty for a wrong of a public nature,* to be recovered by action,^ the plaintiff should be, not the informer, though he is to receive a part of the penalty, but the State.® Yet it is common, by express provision, to allow qui tarn actions, in which an informer sues in his own name for a penalty, as well on behalf of himself as the State/ But even then, if the private person has not commenced such action, the State may sue.^ While his action is pending, no other person can maintain a suit.^ Now, — § 251. Complications less obvious. — While the doctrines of this sub-title are thus far plain, both in reason and authority, there may be complications of facts the legal consequences whereof are less obvious. Thus, — Different Date or different Part of Statute. — Plainly if a statute of to-day creates an offence, and, pi-escribing no remedy, leaves it to be proceeded against under the common law, a statute of to-morrow defining the procedure will be cumulative, the same as if the offence had been originally at the common law.^" Then will it make a difference should the statutes be simultaneously enacted? There are cases which hold not, and that, if one sec- tion of an act creates an offence, and another prescribes the rem- edy, the remedy is cumulatively And a much-esteemed book lays down the doctrine, that, " where an offence is not so at the 1 Ante, § 250 ; 2 Hale P. C. 171 ; 2 v. Look, 108 Mass. 139, 141 ; Caroon v. Hawk. P. C. c. 25, § 4 ; Rex v Wright, 1 Rogers, 6 Jones, N. C. 240. Under the Bur. 543, 544 ; Beg. v. Buchanan, 8 Q. B. Missouri statute, see Hudson v. St. Louis, 883; The State w. Pate, Busbee, 244; &c. Railway, 53 Misso. 525 ; Fickle u. St. Blackwell v. Old Colony Railroad, 122 Louis, &c. Railway, 54 Misso. 219; Seaton Mass. 1 ; United States v. Ebner, 4 Bis. v, Cliicago, &c. Railroad, 55 Misso. 416. 117 ; Burnet v. Davidson, 10 Ire. 94. See ' Smith v. Look, supra ; Wheeler o. The State v. Carr, 6 Oregon, 133. Goulding, 13 Gray, 539; Moore v. Jones, 2 Rex K. Wright, supra; Rex u. Mar- 23 Vt. 739; Chicago, &c. Railroad v. riot, 4 Mod. 144. Howard, 38 111. 414; Megargell v. Hazel- 3 Crlm. Law, I. § 32 ; Webster v. Peo- ton Coal Co. 8 Watts & S. 342. pie, 14 111. 365 ; Canfield v. Mitchell, 43 8 The State v. Bishop, 7 Conn. 181 ; Conn. 169. Commonwealth v. Howard, 13 Mass. 221, * See Ordwayt). Central National Bank, 222. 47 Md. 217 ; Gilmore v. Dawson, 64 Misso. o Dozier v. Williams, 47 Missis. 606. •510. w 1 Russ. Crimes, 3d Eng. ed. 50. 5 2 Hawk. P. C. c. 25, § 4. See Carle " Attorney-General v. White, 2 Co- V. People, 12 111. 285. niyns, 433, 436. But see Crofton's Case, 6 Rex V. Hymen, 7 T. E. 536; Smith 1 Vent. 63, 1 Mod. 34. 236 CHAP. XXV.J MISCELLANEOUS DOCTKINES. § 252 common law, but made an offence by act of Parliament, an indict- ment will lie where there is a substantive prohibitory clause in such act of Parliament ; though there be afterwards a particular provision and a particular remedy given." i Within this doc- trine, if by one clause of a statute an offence is created, " and a penalty is annexed to it by a separate and subsequent clause," a violation of it need not be pursued by a suit for tlie penalty, but an indictment will lie "on the prior clause, on the ground of its being a misdemeanor." ^ Now, to take another step in the argument, can it make a difference that the prohibition and rem- edy are in different clauses or sections? If we make the natural answer that it cannot,^ we come to a doctrine directly contrary to what we have seen to be established.* The logical course would be to deny that provisions enacted at the same date have, in this class of cases, the same effect as if established at different dates. But the English decisions appear to have gone too far otherwise to admit of reconciliation by logic ; so the distinction in England seems to be, that, where the same section both cre- ates the offence and affixes the consequence, only the statutory direction can be followed ; ^ but, where the offence is created in one section and penalties are prescribed in a subsequent section, the subsequent one is cumulative, and the common-law method may be followed.^ But, — § 252. With us, — this particular distinction has probably not been very much considered. And it is doubtful whether any thing relating to it can be set down as established in American law. Said a learned Massachusetts judge : " The distinction to be taken is, where a statute does not vest a right in a person, but only prohibits the doing of some act under a penalty ; in such a case the party violating the statute is liable to the penalty only ; but, where a right of property is vested in consequence of the statute, it is to be vindicated by the common law, unless the statute confines the remedy to the penalty." ^ Should we apply 1 1 Saund. Wms. ed. (6th) 135, note. * Ante, § 250, 250 a. And see Lichfield u. Simpson, 8 Q. B. 5 Attorney-General v. EadlofE, 10 65 ; Collinson v. Newcastle, &c. Kailway, Exch. 84, 23 Law J. n. s. Exch. 240, 18 1 Car. & K. 546 ; Rochdale Canal v. King, Jur. 555, 26 Eng. L. & Eq. 413. 14 Q. B. 122. 6 Eeg. u. Buchanan, 8 Q. B. 88.3, 15 2 Ashurst, J. in Rex v. Harris, 4 T. R. Law J. n. s. Q. B. 227, 10 Jur. 736 ; 1 202, 205. See also 1 Russ. Crimes, 3d Russ. Crimes, 3d Eng. ed. 50, 51. Eng. ed. 49 et seq. ; ante § 134, 136, 138. '< Putnam, J. in Barden v. Crocker, 10 s Ante, § 63, 65, 66. Pick. 383, 389. 237 § 254 INTEEPRETATION. [BOOK II. this distinction in the criminal law, it might possibly subject to indictment one who violated a statute creating a crime a^nd pre- scribing a summary procedure, without words negativing any other procedure ; though this consequence does not seem to be inevitable.^ A statute making a thing a public nuisance, and in the same section directing how it shall be punished, doubtless leaves it subject to the common-law abatement.^ § 253. In Conclusion of this Topic. — Under the present unsat- isfactory condition of the authorities, true wisdom would seem to indicate that, in each individual instance, special regard be paid to those considerations which point to the actual legislative in- tent. The practitioner, obliged to adapt his course nicely to the shades of distinction taken by the courts heretofore, will consult the cases carefully as to points presenting special difficulties. But judges, seeking the truth more in the line of legal reason than of precise authority, will consider whether, looking at the whole law, the new remedy for the new offence was intended by the legislature to supersede the common-law remedies, which attach as of course to all offences. VIII. Mandatory and Directory Statutes. § 254. Mandatory, defined. — A statute is called mandatory when, if not all its provisions are complied with according to their terms, the thing done is, as to it, void. In General. — Most statutes are mandatory ; ^ and, for example, their terms must be all and strictly pursued to render proceedings under them good, or rights claimed under them valid.* Even, — Agreements contrary to Statute. — As we have seen," agree- ments in contravention of a statute or its policy are, in general, void.^ And — 1 And see, to this point, The State v. ^ Koch v. Bridges, 45 Missis. 247. Thompson, 2 Strob. 12, which is, how- * Ante, §119; Fitzpatrick u. Turner, ever, consistent with the English distinc- 14 Fla. 382 ; Haramons v. The State, 8 tion as stated in the last section. And Texas, 272 ; District Township, &c. v. to the point of the text is Crofton's Case, Dubuque, 7 Iowa, 262 ; Corbett v. Brad- 1 IVFod. 34, which has perhaps been over- ley, 7 Nev. 106 ; Logwood v. Huntsville, ruled. See also People v. Stevens, 13 Minor, 23 ; Crawford u. The State, Minor, Wend. 841; Renwick v. Morris, 7 HiU, 143; Hale v. Burton, Dudley, Ga. 105; N. Y, 575. Fitch v. Kirkland, 22 Wend. 132. 2 See Renwick v. Morris, 7 Hill, N. Y. » Ante, § 138 a. 575 ; Rex v. Gregory, 2 Nev. & M. 478, 5 6 Peck v. Burr, 6 Seld. 294 ; Miller v. B. & Ad. 555. Post, 1 Allen, 434; Hathaway v. Moran, 238 CHAP. XXV.] MISCELLANEOUS DOCTRINES. § 255 Thing done contrary, &o. — Penalty. — The same rule applies to a thing done, contrary to a statute ; it is commonly void. Or, if the enactment merely imposes a penalty or a forfeiture, this is usually, not always, equivalent to a prohibition.^ § 255. Directory, defined. — A statute is termed directory when a part or aU of its provisions operate merely as advice or direc- tion to the official or other person who is to do something pointed out, leaving the act or omission not destructive of the legality o^ what is done in disregard of the direction. What Directory and what Mandatory. — It is difficult, on the authorities, to lay doWn exact rules for determining when a stat- utory provision should be construed as directory, and when as mandatory .2 In reason, we may say, that the interpretation wiU be adopted which will best subserve justice and the true legis- lative intent ; but so indefinite a rule can be of little practical avail. Let us look at some recognized distinctions. Thus, — Not of Substance. — Whatever, in a statute, is not of the sub- stance of its provisions will,^ when not in the nature of a grant of rights to parties or the public,* be construed as directory. And, — Time and Manner of Official Acts. — Generally, when no rights will be impaired, provisions, with no negative words or implica- tions, concerning the time and manner, and more especially the time, in which official persons shall perform designated acts, are directory.^ Of this sort,' for example, is the requirement that 44 Maine, 67. As to marriage see 1 * Ante, § 112 ; The State v. Lean, su- Bishop Mar, & Div. § 283-289 ; Parton pra ; People v. New York, 11 Abb. Pr. V. Herrey, 1 Gray, 119 ; Illinois Land and 114 ; Wendel v. Durbin, supra. Loan Co. v. Bonner, 75 III. 315. ^ Pond v. Negus, 3 Mass. 230 ; Rex v. 1 Hallet V. Novion, 14 Johns. 273, 290 ; Leicester, 7 B. & C. 6 ; Rex v. Denby- Mitchell u. Smith, 1 Binn. 110 ; Williams shire 4 East, 142; Reg. v. Rochester, 7 V. Tappan, 3 Fost. N. H. 385, 391 ; Lewis Ellis & B. 910 ; Reg. v. Ingall, 2 Q. B. D. V. Welch,. 14 N. H. 294; Louisville v. 199; People w. Allen, 6 Wend. 486 ; Peo- Roupe, 6 B. Monr. 591 ; Tabb v. Baird, 3 pie v. Peck, 11 Wend. 604 ; Marchant v. Call, 475; SeUers u. Dugan, 18 Ohio, 489 ; Langworthy, 6 Hill, N. Y. 646; Hooker Griffith V. WeUs, 3 Denio, 226; Bancroft v. Young, 5 Cow. 269; Ex parte Heath, V. Dumas, 21 Vt. 456 ; Skelton v. Bliss, 7 3 Hill, N. Y. 42 ; Colt v. Eves, 12 Conn. Ind, 77. 243; Wan-kon-chaw-neek-kaw <,■. United 2 Bladen v. Philadelphia, 10 Smith, States, Morris, 332, 335 ; Walker v. Chap- Pa. 464. man, 22 Ala. 116; People v. Cook, 14 'Norwegian Street, 81 Smith, Pa. Barb. 2.59 ; The State w. Click, 2 Ala. 26 ; 349; Wendel v. Durbin, 26 Wis. 390; McGuffie w. The State, 17 Ga. 497 ; Hart The State v. Lean, 9 Wis. 279 ; Hurford v. Plum, 14 Cal. 148 ; People v. Lake, 33 V. Omaha, 4 Neb. 336 ; Howard u. Bod- Cal. 487 ; Wheeler v. Chicago, 24 111. 105 ; ington, 2 P. D. 203, 210, 211 ; Rex v. Lox- St. Louis County Court v. Sparks, 10 dale, 1 Bur. 445. Misso. 117 ; Blimm v. Commonwealth, 7 239 §255 INTERPRETATION. [book II. the court which sentences a prisoner to the State prison " shall so limit the time of sentence that it will expire between the months of March and November." A sentence, in disregard of it, is not void.' And largely the statutes relating to the time and manner of summoning and bringing in jurors are of this class.^ The same is true of those providing for other steps in a judicial cause .^ But a provision of this or any other sort which, though in the nature of a command to an officer or court, confers rights on parties, is generally or always mandatory.* A familiar illustration of this kind of statute is one giving the prevailing party costs ; they cannot be withheld at the discretion of the judge.^ Further to illustrate, — Time of Executing Sentence. — If a statute directs within how many days, after judgment, the prisoner in a capital case shall be executed, the court may still order him executed at a different time.^ Again, — Bush, 320 ; Torrey v. Millbury, 21 Pick. 64 ; Parchman v. The State, 2 Texas Ap. 228; Lackawana Iron, &e. Co. u. Little Wolf, 38 Wis. 152 ; Rex v. Sparrow, 2 Stra. 1123; The State w. Camden, 10 Vroom, 620 ; Lee v. The State, 49 Ala. 43 ; Lime- stone V. Rather, 48 Ala. 433 ; Ryan u. Vanlandingham, 7 Ind. 416 ; Merrill v. The State, 46 Ala. 82 ; Boykin v. The State, 50 Missis. 375; Wright v. Sperry, 21 Wis. 331 ; McRoberts v. Winant, 15 Abb. Pr. N. s. 210 ; Le Feurre v. Miller, 8 Ellis & B. 321. And see, besides the other cases cited to this section. Striker V. Kelly, 7 Hill, N. Y. 9; Wiggin v. New York, 9 Paige, 16; McBee v. Hoke, 2 Speers, 138 ; The State v. Hill, 2 Speers, 150 ; Eustis v. Kidder, 26 Maine, 97 ; Rex V. Page, 12 Mod. 123 ; Rex v. Ingram, 1 Ld. Raym. 215 ; Steele o. The State, 1 Texas, 142; Dyches v. The State, 24 Texas, 266; People v. Weller, 11 Cal. 49. 1 Miller v. Finkle, 1 Parker C. C. 374. And see, for a like principle as to the sen- tence, Brightwell v. The State, 41 Ga. 482. 2 The State v. Pitts, 58 Misso. 556; The State v. Gillick, 7 Iowa, 287 ; The State V. Smith, 67 Maine, 328 ; The State V. Carney, 20 Iowa, 82. See The State v. Maddox, 1 Lea, 671. 8 Dawson v. People, 25 N. Y. 399 ; The State 0. Jolly, 7 Iowa, 15 ; The State v. 240 Axt, 6 Iowa, 511 ; Friar v. The State, S How. Missis. 422 ; Zantzinger v. Ribble, 36 Md. 32 ; Ottillie v. Waechter, 33 Wis. 252 ; Body v. Jewsen, 33 Wis. 402 ; Com- monwealth t'. Edwards, 4 Gray, 1; Cro- foot V. People, 19 Mich. 254 ; The State i: Baker, 8 Nev. 141 ; The State v. Scott, 1 Bailey, 294 ; The State v. Baker, 9 Rich. Eq. 521 ; Territory v. Anderson, 1 Wy. Ter. 20 ; Charter v. Greame, 13 Q. B. 216; Clark v. Commonwealth, 5 Casey, Pa. 129. * Ex parte Jordan, 94 U. S. 248; Peo- ple V. Livingston, 68 N. Y. 114 ; Stacey V. The State, 3 Texas Ap. 121 ; Satter- white V. The State, 3 Texas Ap. 428; Wendel v. Durbin, 26 Wis. 390 ; Newman V. The State, 6 Baxter, 164 ; French ,.. Edwards, 13 Wal. 506 ; Donlin v. Het- tinger, 57 111. 348 ; Blake v. Sherman, 12 Minn. 420 ; People v. Erie, 1 Buf. 517 ; Howard v. Bodington, 2 P. D. 203; Vaux V. Vollans, 4 B. & Ad. 525. See The State V. Cooper, 45 Misso. 64 ; Long v. The State, 4 Texas Ap. 81. ^ First National Bank v. Prescott, 27 Wis. 616. Seaborn v. The State, 20 Ala. 15; Rex i\ W\ att, Russ. & Ry. 230. See, on this subject, Reg. v. Hartnett, Jebb, 302 ; Reg. V. Hogg, 2 Moody & R. 380 ; Miller V. The State, 3 Ohio State, 476. CHAP. XXV.J MISCELLANEOUS DOCTEINES. § 256 Eight-hours Law. — The act of Congress, termed the "Eight- hours Law," which provided that eight hours should constitute a day's work for all laborers, workmen, and mechanics employed by or on behalf of the government of the United States, was held to be a direction to the agents of the government, and not a con- tract between it and a class of its employees. By agreement, a day's work might stiU be more or less than eight hours.^ Non-official Person. — A provision for a thing to be done by a non-official person may be directory, equally as where the doer is an officer.^ Bonds and other Instruments. — Where a statute requires duties, less in amount than two hundred dollars, to be paid in cash, a bond for such less amount is valid.^ And in other cases bonds, deeds, and other instruments, not following a statutory form may be good,* though they are not so always. So may an affidavit, not in statutory form, be good.^ In Part directory. — The reader perceives, from these illustra- tions, that a directory statute is not necessarily, while yet it may be, such in full ; it is oftener directory only in part.® For ex- ample, it may be directory as to the time, and mandatory as to the thing itself." § 255 a. Legislative Intent — (Negative Words). — Negative or other words indicating a legislative intent may, and often do, cause a statute to be construed as mandatory, which otherwise would be held directory.^ For example, — § 256. Peremptory Language. — As expressed by Dwarris, " where affirmative words are peremptory, as that ' the forms of proceedings set forth in the schedule annexed shall be used on all occasions,' Lord Kenyon observed, ' I cannot say that these words are merely directory ;.' and a material variance from the 1 United States v. Martin, 94 U. S. 400. ' The State v. Harris, 17 Ohio State, 2 Field V. Gooding, 106 Mass. 310 ; 608 ; The State v. Lean, 9 Wis. 279. Bainbridge v. The State, 30 Ohio State, ^ Liverpool Borough Bank v. Turner, 264 ; American Bank v. Cooper, 54 Maine, 2 De G., E. & J. 502 ; Howard v. Boding- 438. ton, 2 P. D. 203, 211 ; Bladen u. Phila- ^ United States v. Linn, Crabbe, 307. delphia, 10 Smith, Pa. 464 , Hurford v. * Rex V. Lyon, Buss. & Ry. 255 ; Bex Omaha, 4 Neb. 336 ; The State v. Smith, ». Randall, Russ. & Ry. 195. 67 Maine, 328 ; Pearse v. Morrice, 2 A. & 5 The State v. Dayton, 3 Zab. 49. E. 84, 96 ; Reg. v. Fordham, 11 A. & E. 6 Woodward v. Sarsons, Law Rep. 10 73 ; Rex v. Newcomb, 4 T. R. 368 ; Bow- C. P. 7.33, 746; Reg. v. Fordham, 11 A. man «. Blyth, 7 Ellis & B.47; People . Rolfe (16 N. H. 247) 104 , State V. (16 Ind. 46) 37 , United States v. (9 Pet. 238) 204 V. Whaley (14 Rich. Eq. 81) 131 Bainbridge v. State (30 Ohio State, 264) 255 Baker v. Baker (13 Cal. 87) 144 V. The Milwaukee (14 Iowa, 214) 163 V. Portland (5 Saw. 566) 13 V. State (2 Har. & J. 5) 221 V. State (57 Ind. 255) 138 , State V. (8 Nev. 141) 255 , State V. (9 Rich. Eq. 521) 255 Baldwin, Com'th v. (1 Watts, 54) 142 V. Newark (9 Vroom, 158) 83 a, 84 , State V. (2 Bailey, 541) 82, 168 , State V. (45 Conn. 184) 178 a, 181 Ball V. State (50 Ind. 595) 190 d Ballard, U. S. v. (3 McLean, 469) 126 V. Ward (8 Norris, Pa. 358) 83 a Ballentine, Estate of (45 Cal. 696) 112 Ballin v. Ferst (55 Ga. 546) 98, 160 Baltimore v. Howard (6 Har. & J. 388) 249, 250 a ■ V. State (15 Md. 376) 40, 91, 104 42 a 82 254 212 193 34 97 35 6 77 36 Bank of St. Mary's v. State (12 Ga. 475) 33, 178 Bank for Savings v. The Collector (3 Wal 495) 57, 82 Bank of South Carolina, State v. (12 Rich. 609) 28 Bank of State v. Bank of Cape Fear (13 Ire. 75) 18 V. Cooper (2 Yerg. 599) 85 , State V. (45 Misso. 528) 36 a , State y. 1 S. C. 63) 82 , State V. (29 Md. 516) Banbury, Rex v. (1 A. & E. 136) Bancroft v. Dumas (21 Vt. 456) , State V. (22 Kan. 170) Banes, Reg. v. (Holt, 512) Bank of Hamilton v. Dudley (2 Pet. 492) Bank of Mobile v. Meagher (33 Ala. 622) Bank of North Bennington v. Ben- nington (16 Biatch. 53) Bank of Pennsylvania v. Common- wealth (7 Harris, Pa. 144) Bank of Rome v. Rome (18 N. T. Skotion Bank of Toledo v. Toledo (1 Ohio State, 622) 84 a Bank of United States v. Longworth (1 McLean, 35) 176 V. Norton (3 A. K. Mar. 423) 35 6 Bank of Utioa v. Wager (2 Cow. 712) 150 Bankers, &c. Benefit Assoc. State v. (23 Kan. 499) 36 a Banks, Ex parte (28 Ala. 28) 112 V. Darden (18 Ga. 318) 119 , People V. (67 N. Y. 568) 36 a V. State (28 Texas, 644) 248 Bannam, Reg. v. (1 Crawf. & Dix C. C. 147) 212 Bansemer v. Mace (18 Ind. 27) 112 Banvard, People v. (27 Cal. 470) 178 a Barbat v. Allen (7 Exch. 609) 77, 249 a Barber v. Gamson (4 B. & Aid. 281) 112 V. Tilson (3 M. & S. 429) 128 Barden v. Crocker (10 Pick. 388) 250, 252 Barefield v. State (14 Ala. 603) 225 Barger v. Manning (43 Ind. 472) 141 Barker u. Bell (46 Ala. 216) 98, 160 V. Esty (19 Vt. 131) 70, 76, 243 V. Pittsburgh (4 Barr, 49) 178 a w.-State (12 Texas, 273) 101 Barksdale v. Morgan (4 Mod. 185) 105 Barling v. West (29 Wis. 307) 19, 20 Barlow, Commonwealth v. (4 Mass. 489) 139, 142, 218 BarnaweUu.Threadgill (5 Ire. Eq. 86) 112 Barnes v. Jones (51 Cal. 303) 46 V. Mobile (19 Ala. 707) 77, 82 V. State (19 Conn. 398) 126 Barnett v. Woods (5 Jones Eq. 428) 35 Barnhart v. Cissna (42 Ind. 477) 141 Barr, People v. (44 III. 198) 154 , U. S. V. (4 Saw. 254) 158, 179 Barran, Reg. v. (Jebb, 245) 212 Barrels of High Wines, United States V. (7 Biatch. 459) 195 Barrels of Spirits, United States v. (2 Abb. U. S. 305) Barrett, Com'th v. (9 Leigh, 666) V. Long (8 H. L. Cas. 395) 154 220 119, 189 a 42 a Barrington's Case (8 Co. 136 b) Barrow, State v. (30 La. An. 657) 31, 152 V. Wadkin (24 Beav. 327) 78 Barry v. Viall (12 R. 1. 18) 31 Bartlet v. King (12 Mass. 537) 159, 163 Bartlett v. Kirkwood (2 Ellis & B. 771 ) 106 K. Morris (9. Port. 266) 46, 80, 102 V. Vinor (Carth. 251) Barto V. Himrod (4 Seld. 483) Bartol V. Calvert (21 Ala. 42) Bartolett v. Achey (2 Wright, Pa. 273) Barton v. Morris (15 Ohio, 408) V. Morris (10 Philad. 360) V. School Com'rs (Meigs, 585) , United States v. (Gilpin, 439) Bartree v. Houston, &c. Railroad (36 Texas, 648) 315 138 a 36 106 200 85 210 85 a 129 212 BER IKDEX TO THE CASES CITED. BLA Section Bash V. Evans (41 Ind. 144) 141 Bass V. Irvin (49 Ga. 436) 212 Bassett v. Carletfon (32 Maine, 553) 260a Battiste, U. S. v. (2 Sumner, 240) 225 Battle V. Shivers (39 Ga. 406) 46, 98 Baxter v. People (3 Gilman, 368) 146 v. State (10 Wis. 464) 103 V. Tripp (12 R. I. 310) 82 Bay City, &c. Railroad v. Austin (21 Mich. 390) Bay lis, Eex v. (Gas. temp. Hardw. 291) Beacall, Rex v. (1 Car. & P. 310, 464) Beall V. Harwood (2 Har. & J. 167) Beals V. Hale (4 How. U. S. 37) Beaney, Rex w. (Russ. & Ry. 416) Bear, Rex v. (2 Salk. 417) 135, 139 Bearcamp River Co. v. Woodman (2 Greenl. 404) 249, Beard, State v. (Smith, Ind. 276; i Ind. 460) Beardmer v. London, &o. Railway (1 Macn. & G. 112; 1 Hall & T. 161) Beardstown v. Virginia (76 111. 34) Beasley, State v. (5 Misso. 91) Beaston v. Farmers' Bank (12 Pet. 102) Beatty, Com'th v. (1 Watts, 382) Beaty, United States v. (Hemp. 487) Beaufort, State v. (2 Rich. 496) Beawfage's Case (10 Co. 996) Beckett, Rex v. (1 Moody & R. 526) Beckford v. Wade (17 Ves. 87) Beebee v. O'Brien (10 Wis. 481) Beeton, State v. (7 Baxter, 138) Bell's Case (Foster, 430) 193 244 204 70 160 247 250 a 50 77 92 a 243 212 177 193 22 102 216 131 177 a 128 204 Bell V. Crane (Law Rep. 8 Q. B. 481) 112 V. Dole (11 Johns. 173) V. Morrison (1 Pet. 351) , State V. (3 Ire. 506) , State V. (34 Ohio State, 194) Belleville Railroad v. Gregory (15 111. 20) Belmont v. Morrill (69 Maine, 814) Bemis v. Becker (1 Kan. 226) V. Leonard (118 Mass. 502) 108, 194 115 204 36 82 42 6 97 31a, 110 37 Bender v. State (53 Ind. 254) Benecke, United States v. (98 U. 447) 90 Beneke, State v. (9 Iowa, 203) 151 Benford K. Gibson (15 Ala. 621) 178 a Bennac v. People (4 Barb. 164) 242 Bennet, Com'th v. (2 Va. Cas. 236) 211 V. Talbois (1 Ld. Rayni. 149) 164 Bennett v. Boggs (Bald. 60) 85, 185 , Commonwealth v. (108 Mass. 20) 180 V. McWhorter (2 W. Va. 441) 103 , People V. (29 Mich. 451) 18 V. Ward (3 Caines, 259) 114 Bensley v. Ellis (39 Cal. 309) 83 a Benton v. Wickwire (64 N. Y. 226 72 Bergen, State «. (5 Vroom, 438) 42 6 Bergman, State v. (6 Oregon 341) 23, 24 316 Section Beridon v. Barbin (13 La. An. 458) 126, 156, 160 Berley v. Eampacher (5 Duer, 183) 84 Berlin v. New Britain (9 Conn. 175) 34 Berliner v. Waterloo (14 Wis. 378) 37 Berman, State v. (3 Hill, S. C. 90) 136 Bernard v. Vignaud (10 Mart. La. 482) 163 Berry v. Baltimore, &o. Railroad, (41 Md. 446) 37 V. People (36 111. 423) 24 , Rex V. (1 Moody & R. 463) 166 V. State (10 Ga. 511) 234 V. State (10 Texas Ap. 815) 82 , State V. (4 Halst. 374) 164, 167 , State V. (25 Misso. 355) 84 Best V. Gholson (89 111. 466) 119, 250 a Bethell, Reg. v. (6 Mod. 17) 167 Bettis V. Taylor (8 Port. 564) 193 Bevans, U. S. v. (3 Wheat. 336) 141 Beyman t-. Black (47 Texas, 558) 91 a Bibb County Loan Assoc, v. Rich- ards (21 Ga. 592) 36 a Bidwell V. Whitaker (1 Mich. 469) 70, 80 _. . _ . „. j^^ 107 126 36 a 178 86 Bigelow V. Stearns (19 Johns. 39) V. Willson (1 Pick. 485) Bilansky, State v. (3 Minn. 246) Billings V. New York (68 N. Y. 413) V. Segar (11 Mass. 340) Billingslea v. Baldwin (23 Md. 85) Bingham v. Winona (8 Minn. 441) 76 Binghampton Bridge (3 Wal. 51) 356 Birchfield, Ex parte (62 Ala. 377) 160, 164 Bird w. Baker (1 EUis & E. 12) 107 Birket, Rex v. (4 Car. & P. 216) 247 Birkenhead Docks v. Laird (4 De G., M. & G. 732 ; 23 Eng. L. & Eq. 389) 113, 160 Birmingham Canal, Rex v. (2 B. & Aid. 670) 189 c Birtwhistle v. Vardill (7 Cl. & F. 895) 61 Bishops' Case, The (12 Co. 7) 186 Bishop V. Barton (6 Thomp. & C. 6; 2 Hun, 436) 141 , State V. (7 Conn. 181) 250d , State V. (41 Misso. 16) 154, 156 a Black, State v. (9 Ire. 378) 220 Blackwell v. Old Colony Railroad (122 Mass. 1) 250 c Bladen v. Philadelphia (10 Smith, Pa. 464) 255,255 a Blain, Ex parte (12 Ch. D. 522) . 141 V. Bailey (25 Ind. 165) 154, 156 Blair v. Gary (9 Wis. 543) 84 , State V. (32 Ind. 313) 70, 192 Blake v. National Banks (23 Wal. 307) 37 V. Portsmouth and Concord Railroad (39 N. H. 435) 112 V. Sherman (12 Minn. 420) 265 Blakemore «. Dolan (50 Ind.l94) 366 Blanehard, Ex parte (9 Nev. 101) 35 V. Sprague (3 Sumner, 279) 243 Blandford v. State (10 Texas Ap. 627) 13 Blanding v. Burr (13 Cal. 343) 36 Blanford v. Morrison (15 Q. B. 724) 246 o BOW INDEX TO THE CASES CITED. BEI Section Blasdell v. State (5 Texas Ap. 263) 66, 58 Blatohley v. Moser (15 "Wend. 216) 171 Blessing v. Galveston (42 Texas, 641) 18, 37 Blevings v. People (1 Scam. 172) 126 Blick, Eex v. (4 Car. & P. 377) 246 Blimm v. Com'tli (7 Bush, 320) 255 Bliss V. Commonwealth (2 Litt. 90) 33 Blocker, State v. (14 Ala. 450) 137 Blodgett, Com'th v. (12 Met. 56) 205, 286 Bloodgood V. Grasey (31 Ala. 575) 115 Bloom V. State (20 Ga. 443) 163 Bloomer v. Stolley (5 McLean, 158) 147 Bloxam v. Elsee (6 B. & C. 169) 80 Blue V. McDuffie (Busbee, 131) 46, 48 Blythe, State v. (3 McCord, 863) 101, 204 Board of Public Schools v. Patten (62 Misso. 444) 11 a Board of State Canvassers, State v. (86 Wis. 498) 112 Bode V. State (7 Gill, 326) 238 Body V. Jewsen (33 Wis. 402) 255 Bofenschen, Succession of (29 La. An. 711) 11 Bond, State v. (4 Jones, N. C. 9) 31 Bonham's Case (8Co. 114 a) 40 Boogher, State v. (71 Misso. 631) 164, 166 Booker v. MoRoberts (1 Call, 243) 249, 250 a Boon, State v. (Taylor, 246) 41 Booth V. Carthage (67 111. 102) 160 V. State (4 Conn. 66) 208 Boozer, State v. (5 Strob. 21) 231 Bosley v. Mattingly (14 B. Monr. 89) 72 Bosse, State v. (8 Rich. 276) 139 Bostiek v. State (34 Ala. 266) 79 Boston V. Cummins (16 Ga. 102) 91, 18-5 V. Shaw (1 Met. 130) 22 Boston and Maine Railroad, Com- monwealth V. (3 Cush. 25) 108 Boston Mining, &c. Co. In re (51 Cal. 624) 36 a, 46 Bosworth V. Brand (1 Dana, 377) 137 , State V. (13 Vt. 402) 104 Boteler, Reg. w. (4 B. & S. 959) 112 Bound V. Wisconsin Central Rail- road (46 Wis. 543) 37 Bouser v. State (Smith, Ind. 408) 223 Bowden, Reg. v. (2 Moody, 285; 1 Car. & K. 147) 204, 234 V. State (2 Texas Ap. 56) 204 . Bowditch V. Balchin (5 Exch. 378) 198 Bowen-u. Lease (5 Hill, N. Y. 221) 154, 163 , Reg. V. (1 Den. C. 0. 22) 214 , State V. (3 Strob. 573) 163 , United States v. (100 U. S. 508) 98 Bowers v. Sonoma (32 Cal. 66) 112 Bowes V. Hope Life Ins. &c. Co. (11 H. L. Cas. 389) 112 Bowling-Green v. Carson (10 Bush, 64) 19, 20 Bowman v. Blyth (7 Ellis & B. 47) 255 a V. Middleton (1 Bay, 252) 40 V. Wood 41 111. 203) 107 Section Boyall, Rex v. (2 Bur. 832; 2 Keny. 549) 163 Boyce v. Douglass (1 Camp. 60) 164 Boyd V. Alabama (94 U. S. 645) 37 a V. Com'th (1 Rob. Va. 691) 111 V. State (53 Ala. 601 ) 36 a, 189 a Boykin v. State (50 Missis. 375) 265 Boyle, State v. (10 Kan. 113) 179 Boynton, Com'th v. (2 Mass. 77) 217 V. Curie (4 Misso. 599) 246 Brackett v. People (72 III. 593) 18, 426 Bradford v. Barclay (42 Ala. 375) 84 t). Jones (1 Md. 361) 45,46 , Reg. V. (2 Crawf. & Dix C. C. 41) 225 , State V. (36 Ga. 422) 84 Bradley, Com'th v. (16 Gray, 241) 84 , People V. (36 Mich. 447) 36a Bradshaw v. U. S. (14 Ct. of CI. 145) 86 Brady, State v. (41 Conn. 588) 23, 1126 , State V. (9 Humph. 74) 221 V. West (50 Missis. 68) 37 Bramston v. Colchester (6 Ellis & B. 246) 112 6 Brandon, State v. (28 Ark. 410) 163 Brandt, State v. (41 Iowa, 593) 243 Branham, State v. (13 S. C. 389) 163, 164 Branin, State v. (8 Zab. 484) 18 Branson v. Wirth (17 Wal. 32) 60 Braynard v. Marshall (8 Pick. 194) 356 Brecon, Reg. v. (3 New Sess. Cas. 434 ; 13 Jur. 422) 163 Breed, Commonwealth v. (4 Pick. 460) 38 , United States v. (1 Sumner, 159) 99 Breeme, Rex v. (1 Leach, 220; 2 East P. C. 1026) 142 Breitung v. Lindauer (87 Mich. 217) 152 a, 159 Brennan, Com'th v. (103 Mass. 70) 86 Breton, Rex v. (4 Bur. 2260) 19 Brett V. Beales (Moody & M. 416) 37 Brewer, State v. (22 La. An. 278) 75, 97, 177 Brewster, U. S. v. (7 Pet. 164) 204 Brice v. State (2 Tenn. 254) 17 Bridge Proprietors u. Hoboken Co. (1 Wal. 116) 356 Bridges, Eex v. (8 East, 53) 166 Brieswick v. Brunswick (51 Ga. 639) 22 Briggs, Commonwealth v. (5 Met. 559) 204 V. Hubbard (19 Tt. 86) 84 People V. (60 N. Y. 553) 36 a, 40 , United States v. (9 How. U. S. 351) 46, 48, 246 Bright V. McCullough (27 Ind. 223) 36 a Brightman v. Kirner (22 Wis. 54) 147 Brightside Birelow, Reg. «. 164 Brigbtwell v. State (41 Ga. 482) 255 Briley, State v. (8 Port. 472) 216 Brinker v. Brinker (7 Barr, 53) 190 Brinkerhoff, People v. (68 N. Y. 259) 36 o Bfinsfield v. Carter (2 Kelly, 143) 103 Brisco V. State (4 Texas Ap. 219) 248 Bristow, Commonwealth v. (6 Call, 60) 14 V. Sequeville (5 Exob. 275) 115 31T BEY INDEX TO THE CASES CITED. BUT Section British Prisoners (1 Woodb. & M. 66) 14 Britt, State v. (3 Dev. 122) 204 Britten v. Commonwealth (1 Cush. 302) 154, 163 Broadbent v. State (7 Md. 416) 82 V. Tuskaloosa Scientific, &c. Association (45 Ala. 170) 118 Broaddus v. Broaddus (10 Bush, 299) 98, 159 Brock V. Parker (5 Ind. 538) 84, 1 76 , State V. (11 Rich. 447) 163 Brodnax v. Groom (64 N. C. 244) 37 Brooklyn, People v. (8 Abb. Pr. n. s. 150) 186 Brooks, Com'th v. (109 Mass. 355) 20 V. Cook (44 Mich. 617) 245 V. Hyde (37 Cal. 366) i, 42 a V. Mobile (31 Ala. 227) 82 , People V. (1 Denio, 457) 112 , State V. (4 Conn. 446) 72, 200 Broome v. Wellington (1 Sandf. 664) 110c Bronson v, Newberry (2 Doug. Mich. 38) 83 a Brothers v. State (2 Coldw. 201) 83 o Bronghton v. Branch Bank (17 Ala. 828) 177 v. Gully (9 B. & C. 344) 186 Brown, In re (21 Wend. 316) 98 V. Buzan (24 Ind. 194) 91 V. Clegg ( 16 Q. B. 681 ) 126 a V. Commissioners (9 Harris, Pa. 37) 126, 156 V. Com'th (8 Mass. 59) 204, 214 w. Fifield (4 Mich. 322) 91a, 92, 119 V. Fleischner (4 Oregon, 132) 36 V. Gilmor (8 Md. 322) 85 a V. Hunn (27 Conn. 332) 208 V. Lester (13 Sm. & M, 392) 256 V. Maryland (12 Wheat. 419) 238 V. Miller (4 J. J. Mar. 474) 160 V. Painter (44 Iowa, 368) 103 a , People •>. (16 Wend. 561) 140 , Keg. r. (2 Car. & K. 504) 210 . Rex V. (2 East P. C. 1007) 167 «. State (23 Md. 503) 366 , State V. (16 Conn. 54) 208 , State V. (4 Port. 410) 204 , State V. (2 Speers, 129) 163 V. Thompson (14 Bush, 538) 192 u. Thorndike (15 Pick. 388) 70, 190, 190 d V. White Deer (3 Casey, Pa. 109) 250 a V. Wilcox (14 Sm. & M. 127) 84 V. Wright (1 Green, N. J. 240) 82 Bruce v. Delaware and Hudson Canal (19 Barb. 371) 250 o V. Schuyler (4 Gilman, 221) 82, 85, 86, 160, 163 Bruni.Inre (1 Barb. 187) 142 Brush V Bogardus (8 Johns. 167) 209 I Bryan v. Dennis (4 Fla. 445) 86 ' V. Sundberg (5 Texas, 418) 159 Bryant v. Liverraore (20 Minn 313) 86 318 Section Buchanan, Reg. v. (8 Q. B. 883 ; 16 Law J.N.s. Q.B.227; lOJur.736) 250c, 251 Buck V. Colbath (3 Wal. 334) 164 , Rex V. (1 Stra. 679) 250 V. Spofford (31 Maine, 34) 159 Buckallew v. Ackerman (3 Halst. 48) 163, 168, 170 Buckingham v. SteubenTille and Indiana Railroad (10 Ohio State, 25) 154 Buckley, State v. (54 Ala. 599) 37 Buckraan, State v. (8 N. H. 203) 163, 171 Buckner v. Street (1 Dil. 248) 82 Bucky V. Willard (10 Fla. 330) 34 Buffalo, People v. (4 Neb. 160) 112 , State V. (6 Neb. 454) 112 V. Webster (10 Wend. 100) 20 BufEum V. Tilton (17 Pick. 510) 164 Bulkeley v. Schutz (Law Rep. 3 P. C. 764) 141 Bull V. Read (13 Grat. 78) 36 Bullock, Rex v. (1 Taunt. 71) 81 Bump V. Commonwealth (8 Met. 533) 141 Burbank v. Fay (65 N. T. 57) 82, 150 Bureh v. Newbury (6 Seld. 374) 85a Burden v. Stein (25 Ala. 455) 141 Burgess v. Memphis, &c. Railroad (18 Kan. 53) 98 Burgett V. Burgett (1 Ohio, 469) 46, 72 Burginhofen v. Martm (3 Yeates, 479) 164 Burhop V. Milwaukee (21 Wis. 258) 42 . Batts (26 Texas, 703) 126, 156 r. Murray (28 Missis. 129) 246 n V. Paige (1 Pick, 43) 159, 161, 163 , Reg. V. (Car. & M. 564) 242 , Rex V. (5 B. & C, 395; 8 D. &R. 173) 141, 220 V. Whitlock (10 Misso. 781) 192 V. Whittier (37 Maine, 548) 178 Ellison V. Mobile and Ohio Railroad (36 iMissis. 572) 87 V. State (6 Texas Ap. 248) 163 Elmendorf !-. Taylor (10 Wheat. 152) 115 Elmondorfl'i'. Carmichael (3 Litt. 472) 50 Elmsly's Case (2 Lewin, 126) 246 Elrod V. Gilliland (27 Ga. 467) 152 , State V. (12 Rich. 662) 163 Elwood V. Bullock (6 Q. B. 383) 22 PAI INDEX TO THE CASES CITED. EIS , 1B8 200 70 101 82 177 106 37 36 144 190 6 255 37 6, 119 217 163 Section Ely V. Bliss (2 De G., M. & 6. 459) 153 V. Cash (15 M. & W. 617) 163 V. Holton (15 N. Y. 595) 152 a V. Thompson (3 A. K. Mar. 70) 34, 152 Emily, The, and The Caroline (9 Wheat. 381) Emporia v. Norton (16 Kan. 236) Enckeling v. Vou Wamel (26 Texas, 469) Enoking v. Simmons (28 Wis. 272) Engle V. Shurts (1 Mich. 150) Engleman v. State (2 Ind. 91) English V. Oliver (28 Ark. 317) u. State (7 Texas Ap. 171) Ennis v. Crump (6 Texas, 34) Enterprise, The (1 Paine, 32) 193, 194,200 Entick V. Carringtou (19 Howell S Tr. 1029) Erie, People v. (1 Buf. 517) Erie and North East Railroad i Casey (2 Casey, Pa. 287) Erlinger w. Boneau (51 111. 94) ; Erskine, Com'th v. (8 Grat. 624) Ervine «. Com'th (5 Dana, 216) Erwin v. Moore (15 Ga. 361) 81, 154, 159 Eskridge v. State (25 Ala. 30) 89 , State V. (1 Swan, Tenn. 413) 249 Essex, People v. (70 N, Y. 228) 76, 176 Estep V. Hutchman (14 S. & R. 435) 42 d Esterley's Appeal (4 Smith, Pa. 192) 119 Estrella, The (4 Wheat. 298) 163 Etheridge v. Cromwell (8 Wend. 629) 132 Eubanks v. State (5 Misso. 450) 24H Eustis V. Kidder (26 Maine, 97) 255 Evans v. Browne (30 Ind. 514) 37 V. Commonwealth (3 Met. 453) 41 , Com'th V. (13S. &R.426)159, 163, 168 V. Rees (9 C. B. n. s. 891) , Reg. V. (Car. & M. 298) w. Sharp (29 Wis. 564) V. State (1 Humph. 394) , State V. (7 Gill & J. 290) V. (3 Hill, S. C. 190; Evansville v. Bayard (39 Ind. 450) Evergreens, In re (47 N. Y. 216) Ewart V. Williams (3 Drewry, 21) Ewer V. Jones (2 Ld. Raym. 934) , Reg. V. (Holt, 612) Ewing's Case (5 Grat. 701) Excelsior Petroleum Co. o. Embury (67 Barb. 261) Exeter, Ex parte (10 C. B. 102) Exchange Bank v. Hines (3 Ohio State, 1) Eye, Rex w. (1 B. & C. 85) Eyston v. Studd (2 Plow. 459) 93 Ezekiel v. Dixon (3 Kelly, 146) 72, 81 153 204 86 a 216 167 163 156 a 154 77 250 a 164 84 160 103 34 112 Jaga-n, State v. (22 La. An. 545) 37, 38 Fiuhey, Commonwealth v. (5 Cush. 408) 22 Fairbanks v. Antrim (2 N. H. 105) 199 Section Fairbury, State v. (51 III. 149) 256 Fairfax w.. Hunter (7 Cranch, 603) 13 Fall V. Hazelrigg (45 Ind. 576) 97, 104 Fancher, People v. (50 N. Y. 288) 92, 92 a Fanshavv v. Morrison (2 Ld. Raym. 1138) 164 Faut V. People (45 111. 259) 23 Farley v. Boiiliain (2 Johns. & H. 177) 77 Farmer v. Fletcher (11 La. An. 142) 104 o V. People (77 111. 322) 179 Farmers' Bank u. Gunnell (26 Grat. 131) 11a V. Hale (59 N. Y. .53) 57, 65, 82 Farmers' Ine. Co. ;;. Highsmith (44 Iowa, 330) 36 a Farmer's Turnpike v. Coventry (10 Jolins. 389) 164, 249, 250 a Farr w. Braekett (30 Vt. 344) 159 Farrel Foundry v. Dart (26 Conn. 376) 72 Farrington, Rex v. (Russ. & Ry. 207) 163 Fauntleroy v. Hannibal ( 1 Dil. 118) 42 6 Favers v. Glass (22 Ala. 621) 101 Faversham, Rex v. (8 T. R. 352) 34 Fazakerly v. Wiltshire (1 Stra. 462) 34 Feagin v. Comptroller (42 Ala. 516) 95 a Fearing v. Irwin (55 N. Y. 486) 85 a Fearson, State v. (2 Md. 310) 204 Fehrenback, U. S. o. (2 Woods, 175) 46 Fein v. Territory (1 Wy. Ter. 376) 248 Feldman v. Morrison (1 Bradw. 460) 2-19 Felix V. State (18 Ala. 720) 166 Fellowes c. Clay (4 Q. B. 313) 48, 51, 75 Fellows V. Blacksmith (19 How. U. S. 366) 13, 14 Felt V. Felt (19 Wis. 193) 126 Fenelon, Petition of (7 Barr, 173) 177, 177 a Ferguson, State v. (62 Misso. 77) 84 Fergusson v. Fyffe (8 CI. & F. 121) '175 w. Norman (5 Bing. N. C. 76) 138a Fetter v. Wilt (10 Wright, Pa. 457) 223 Fickle V. St. Louis, &c. Railway (54 Misso. 219) 250 rf Fidler, Rex v. (4 Car. & P. 449) 214 , State V. (7 Humph. 502) 244 Field V. Des Moines (39 Iowa, 575) 17, 17 a V. Gooding (106 Mass. 310) 46, 255 V. People (2 Scam. 79) 137 , State V. (17 Misso. 529) 36 Fielding v. Rhyl Imp. Com. (3 C. P. •D. 272) 20, 22 Fields, State v. (2 Bailey, 554) 46, 82, 200 Files V. Robinson (30 Ark. 487) 31 Findlay, State v. (2 Bay, 418) 149, 204 Findley, State v. (1 Brev. 107) 48, 237 Fine, Case of (7 Co. 32 a) 103 Finlay, U. S. v. (1 Abb. U. S. 364) 177 Finn V. Haynes (37 Mich. 63) 83 a Finney v. Ackerman (21 Wis. 268) 84 First National Bank v. Prescott (27 Wis. 616) 255 Fisher v. Cockerill (5 T. B. Monr. 129) 85 a , Commonwealth v. (17 Mass. 46) 199 325 POX INDEX TO THE CASES CITED. GAL Sbotioit Fisher v. Deering (00 111. 114) 97 V. Harnden (1 Paine, 55) 13, U V. Harrisburg (2 Grant, Pa. 291) 22 V. Horicon Iron and Man., Co. (10 Wis. 351) 212 V. McGirr (1 Gray, 1) 83, 34 , U. S. V. (2 Cranch, 358) 46, 82 FisUe, State v. (9 R. I. 94) 3B Pitcli V. Kirkland (22 Wend. 132) 254 Fitzacherly i>. Wiltshire (11 Mod. 352) 34 Fitzgerald u. Champneys (2 Johns. & H. 31) 112 6 Fitzpatrick v. Turner (14 Fla. 382) 254 Flagg, People v. (46 N. Y. 401) 39 a, 40, 92 Flalierty v. Thomas (12 Allen, 428 j 186 Flanders, People v. (18 Johns. Ib4) 205 Flanigin, State a. (5 Ala. 477) 163, 167, 172 Flannelly, Cora'th v. (15 Gray, 195) 163 Fleming, State v. (7 Humph. 152) 33 , State V. (19 Misso. 607) 103 , State V. (2 Strob. 464) 242 Fletcher's Case (1 Leach, 342, note ; 2 Stra. 1166) 145 Fletcher v. Oliver (25 Ark. 289) 36 a V. Peck (6 Cranch, 87) 91 , State V. (5 N. H. 257) 138 , State K. (1 R. I. 198) 175, 176, 177 Flint, &c. Plank-road v. WoodhuU (25 Mich. 99) 40 Flint River Steamboat Co. o. Foster (5 Ga. 194) 11 Flockwold Inclosure, Ilex v. (2 Chit. 261) 112 Foliamb's Case (5 Co. 115 6) 137 Fordham, Reg. w. (11 A. & E. 73) 255, 255 a Fordyce v. Bridges (1 H. L. Cas. 1) 158 Forman v. Dawes (Car. & M. 127) 37 Forqueran v. Donnally (7 W. Va. 114) 86, 154 Forsyth u. Marbury, (R. M. Charl. 324) 82 Fort Plain Bridge v. Smith (30 N. Y. 44) 151 Fosdick V. Perry shurg (14 Ohio State, 472) 98 Foster's Case (11 Co. .^i6 6) 57, 159, 160, 104 Fosters. Blount (18 Ala. 687) 246 V. Commonwealth (8 Watts & S. 77) 163, 243 , Commonwealth r. (1 Mass. 488) 1.59 V. Medfield (3 Met. 1) 177 V. Neilson (2 Pet. 253) 14 , Rex V. (7 Car. & P. 495) 204 , State V. (61 Misso. 549) 256 Fouke V. Fleming (13 Md. 392) 86 Fourteen Hogs, Commonwealth v. (lOS. &R. 393) 132,223 Fowler v. Brown (5 Texas, 407) 163 V. Padget (7 T. R. 509) 243 V. Pirkins (77 111. 271) 67, 112, 154 !;. State (5 Day, 81) 49 Fox, In re (62 N. Y. 530) 212 V. Southack (12 Mass. 143) 14 326 Section Fox, United States v. (94 U. S. 315) 212 Fi-anee v. State (6 Baxter, 478) Frank, Ex parte (52 Cal. 606) Franklin v. Holden (7 R. I. 215) 163 22 110 6, 110 c Franklin Glass Co. v. White (14 Mass. 286) 137 Franklin Wharf v. Portland (67 Maine, 46) 21 Franklyn, Rex v. (1 Leach, 255) 135, 145 Franks, Rex v. (2 Leach, 644) 244 Frantz v. Harrow (13 Ind. 507) 83a Frederick v. Groshon (30 Md. 436) 160, 163 Frederickson v. State (23 How. U. S. 445) 13 Fredericton v. Reg. (3 Canada, S. C. 506) 36 Free Press Assoc, v. Nichols (45 Vt. 7) 265 Freeborn v. Smith (2 Wal. 160) 180 Freels, State v. (3 Humph. 228) 216 Freeman v. People (4 Denio, 9) 144 V. Read (4 B. & S 174) 110, 110 a V. State (6 Port. 372) 160 , United States v. (3 How. U. S. 566) 82, 104 Freeport v. Marks (9 Smith, Pa. 253) 38 Freese v. Tripp (70 111. 496) 97 Freleigh v. State (8 Misso. 606) 147, 211 French v. Edwards (13 Wal. 506) 255 V. Teschemaker (24 Cal. 518) 90 Fretwell v. Troy (18 Kan. 271) 20, 72 Friar v. State (3 How. Missis. 422) 255 Frierson v. Hewitt (2 Hill, S. C. 499) '222 Frisbie, People v. (26 Cal. 135) 85 a Frye v. Chicago, &g. Railroad (73 111. 399) 82 V. Partridge (82 111. 267) 16, 33 Fryeburg Canal v. Frye (5 Greenl. 38) 249, 230 a Fuller V. Edings (11 Rich. 239) 250a V. People (92 111. 182) 36 a V. State (1 Blackf. 63) 163, 164, 167 , State V. (14 La. An. 667) 160 , State V. (14 La. An. 720) 163 Fullerton t>. McArthur (1 Grant, Pa. 232) 85 a V. Spring (3 Wis. 667) 181 Fuqua v. Mullen (13 Bush, 467) 36 a Furman v. Nichol (3 Coldw. 432) 164 Gabbert v. Jeffersonville Railroad (11 Ind. 366) 36a Gable, Com'th «. (7 S. & R. 423) 112 Gabriel v. State (40 Ala. 357) 248 Gage, Com'th v. (114 Mass. 328) 20 ... Smith (79 III. 219) 97 Gainer, State v. (3 Humph. 39) 163 Gale V. Laurie (6 B. & C. 156) 82 Galena v. Amy (6 Wal. 705) 112 Gales, State y. (77 N. C. 283) 178 a Gallagher v. Neal (3 Pa. 183) 217 -^— , People V. (4 Mich. 224) 40 GIB INDEX TO THE CASES CITED. GOR Section Galsworthy v. Durrant (8 Weekly Eeporter, 594) 164 Gamble v. McCradv (75 N. C. 509) 34 Garber, State v. (7 Keb. 14) 256 Gardner v. Collector (6 Wal. 499) 29 t'. Collins (2 Pet. 58) US , Com'th V. (11 Gray, 438) 185 V. Lucas (3 Ap Cas. 582) 84 V. People (20 III. 430) 2i , People I). (45 N. Y. 812) 92 w. State (25 Md. 146) 79 Garland, State v. (7 Ire. 48) 103, 142 Garner v. Johnson (22 Ala. 494) 107, 111 Garonne, The, United States v. (11 Pet. 73) 231 Garrigus v. Parke (39 Ind. 66) 46, 81, 119 Garratt, Rex v. (6 Car. & P. 369) 245 Garrett, State v. (29 La. An. 637) 36 a V. Wiggins (1 Scam. 335) 82 Garrott v. Jaffray (10 Bush, 413) 141 Garthwaite, State v. (3 Zab. 143) 82 Gas Co. V. Wheeling (8 W. Va. 320) 76 Gasconade, State v. (33 Misso. 102) 110 Gaskin u. Anderson (55 Barb. 259) 36 a, 42 b V. Meek (8 Abb. Pr. n. s. 312) 36 a V. Meek (42 N. Y. 186) 36a, 42 b Gates V. Salmon (35 Cal. 576) 82 Gaul V. Brown (53 Maine, 496) 177 Gaylor's Appeal (43 Conn. 82) 104 Gaze, Rex «. (Russ. & Ry. 384) 139 Gearhart v. Dixon (1 Barr, 224) 138 Gee, Commonwealth v. (6 Cush. 174) 220 Geebrick v. State (5 Iowa, 491) 36 Genkinger v. Com'th (8 Casey Pa. 99) 177 Genung, People v. (11 Wend. 18) 225 George, Ex parte (T. U. P. Charl. 80) 41, 222 V. Board of Education (33 Ga. 344) 70, 82 V. Skeates (19 Ala. 738) 159, 160 Georgia Railroad v. Kirkpatrick (35 Ga. 144) 163 .Gerke, People v. (5 Cal. 381) 13, 14 Germania v. State (7 Md. 1) 212 Gertrude, The (3 Story, 68) 132 Getchell, Com'th v. (16 Pick. 452) 90, 180 Gholston V. State (33 Texas, 342) 248 Gibbons v. Brittenum (56 Missis. 2.32) 65, 67 Gibbs, Com'th v. (4 Dall. 223) 283 Gibert, U. S. v. (2 Sumner, 19) 167 Giboney v. Cape Girardeau (58 Misso. 141) 18 Gibson v. Barton (Law Kep. 10 Q. B. 329) 106 V. Belcher (1 Bush, 145) 36 a V. Com'th (6 Norris, Pa. 253) 119 V. Jenney (15 Mass. 205) 155 , Rex V. (1 East P. C. 413) 135 V. State (38 Ga. 571) 190 e, 193 Giddings v. Cox (31 Vt. 607) 159 u. San Antonio (47 Texas, 548) 36 a Gies, People v. (25 Mich. 83) 92 a, 102 Section Gifford V, New Jersey Railroad (2 Stockton, 171) 36a Gilbert, People v. (18 Johns. 227) 103, 142 V. United States (8 Wal. 358) 92 b Gill, People v. (7 Cal. 356) 59 V. State (30 Texas, 514) 154 Gillbrass, Rex v. (7 Car. & P. 444) 245, 247 Gillespie v. State (9 Ind. 380) 41, 91 GiUick, State v. (7 Iowa, 287) 255 Gillman v. Sheboygan (2 Black, 510) 103 Gilmer v. Lime Point (19 Cal. 47) 119 Gilmore v. Dawson (64 Misso. 310) 250 d V. Shuter (T. Jones, 108) 85 a , U. S. w. (8 Wal, 330) 85 6,97,104 Girdleston V.Allan (1 B.&C. 61) 112 Girkin, State u. (1 Ire. 121) 204 Givens v. Rogers (11 Ala. 543) 206 Glace, State v. (9 Ala. 283) 204 Gladney v. Deavors (11 Ga. 79) 103 Glaholm v. Barker (Law Rep. 1 Cli. Ap. 223) 186 Glass V. State (30 Ala. 529) 98 Glastonby, Rex o. (Cas. Temp. Hardw. 355) 195 a Glenn u. Hebb (17 Md. 260) 105 V. Humphreys (4 Wash. C. C. 424) 103 Glover, Rex v. (2 Russ. Crimes, 3d Eng. ed. 146) 204 Gloversville v. Howell (7 Hun, 345) 36 a V. Howell (70 N. Y. 287) 36 a, 112 a. 112 & Glufi,R.exw. (12 Mod. 104) Goddard v. Boston (20 Pick. 407) Godet, State v. (7 Ire. 210) Godfrey, State v. (8 Fairf 361) Goding, Com'th v. (3 Met. 130) Goetze, State v. (22 Wis. 363) Gohen v. Texas Pacific Railway (2 Woods, 346) Goldsmith v. Augusta, &c., Railroad (62 Ga. 468) Gooch V. Stephenson (13 Maine, 371) 163, 164, 2.50 Goode, In re (3 Misso. Ap. 226) 16,36 a V. Webb (52 Ala. 452) 110 Goodenow v. Buttrick (7 Mass. 140) 159, 163 Gooding, U. S. v. (12 Wheat. 460) 100 Goodnow. Oshkosh (31 Wis. 127) 152 a, 186 Goodrich v. Milwaukee (24 Wis. 422) 154 V. Russell (42 N. Y. 177) 82 Goodsell V. Boynton (1 Scam, 555) 28 Goodwin v. Thompson (2 Greene, Iowa, 329) 155, 163 Gordon v. Earquhar (Peck, 155) 231 V. Inghram (1 Grant, Pa. 152) 85 V. Kerr (1 Wash. C. C. 322) 13 , Rex t). (IB. & Aid. 524) 150 V. State (4 Kan. 489) 179 Gorham v. Bishop of Exeter (5 Exch. 630) 77 V. Luckett (6 B. Monr. 146) 16',l Gorman v. Hammond (28 Ga. 85) 163 327 250 82, 154 247 111 82 112 a 154 37 153, GKE INDEX TO THE CASES CITED. HAL Sectioh Gorman v. Pacific Railroad (26 Misso. 441) Goshen, &c., Turnpike, People v. (11 Wend. 597) Gosselink v. Campbell (4 Iowa, 296) Gossler v. Goodricli (3 Clif. 71) Gould, Rex v. (2 East P. C. 644 ; 1 Leach, 339, note) Governor v. Howard (1 Murph. 465) V. Porter (5 Humph. 165) Grace v. Donovan (12 Minn. 580) Graciaw. Lee (12 Pet. 511) Grady, State v. (34 Conn. 118) Grasme v. Wrougliton (11 Exch. 146) Graham, Ex parte (13 Rich. 277) 84, 177 a 178 V. Charlotte, &c. Railroad (64 N. C. 631) , Rex I'. (2 East P. C. 945) Grammar Scliool v. Burt (11 Vt. 632) Granger's Case (1 East P. C. 413) Grant v. Courter (24 Barb. 232) V. Sels (5 Oregon, 243) Grasseley, Reg. v. (2 Dy . 210 b, pi. 25) Gratrex, Reg. v. (12 Cox C. C. 157; 2 Eng. Rep. 210) Graves v. State (6 Texas Ap. 228) Gravesend, Rex v. (3 13. & Ad. 240) Gray v. Coffman (3 Dil. 393) V. Mount (45 (owa, 591) 9i V. Obear (54Ga. 231) , Rex V. (7 Car. & P. 164) V. Soanes (2 Jur. 1040) Great Central Gas Consumers' Co. v. Clarke (13 C. B.N. s. 838) 112 i Greeley v. Jacksonville (17 Fla. 174) 154 84 a 141 22 152 a 233 177 85 i 178 14 127 138 a 79 206 83 a 135 36 154 132 84 31 138 a 14 !, 160 186 l.'Bg 48,49 Green v. Aker (11 Ind. 223) V. Biddle (8 Wheat. 1) 0. Cheek (5 Ind. 105) , Com'th V. (17 Mass. 515) V. Green (14 La. An. 39) V. New York (2 Hilton, 203) , State V. (66 Misso. 631) V. United States (9 Wal. 055) V. Weller (32 Missis. 650) V. Wood (7 Q. B. 178) Greencastle Southern Turnp.i;. State (28 Ind. 382) 366, Greencastle Township v. Black (5 Ind. 557) Greene v. Tyler (3 Wright, Pa. 361) Greensburgh v. C'orwin (58 Ind. 618) 14, 92 b 12 80,82 141 37 a 137 110 c 103 37, 101 243 366, 104 a 92 150 24 Greenwood o. State (6 Baxter, 567) 23, 24 Greer, People v. (43 III. 213) V. State (54 Missis. 378) V. State (22 Texas, 588) 82 77 152 a, 163, 177 Gregory's Case (6 Co. 19 b) 57, 126, 156 Gregory v. Com'th (2 Dana, 417) 16.j, 171 , Rex V. (2 Nev. & M. 478; 6 B. & Ad. 555) 211, 252 , State V. (47 Conn. 276) 190 d Greig V. University of Edinburgh (Law Rep. 1 H. L. Sc. 348) 103 328 Section Greiher v. Klein (28 Mich. 12) 97 Grey v. Mobile Trade Co. (55 Ala. 387) 177 o Gridley v. Bloomington (88 111. 554) 22 Griffin's Case (Chase Dec. 364) 86 Griffin, Com'th D (105 Mass.' 185) 248 , People V. (2 Barb. 427) 223 V. State (39 Ala. 541) 177 , State V. (3 Harring. Del. 560) 238 , State V. (18 Vt. 198) 211 Griffith V. Carter (8 Kan. 565) 46 V. Wells (3 Denio, 226) 254 Grinad v. State (34 Ga. 270) 177 Grinder v. Nelson (9 Gill, 299) 180 Griswold v. Atlantic Dock (21 Barb. 225) 130 Groombridge, Rex v. (7 Car. & P. 582) 131 Gropp V. People (67 III. 154) 154 Gross V. Fowler (21 Cal. 392) 101, 105 " .. . .-. 20 82 36 a , 181 83 o 20 193 99 204 163 91 46 163 64 Grover v. Huckins (26 Mich.' 476) Guard v. Rowan (2 Scam. 499) Guild V. Chicago (82 111. 472) 36, Gumber, State v. (37 Wis. 298) 177 Gunn V. Barry (15 Wal. 610) Gunnarssohn v. Sterhng (92 111. 569) Gunter v. Leckey (30 Ala. 591) Gupton, State v. (8 Ire. 271) Gurney, State v. (33 Maine, 527) , State V. (2 S. C. 559) Gutman v. Virginia Iron Co. (5 W. Va. 22) Gwenop, Rex v. (3 T. R. 133) Gwinner v. Lehigh, &c. Railroad (5 Smith, Pa. 126) Gye V. Felton (4 Taunt. 876) Hadden v. The Collector (5 Wal. 107) 46 Hadley, Com'th v. (11 Met. 66) 131 Haehnlen v. Commonwealth, (1 Harris, Pa. 617) 10.3 Hagenbuck V. Reed (3Neb. 17) 82 Ilagerstown v. Dechert (32 Md. 369) 34 V. Seliner (.37 Md. 180) 85 Hahn v. United States (14 Ct. of CI. 305) 104 Haines w. State (7 Texas Ap. 30) 108a Halberstadt, United States r. (Gilpin, 262; 163, 169 Hale V. Burton (Dudley, Ga. 105) 193, 254 u. Lawrence (3 Zab. 590) 115 , Reg. V. (2 Car. & K. 326) 204, 216 V. State (15 Conn. 242) 152, 163, 175, 176 Haley c. Clark (26 Ala. 439) 33 i>. Philadelphia (18 Smith, Pa. 45) 16, 85 6 Halfin V. State (5 Texas Ap. 212) 177 Hall's Case (Cro. Eliz. 307) 243 Hall, Ex parte (1 Pick. 261) 101 V. Jacobs (4 Har. & J. 245) 146 , Rex y. (1 B. & C. 123) 98 a HAE INDEX TO THE CASES CITED. HAY Section- Hall V. State (4 Harring. Del. 132) ' 238 V. State (3 Kelly, 18) 213 V. State (20 Ohio, 7) 193, 220 V. State (39 Wis. 79) 178 a Hallet V. Novion (14 Johns. 273) 254 Hallett, Reg. v. (2 Den. C. C. 237; 4 Eng. L. & Eq. 570) 137 Halliswell v. Bridgewater (2 Ander- son, 180) 59 Halloek, State v. (14 Nev. 202) 34 Haltonp. Cove (1 B. & Ad. 538) 49 Ham 0. McCiaws (1 Bay, 93) 40, 82, 90 V. State (7 Blackf. 314) 154 V. Steamboat Hiimbure (2 Iowa, 460) " 249 Hamilton v. Buxton (1 Eng. 24) 163 , Reg. V. (1 Car, & K. 212) 94, 141 , Reg. V. (8 Car. & P. 49) 233 V. State (3 Texas Ap. 643) 23, 24 Hamlet v. Taylor ( 5 Jones, N. C. 36) 28, 31 a Hamlyn v. Nesbit (37 Ind. 284) 159, 163 Hammond, Rex v. (2EastP. C. 1119; 1 Leacli, 444) 194, 220 V. State (14 Md. 135) 212 V. Webb (10 Mod. 281) 190 Hammons !,-. State (8 Texas, 272) 254 Hampden, Com'th v. (6 Pick. 501) 177, 178 Hamriok c. Rouse (17 Ga. 56) 147 Hamuel v. State (5 Misso. 260) 220 Hancock v. Sturges (13 Johns. 331) 231 Hancock Free Bridge, Common- wealth V. (2 Gray, 58) Hand y. Ballou (2 Kernan, 541) Haney v. State (34 Ark. 263) Hannahan v. State (7 Texas Ap. 664) 185 Hanway v. Boiiltbee (4 Car. & P. 350 ; 1 Moody & R. 15) Happeli). Brethauer (70 III. 186) Harbaugh v. Monmouth (74 111. 367) Harbeck v. New York (10 Bosw. 366) Harbert's Case (3 Co. 11 b) 6, Hareourt v. Fox (1 Show. 506) Hardee v. Gibbs (50 Missis. 802) Hardeman v. Downer (39 Ga. 425) Hardenbergh v. Van Keuren (4 Abb. N. Cas. 43) Hardin v. Major (4 Bibb, 104) Harding, Commonwealths. (6 Norris, Pa. 343) 14,92/) Hardy v. Bern (5 T. R. 636) 112 Harker, State v. (4 Harring. Del. 559) 160, 163 Harkness, State v. (1 Brev. 276) 82 Harley, Commonwealth v. (7 Met. 462) 134 , Rex V. (4 Car. & P. 369) 210 Harold v. Smith (5 H. & N. 381) 195 a Harpending v. Dutch Church (16 Pet. 455) 115 ». Haight (39 Cal. 189) 37 Harper v. Carr (7 T. R. 270) 141 , People V. (91 111. 357) 42/. Harrell v. Harrell (8 Fla. 46) 86 Harriet, The (1 Story, 251) 82, 194, 200 Harris v. Carson (7 Leigh, 632) 150 225 163 79 141 77 a 26 152 139 159 37 85 a 36 a 105 Seotion Harris, Com'th v. (13 Allen, 534) 141 , Com'th V. (8 B. Monr. 373) 214 V. Glenn (56 Ga. 94) 85 a V. Morse (49 Maine, 432) 110 c V. People (59 N. Y. 599) 36 a , Reg. V. (Car. & M. 661) 214 , Rex V. (7 Car. & P. 446) 212, 245 , Rex V. (4 T. R. 202) 250, 251 V. Robinson (2 C. B. 908) 154 , State V. (5 Ire. 287) 100 , State V. (17 Ohio State, 608) 255 Harrison o. Chiles (3 Litt. 194) 163 , Commonwealth v. (11 Gray, 310) 143 V. Godman (1 Bur. 12) 20 V. Leach (4 W. Va. 383) 119 , Rex v. (1 Leach, 180 ; 2 East P. C. 926) 212 V. Sager (27 Mich. 476) 97 V. Smith (4 W. Va. 97) 119 V. Walker (1 Kelly, 32) 86, 186 Harrod w. Worship (1 B. & S. 381) 189 c Hart V. Cleis (8 Johns. 41) 190 d V. Middleton (2 Car. & K. 9) 105 V. People (89 111. 407) 36 6 , People V. (1 Mich. 467) 82 V. Plum (14 Cal. 148) 255 V. State (40 Ala. 32) 83 a , State V. (4 Ire. 246) 237 , United States v. (Pet. C. C. 390) 131 Hartley v. Hooker (Cowp. 523) 198, 250 Hartnett, Commonwealth v. (3 Gray, 450) 97, 233, 234 , Reg. V. (Jebb, 302) 255 Hartung v. People (22 N. Y. 95) 185 II. People (26 N. Y. 167 ; 28 N. Y. 400) 185 Harrey, Rex r. (1 Wils. 164) 189 6 Harward v. St. Clair, &c. Drainage Co. (51 III. 130) 18 Harwich, Reg. v. (8 A. & E. 919) 112 Haskell, People v. (5 Cal. 357) 178 a Hassel, Rex v. (1 Leach, 1 ; 2 East P. C. 598) 213 Hastings v. Aiken (1 Gray, 163) 186, 208 V. Cunningham (39 Cal. 137) 119 V. Lane (15 Maine, 134) 82 Hatch, People v. (19 111. 283) 39 Hathaway v. Johnson (55 N. Y. 93) 134,, 197 V. Moran (44 Maine, 67) 254 Hatwood V. State (18 Ind. 492) 36 a Hauenstein v. Lynham (100 U. S. 483) 11 a, 13 Haughton, Reg. v. (1 Ellis & B. 501) 50 Haver v. Yaker (9 Wal. 32) 32 Hawkins v. State (3 Stew. & P. 63) 163,220 Hawthorn, State v. (9 Misso. 389) 137 V. State (58 Missis. 778) 189 a Hay, State i>. (29 Maine, 457) 22 Hayden >'. Carroll (3 Ridgw. P. C. 545) 154 V. Noyes (5 Conn. 391 ) 20 , People 1.. (50 N. Y 525) 40 Hayes v. Porter (22 Maine, 371) 250 h — '- V, Hanson (12 N. H. 284) 82 V. State (55 Ind. 99) 174 329 HIC INDEX TO THE CASES CITED. HOL Section Haynes, Com'th v. (107 Mass. 194) 112 V. Jenks (2 Pick. 172) 154 !■. State (3 Humph. 480) 178 a V. Slate (5 Humph. 120) 41, 231 Hays, State v. (52 Misso. 578) 84 Hayward, Com'th v. (10 Mass. 34) 217 Haywood v. Collins (60 111. 328) 141 V. Savannah (12 Ga. 404) 126 Hazen v. Essex (12 Gush. 475) 250a Head v. Ward (1 J. J. Mar. 280) 84 Heald v. State (36 Maine, 62) 177 Healey v. Dudley (5 Lans. 115) 42 6 Heard v. Heard (8 Ga. 380) 28 V. Pierce (8 Cush. 338) 187 Hearn v. Ewin (3 Coldw. 399) 119 Heath, Ex parte (3 Hill, N. Y. 42) 255 Heaton v. Butler (41 Ind. 143) 141 Hedges v. Titus (47 Ind. 145) 112 a Helen, The, United States v. (6 Cranch, 203) 177, 180 Helgen, State r. (1 Speers, 310) 250 Helmore v. Shuter (2 Show. 16) 85 a Heming, Rex v. (2 East P. C. 1116 ; 1 Leach, 445, note) 228 Hemmings, Rex v. (3 Salk. 187) 250 Henderson's Tobacco (11 Wal. 652) 158 Henderson, Reg. u. (Car. & M. 328) 231 0. Sherborne (2 M. & W. 236) 168 K. State (50 Ind. 234) 36 a , State V. (2 Dev. & Bat. 543) 163 Hennessey, People v. (15 Wend. 147) 204 Henniker v. Contoocook Valley Rail- road (9 Fost. N. H. 146) 250,250 a Henry v. Henry (13 Ind. 250) 163 K. Tilson (17 Vt. 479) 77,82 Henscliall v. Schmidtz (50 Misso. 454) 84 Herber v. State (7 Texas, 69) 185 Herefordshire, Rex «. (3 B. & Aid. 581) 110 Herman v. Phalen (14 How. U. S. 79) ■ V. Sprigg (3 Mart. n. s. 190) 92 a 160, 163 245 20 212 Hermance, In re (71 N. Y. 481) Herod, State v. (29 Iowa, 123) Herold, State v. (9 Kan. 194) Herrick, Commonwealth v. (6 Cush. 465) 163, 173 Herron, United States v. (20 Wal. 251) 103 Hertford College, Reg. v. (3 Q. B. D. 693) 77 Herzog, State v. (25 Minn. 490) 163 Hesketh v. Braddook (3 Bur. 1847) 20 Hess V. Johnson (3 W. Va. 645) 85 V. Pegg (7 Nev. 23) 92, 98 Ileward v. State (13 Sm. & M. 261) 226 Hevves, United States r. (Crabbe,307) 142 Hewey v. Nourse (54 Maine, 256) 144 Hey don's Case (3 Co. 7) 82 Hickerson v. Benson (8 Misso. 8) 216 Hickman v. Littlepage (2 Dana, 344) 163 , Rex !• (1 Leach, 318 ; 2 East P. C. 593) 194, 204 , Rex V. (1 Moody, 34) 242 830 Seotiost Hickory Tree Road (7 Wright, Pa. 139) 176, 177, 177 a Hicks V. Butrick (3 Dil. 413) 14 , People V. (15 Barb. 153) 137 Hightower u. Fitzpatrick (42 Ala. 597) 144, 250 a Hildreth v. Heath (1 Bradw. 82) 141 Hiler, U. S. v. (Morris, 330) 220, 231 Hill V. Decatur (22 Ga. 203) 36 a V. Hall (1 Ex. D. 411) 126, 156 , People V. (7 Cal. 97) 34 , Rex V. (Russ. & Ry. 483) V. Smith (Morris, 70) , State V. (79 N. C. 6-56) , State V. (2 Speers, 150) Hills V. Chicago (60 III. 86) , People V. (35 N. Y. 449) Hind V. Rice (10 Bush, 528) Hiner v. Pavy (40 Ind. 341) Hinton v. Locke (5 Hill, N. Y. 437) Hinze v. People (92 111. 406) Hipswell, Rex v. (8 B. & C. 466) Hipwell V. Knight (1 Y. & Col. Ex. 401) Hirschfelder v. State (18 Ala. 112) Hitchings, Com'th v. (5 Gray, 482) Hitchins v. Kilkenny, &c. Railway (9C. B. 536) 250 a Hoagland v. Sacramento (52 Cal. 142) Hoar, United States v. (2 Mason, 311) 146 149 248 255 92 a 42 6 36 a 141 150 34 138 a 105 163 34 83 o 103 Hobbs u. Memphis, &e. Railroad (9 Heisk. 873) 97 Hoblyn v. Rex (2 Bro. P. C. 329) 22 Hoboken, State v. (4 Vroom, 280) 19 Hockaday v. Wilson (1 Head, 113) 154 Hodgdon, People v. (55 Cal. 72) 82 Hodge V. Hodge (72 N. C. 616) 152 Hodges, Rex v. (Moody & M. 341) 223 V. State (8 Ala. 55) 163. 169 Hodgman v. People (4 Denio, 235) 204 Hodnett, Rex v. (1 T. R. 96) 77, 82 Hodson, United States v. (10 Wal. 395) 195 " " " ■ "■ 93 159 255 101 90 22 36 40 Hofeman, People v. (37 N. Y Hogan I). Guigon (29 Grat. 705) Hogg, Reg. 0. (2 Moody & R. 380) , Rexw. (1 T. R. 721) V. Zanesville Canal and Man- facturing Co. (5 Ohio, 410) Hoggatt V. Bigley (6 Humph. 236) Hoke, Com'th v. (14 Bush, 668) V. Henderson (4 Dev. 1) Holbrook v. Holbrook (1 Pick. 248) 48, 82, 86, 93, 190, 190 d u. Nichol (36 111. 161) 152 n Holcomb I'. Davis (56 111. 413) 36 Ilolden V. Joy (17 Wal. 211) 14 Holland's Case (4 Co. 76 a) 42 c Holland v. Dickerson (41 Iowa, 367) 85 a V. Makepeace (8 Mass. 418) 82 Holliday, State v. (61 Misso. 229) 108 u Holman, State v. (29 Ark. 58) 163 -, State V. (3 McCord, 306) 240 HUD INDEX TO THE CASES CITED. IND Section Holmes v. Johnson (9 Wright, Pa. 159) 150 V. Tutton (5 EUis & B. 65) 128 , United States v. (5 Wheat. 412) 141 Holt V. State (2 Texas, 863) 185 Holt County Court, State v. (39 Misso. 521) 112 Roman v. Liswell (6 Cow. 659) 107 Homer, Commonwealth v. (5 Met. 555) 204 Hood V. Dighton Bridge (3 Mass. 26.3) 113 Iloolier V. Hoolcer (10 Sm. & M. 599) 82 V. Young (5 Cow. 269) 255 Hooper, Commonwealth «. (5 Pick. 42) 207 V. State (56 Ind. 153) 132 Hoover, Com'tli «. (1 Browne, Pa. App. 25) 149 V. Wood (9 Ind. 286) 85 a Hope V. Johnson (2 Yerg. 125) 176, 185 Hope Mansell, Rex v. (Cald. 252) 88 Hoplsins V. Jones (22 Ind. 310) 84 V. Chambers (7 T. B. Monr. 257) lOB V. Commonwealth (3 Met. 460) 204 V. Presfott (4 C. B. 578) V. Swansea (4 M. & W. 621) Horan, State w. (11 Texas, 144) Home Tooke's Case (25 Howell St. Tr. 1) Homey v. Sloan (1 Ind. 266) Horsey, State v. (14 Ind. 185) Horton v. Mobile (43 Ala. 598) 70, 77, 154 Hotaling v. Cronise (2 Cal. 60) 193 Houghton, Commonwealth v. (8 Mass. 107) Houk V. Barthold (73 Ind. 21) House V. State (41 Missis. 737) Houston V. Bogle ( 10 Ire. 496) i\ Moore (5 Wheat. 1) Hover v. Pennsylvania Co. (25 Ohio State, 667) Howard v. Bodington (2 P. D. 203) Seotioit Hudson V. St. Louis, &o. Railway, 138 a 18 163 71 22 168 204 190 c 156 83 a 142 141 255 255(1 , Com'th V (13 Mass. 221) 250 d V. Savannah (T. U. P. Charl. 173) 22 V. State (5 Ind. 183) 177 , State V. (82 N. C. 62.3) 110 c , State V. (15 Rich. 274) 180 Howell t'. Cassopolis (35 Mich. 471) 112 b , People V. (4 Johns. 296) 194, 204 , Reg. V. (9 Car. & P. 437) 214,223 V. Stewart (54 Misso. 400) 249 Howes, In re (6 Law Reporter, 297) 28 , Com'th V. (15 Pick. 231) 119, 137 Howland Coal, &c. Works v. Brown, (13 Bush, 681) 36 a Howlett V. State (5 Yerg. 144) 55, 82 Hoye V. Swan (5 Md. 237) 40 Hoyer v. Mascoutah (69 111. 137) 24 Hoyt V. Thompson (3 Sandf. 416) 115 V. Thompson (1 Seld. 320) 232 Hubbard u. State (2 Texas Ap. 506) 177 Huber o. Steiner (2 Scott, 304; 2 Bing. N. C. 202) 115 Hudd V. Ravenor, (2 Brod. & B. 662) 112 Hudgins v. State (2 Kelly, 173) 204 Hudler v. Golden (36 N. Y. 446) 120 (53 Misso. 625) V. Thorne (7 Paige, 261) V. Tooth (3 Q, B. D. 46) Huffa. Alsup(64Misso. 51) Huffman v. State (29 Ala. 40) Huggins V. Ball (19 Ala. 587) Hughes V. Chester, &c (1 Drew. & S. 524) V. Edwards (9 Wheat. 489) V. Farrar (45 Maine, 72) V. Griffiths (13 C. B. n. s V. Hughes (Carter, 125) V. State ( 12 Ala. 458) V. State (1 Eng. 131) Hull «. Miller (4 Neb. 603) V. State (3 Kelly, 18) , State V. (21 Maine, 84) Hulse, People v. (3 Hill, N. Y. 309) Hume V. Gossett (43 111. 297) Humphries, Com'th v. (7 Mass. 242) V. Dawson (38 Ala. 199) V. State (5 Misso. 203) Hunt V. Holden (2 Mass. 168 i8) 3) 250 d 20 198 46 82, 190 e 163 Railway, 49 13,14 98 324) 110 c 82 139 193, 217 37 140 244 198 154 144 164 216 105 , Hunt (37 Maine, 333) 177 a V. Jennings (5 Blackf. 195) 177, 177 a V. Murray (17 Iowa, 313) 31 , People V. (41 Cal. 435) 186 V. State (7 Texas Ap. 212) 163 Huntington v. Cheesbro (57 Ind. 74) 20 , State V. (3 Ere v. Ill) 163 Huntsville v. Phelps (27 Ala. 55) 41 Hurford v. Omaha (4 Neb. 336) 255, 255a Hurl, Ex parte (49 Cal. 557) 20 Hurlbut, People v. (24 Mich. 44) 36 a, 37 Hurst V. Hawn (5 Oregon, 275) 154 , Rex V. 11 Mod. 140) 250 Hurt V. State (19 Ala. 19) 237 Huston V. Roosa (42 Ind. 386) 141 Hutchen v. Niblo (4 Blackf. 148) 82 Hyatt V. Taylor (42 N. Y. 258) » 72 Hyde v. Cogan (2 Doug. 699) 189 d, 196 n. White (24 Texas, 127) 109 Hyer V. Van Valkenburgh (8 Cow. 260) 107 Hylton V. Brown (1 Wash. C. C. 343) 32 Hymen, Rex «. (7 T. R. 536) 195, 250 d Hyslop V. Hoppock, (6 Bankr. Reg. 557 ) 141 Igoe V. State (14 Ind. 239) 36 a Illinois, &c. Canal, People v. (3 Scam. 153) 82 Illinois Land and Loan Co. u. Bonner (75 111. 315) 254 Illinois and Michigan Canal v. Chi- cago (14 111. 334) 159, 163, 177, 177 a India, The (Browning & L. 221) 149 Indiana o. Agricultural Society, (4 Norris, Pa.) 357 16, 92o Indiana North and South Railway w. Attica (56 Ind. 476) 119 Indianapolis v. Fairchild (1 Ind. 315 ; Smith, Ind. 122) 22 331 JEN INDEX TO THE CASES CITED. JON Section Indianapolis v. Imberry (17 Ind. 175) 84 Indianapolis and Oinuinnati Railroad I). Kinney (8 Ind. 402) 119 Industrial Scliool District v. Wliite- head (2 Beasley, 290) 159 Ingall, Reg. v. (2 Q. B. D. 199) 255 Ingersoll v. State (11 Ind. 464) 151 , State V. (17 Wis. 631) 177 Ingraham v. Regan (2::! Missis. 213) 97 0. Speed (30 Missis. 410) 70, 81 Ingram v. Foot (1 Ld. Raym. 708 ; 12 Mod. 611) 42 c , Rex. V. (1 Ld. Raym. 215) 255 Inlfster u. Carver (16 Mieii. 484) 91 Inman u. State (54 Ga. 219) 98 Innerarity v. Mims (1 Ala. 660) 32 Innes t'. Wylie(l Car. &K. 257) 141 Intoxicating Liquors, Com'th v. (97 Mass. 601) 110 6,110 c Iowa Homestead Co. v. Webster (21 Iowa, 221) 90 Ipswich Union, Reg. v. (2 Q. B. D. 269) 84 Iron Mountain Co. v. Haiglit (39 Cal. 540) 107 Irresistible, Tlie (7 Wlieat. 551) 177, 180 Irwin, U. S. v. (5 McLean, 178) 154, 163 Isaacs V. Royal Ins. Co. (Law Rep. 5 Ex. 296) 31 a , State V. (1 Specrs, 223) 2.38 Isham V Bennington Iron Co. (19 Vt. 230) 86, 126, 159 , United States v. (17 Wal. 496) 78 Iverson v. State (52 Ala. 170) 154 Ivyes, Rex v. (2 Show. 468) 250 Jackett V. Judd (18 How. Pr. 385) 178 Jackson v. Collins (16 B. Monr. 214) 92 6 , Com'th V. (5 Bush, 680) 37 ^^People V. (30 Cal. 427) 86 , Rex V. (Cowp. 297) 163, 169 u. State, (12 Ga. 1) 152 , State V. (36 Ohio State, 281) 82 V. Warren (32 111. 331) 120 Jacobs, State v. (2 Barring. Del. 548) 105 Jacquins v. Com'th (9 Cush. 279) 84 Jaeger, State v. (63 Misso. 403) 190 e James v. Atlantic Delaine Co. (11 Bankr. Reg. 390) 137 u. Com'th (12 S. & R. 220) 149 ;;. Dubois (1 Harrison, 285) 82, 95 o, 177 a, 178, 186 V. Elder (23 Missis. 134) 204 Jnmison o. Burton (43 Iowa, 282) 97 Jiines V. Buzzard (Hemp. 259) 186 Jarvis v. Jarvis (3 Edw. Ch. 462) 84 Jefferson v. Reitz (6 Smith, Pa. 44) 163 Jefferson City v. Courtmire, (9 Misso. 692) 28 Jetfersonville v. Weems (5 Ind. 547) 82 Jefferys v. Boosey (4 H. L. Cas. 815) 141 Jeferies v. State (39 Ala. 655) 163 Jenkins v. Clieyenne (1 Wy. Ter. 287) 24 332 ,154 156 100 40 34 216 88 105 141 189 d Section Jenning's Case (2 Lewin, 130J 246 Jennings v. Com'th (17 Pick. 80) 159, 163, 169 , Commonwealth «. (3 Grat. 624) 211 , State V. (27 Ark. 419) 18 Jersey City, State ;;. (8 Vroom, 348) 18, 22 25 26 , State V. (11 Vroom, 257) ' 159 Jersey City, &c. Railroad v. Jersey City, &c. Railroad (5 C. E. Green, 61) 38 Jessup, Com'th v. (13 Smith, Pa. 34) Jesson V. Wright (2 Bligh, 1) Jewell V. Weed (18 Minn. 272) ' Jilz, In re (3 Misso. Ap. 243) ! Jim, State v. (3 Murph. 3) Jobson V. Fennell (35 Cal. 711) Jocelyn v. Hawkins (1 Stra. 446) Jolm, Rex v. (7 Car. & P. 324) Johnes v. Jolmes, (3 Dow, 1) Jbhns, U. S. w. (1 Wash. C. C. 363) 214.224 Johnson's Case (1 Greenl. 230) 89 Johnson v. Hudson River Railroad (49 N. Y. 456) 70 I'. Johnson (26 Ind. 441) 83a V. Laserre (2 Ld. Raym 1459) 164 V. Merchandise (2 Paine, 601) 28 V. Pennington (3 Green, N. J. 188) 29 D.Philadelphia (10 Smith, Pa. 445) 20 V. Rich (9 Barb. 680) 36 V. State (3 Lea, 469) 31 , State V. (1 Brev. 155) 137 , State V. (1 Dev. 360) 231 V. U. S. (3 McLean, 89) 87, 126 Johnston's Estate (9 Casey, Pa. 511) 154 Johnston v. Bower (4 Hen. & M. 487) 164 V. Louisville (11 Bush, 527) 137 , Reg. V. (2 Moody, 254) 133 V. South Western Railroad Bank (3 Strob. Eq. 263) Johnstone v. Sutton (1 T. R. 511) Jolliffe V. Rice (6 C. B. 1) Jolly, Slate v. (7 Iowa, 15) Jones V. Allen (1 Head, 626) V. Axen (1 Ld. Raym. 119) V. Black (48 Ala. 540) V. Brown (2 Exch. 329) V. Collins (16 Wis. 594) , Com'th V. (2 Jones, Pa. 365) V. Davis (6 Neb. 33) V. Dexter (8 Fla. 276) V. Fireman's Fund Ins. Co. (2 Daly, 307) V. Green (Law Rep. 5 Eq 556) V. Harrison (6 Exch. 328; 3 Eng. L. & Eq. 579) V. Hutchinson (43 Ala. 721) V. Jones (18 Maine, 308) V. Planters' Bank (6 Humph. 619) V. Perry (10 Yerg. 59) 11 a, 87 a , Rex V. (2 East P. C. 641) 222 , Rex V. (1 Leach, 174) 167 115 137 96 a 255 198 42 a 36 a 76 120 111 36 6, 176 95 11 o 131 112 37 102 108 KBX INDEX TO THE CASES CITED. KVS Section Jones, Rex i'. (1 Leach, 366; 2 East P. C. 991) 212 V. Sanford (66 Maine, 585) 18, 19 V. Smart (1 T. K. 44) 146 V. State (1 Iowa, 3951 163 u. State (1 Kan. 273; 70,76 -, State V. (5 Ala. 066) 163, 167, 172 , State V. (3 Halst. 307) 144 , State H. (1 McMul. 236) 163 V. Thompson (12 BusU, 394) 36 a V. Underwood (18 How. Pr. 532) 178 , United States v. (3 Wash. C. 0. 209) 97, 163, 168, 204 V. Walker (2 Paine, 688) 14 Jordan, Ex parte (94 U. S. 248) 255 V. State ( 15 Ala. 746) 163, 177 V. State (38 Ga. 585) 179 V. Wimer (45 Iowa, 65) 83 a Jordt V. State (31 Texas, 571) 248 Jortin V. Southeastern Railway (3 Eq. Rep. 281 ; 1 Jur. N. s. 433 ; 31 Eng. L. & Eq. 320) 82, 192 Josefa Segunda, Tlie (5 Wheat. 338) 132 Josephine v. State (39 Missis. 613) Journey v. State (1 Misso. 428) Judd V. Fulton (10 Barb. 117) Judge, State v. (14 La. An. 486) Judge of Ninth Judicial District, States. (12 La. An. 777) Judges, Report of tlie (3 Binn. 595) 161 Judson V. Reardon (16 Minn. 431) JuUus V. Oxford (5 Ap. Cas. 214) 85 a 137 107 163 159, , 163 20 112 Kaine, In re (10 N. Y. Leg. Obs. 257) 14 Kane v. Cora'th (8 Norris, Pa. 522) 108 a V. Footh (70 III. .587) • 112 «. People (8 Wend. 203) 167 Kansas City v. Clark (68 Misso. 588) 177 Kansas Pacific Railway v. Wyand- otte (16 Kan. 587) 64 Kavanaugh v. State (41 Ala. 399) 216 Kean v. Rice a2 S. & R. 203) 35 5 Kearney, State v. (1 Hawks, 53) 243, 244 Kearns v. Cordwainers (6 C. B. N s. 388) 49 Keene v. State (3 Chand. 109) 185 Keeran v. Griffith (34 Cal. 580) 82 Keesee v. State (1 Texas Ap. 298) 248 Keiser !). Yandes (42 Ind. 30;^) 141 Keller v. Boatman (41 Ind. 277) 141 (•. State (11 Md. 525) 36 a V. State (12 Md. 322) 177 Kelley, State v. (5 Vroora, 75) 113 a, 112 6 Kellor'k's Case (Law Rep. 3 Ch. Ap. 769) 75 Kellogg V. Decatur (38 Iowa, 524) 103 a V. Oshkosh (14 Wis. 623) 147 Kelly V. Morse (3 Neb. 224) 112, 141 Kelsey w. Kendall (48 Vt. 24) ' 85 6 Keniston, Commonwealth w. (5 Pick. 420) 193, 212, 218 Section Kennebec and Portland Railroad v. Kendall (31 Maine, 470) 22 Kennedy v. Kennedy (2 Ala. 571) 97 V. Palmer (6 Gray, 316) 29 V. Sowden (1 McMul. 323) 22 Kennett's Petition (4 Fost. N. H. 139) 85 Kent, Commonwealth v. (6 Met. 2Sl) 211 , Reg. V. (2 Q. B. 686) 95 a V. State (8 Blackf. 163) 194, 222 , State f. (65 N. C. 311) 184, 185 Kentucky v. Ohio (24 How. U. S. 66) 926,104 a Keokuk v. Dressel (47 Iowa, 597) 26 Kerbey v. Siggers (2 Dowl. P. C. 659) 164 Kerlinger v. Barnes (14 Minn. 526) 154 Kernione). Hills (1 La. An. 419) 104 Kerrigan v. Force (9 Hun, 185) 42 6 u. Force (68 N, Y. 381) 36a., 42 b, 91 Key V. Jones (52 Ala. 238) 36 a Keyport, &c. Steamboat Co. v. Farm- ers' Trans. Co. (3 C. E. Green, 13) 72, 75, 76 Kilby Bank, Petitioner (23 Pick. 93) 70 Kilgore v. Magee (4 Norris, Pa. 401) 37,425 Kilkelly v. State (43 Wis. 604) 97 Kilpatrick v. Byrne (25 Missis. 571) 146 Kimball, Commonwealth r. (21 Pick. 373) 163, 168, 177, 180 Com'th V. (24 Pick. 366) 238 V. Lamson (2 Vt. 138) 105 Kimbray v. Draper (Law Rep. 3 Q. B. 160) Kimm v. Osgood (19 Misso. 60) 29, King V. Burrell (12 A. & E. 460) , Com'th V. (13 Met. 115) , Com'th V. (1 Whart. 448) , People V (28 Cal. 265) . u. State (2 Ind. 523) 41, 163, , State V. (12 La. An. 593) , State V. (44 Misso. 283) , State V. (69 N. C. 419) Kinne, State v. (41 N. H. 238) Kinney v. Mallory (3 Ala. 626) Kinsey v. Slierman (46 Iowa, 463) Kinsman, People v. (51 Cal. 92) Kirby v. Siggers (2 Dowl. P. C. 813) , United States v. (7 Wal. 482) Kirk !.■. Nowill (1 T. R. 118) Kitchen v. Tyson (3 Murph. 314) Kitty, State v. (12 La. An. 805) Knapp, Com'th v. (9 Pick. 496) 142, , People V. (42 Mich. 267) Kneeland, Com'th v. (20 Pick. 206) Knonp V. Piqua Bank (1 Ohio State, 603) 175,177 a Knowles v. State (3 Day, 103) 163, 171 Knox, Commonwealth v. (6 Mass. 76) 131 Koch V. Bridges (45 Missis. 247) 254 Koltenbrock v. Cracraft (36 Ohio State, 584) 31 a Konntze v. Omaha (5 Dil. 443) 38 Kunkle v. Franklin (13 Minn. 127) 85 333 84 111 80 163 205 82 167 38, 76, 152 70, 82 166 103, 195 a 160 1.30 84 164 93 22 242 160 155 137 204 I.AW INDEX TO THE CASES CITED. LIE Kyle V. Malin (8 Ind. 34) V. State (10 Ala. 236) ■ Section i 19 220 11a Lacey v. Waples (28 La. An. 158) Lackawana Iron, &o. Co. v. Little Wolf (38 Wis. 152) 255 Lackey, State v. (2 Ind. 285) 177 Lacon v. Hooper (6 T. R. 224) 105 La Crosse, State b. (11 Wis. 50) 34 Lacy !). Moore (6 Coldw. 348) 82 Lafayette v. Jenners (10 Ind. 70) 91 Lafayette, &c. Railroad v. Gelger (34 Ind. 185) 92 Laidler v. Young (2 Har. & J. 69) 48 Lair v. Killmer (1 Dutcher, 522) ly3 Lake v. Aberdeen (57 Missis, 260) 21 V. Decatur (91 111. 596) 22 , People V. (33 Gal. 487) 255 Lakeman u. Moore (32 N. H. 410) 179 Lambert v. Taylor (4 B. & C. 138) 103 Lambertson v. Hogan (2 Barr, 22) 83 a Lamraer, In re (7 Bis. 269 ; 14 Bankr. Reg. 460) 242 a Lammert v. Lidwell (62 Misso. 188) 18, 36 Lamond v. Eiffe (8 Q. B. 910) 80 Lancaster, State v. (6 Neb. 474) 16, 36 a Lane v. Cotton (12 Mod. 472) 133 V. Harris (16 Ga. 217) 37 V. Kennedy (13 Oliio State, 42) 103 « W.Nelson (29 Smith, Pa. 407) 85 V. Schomp (5 C. E. Green, 82) 93 , State V. (8 Ire. 256) 93, 231 Laney, State v. (4 Ricli. 193) 244 Lang V. Cox (40 Ind. 142) 141 V. Gale (1 M. & S. Ill) 105 V. Phillips {21 Ala. 311) 29 V. Scott. (1 Blackf. 405) 119, 137, 249, 250 a V. Spicer (1 M. & W. 129) 159 Langabier v. Fairbury, &c. Railroad (64 111. 243) 110c Langford v. King (1 Mon. Ter. 38) 177 a . Reg. V. (Car. & M. 602) 132 V. V. S. (12 Ct. of CI. 388) 14 Languille v. State (4 Texas Ap. 312) 85 a Lanthrop v. Com'th (6 Grat. 671) 163 Lapeyre v. U. S. (17 Wal. 191) 28, 29 Larrison v. Peoria, &c. Railroad (77 111. 11) 37 La Salle v. Blanchard (I Bradw. 635) 84 La Selle v. Whitfield (12 La. An. 81) 97 Lasere v. Rochereau ( 17 Wal. 437) 141 Lastro V. State (3 Texas Ap. 363) 57 Lathrop v. Brown (1 Woods, 474) 83 a V. Mills (IS Cal. 513) 34 Latless v. Holmes (4 T. R. 660) 28, 29 Laiide v. Chicago, &o. Railroad (33 Wis. 640) 152 a, 181 Lauve, Succession of (6 La. An. 529) 104 a Lavender, Rex v. (2 East P. C. 566) 220 V. State (60 Ala 60) 247 Law V. Hodson (11 East, 300) 1.38a Lawrence v. Allen (7 How. U. S. 785) 99 334 Section Lawrence, People v. (41 N. Y. 137) 36 a V. State (7 Texas Ap. 192) 108 a Layman, State v. (8 Blackf. 330) 94, 244 Layton v. New Orleans (12 La. An. 515) 18 Lea V. Burara (2 Norris, Pa. 237) 34 Leach v. Elwood (3 Bradw. 453) 20, 21 League v. De Young (11 How. U. S. 186) 92 a Lean, State v. (9 Wis. 279) 255 Leard v. Leard (30 Ind. 171) 151 Leavenworth v. Miller (7 Kan. 479) 92, 98 Leavenworth, &c. Railroad v. United States (92 U. S. 783) 14 Ledbitter, Rex v. (1 Moody, 76) 237 Lee V. Bude, &c. Railway (Law Rep. 6 C. P. 576) 40 V. Clarke (2 East, 333) 167 V. Cook (1 Wy. Ter. 413) 84 V. Forman (3 Met. Ky. 114) 98 V. Lincoln (1 Story, 610) 99 V. Shankle (6 Jones, N. C. 313) 113 V. State (49 Ala. 43) 255 , State V. (37 Iowa, 402) 37 V. Wallis (1 Keny. 292) 34 Lee & Co.'s Bank, In re (21 N. Y. 9) 92 a Leech, Com'th v. (12 Harris, Pa. 55) 180 Lees V. Summersgill (17 Ves. 508) 48 Leese v. Clark (20 Cal. 887) 76 Le Feuvre v. Miller (8 Ellis & B. 321) 255 Le Forest v. Tolman (117 Mass. 109) 193 Leftwich, Com'th v. (5 Rand. 657) 177 Legg V. Annapolis (42 Md. 203) 37 Leggett V. Hunter (19 N. Y. 445) 85 a Lehigh Valley Railroad v. McFarlau (4 Stew. Ch. 706) 11a Lehman v. Robinson (59 Ala. 219) 95 a, 98 Leib V. Wilson (51 Ind. 550) 85 a Leicester, Rex v. (7 B. & C. 6) 255 Leigh V. Kent (3 T. R. 362) 104, 149 V. Westervelt (2 Duer, 618) 112 Leighton v. Walker (9 N. H. 59) 159, 163, 185 Leonard v. Bos worth (4 Conn. 421) 194, 216, 220, 225 V. Wiseman (31 Md. 201) 40 V. Wolfram (41 Conn. 481) 163 Leoni v. Taylor (20 Mich. 148) 82 Le Roy e. Chabolla (2 Abb. U. S. 448) 82 31a, 108 25 111 Lester v. Garland (15 Ves. 248) 29, Lesterjelle v. Columbus (30 Ga. S Levert v. Read (54 Ala. 629) Levi V. Sanderson (Law Rep. 4 Q. 830) 186 Levy V. State (6 Ind. 281) 24, 42 b Lewis u. Foster (IN. H. 61) 17" V. State (21 Ark. 209) 24 V. Stout (22 Wis. 234) 152 V. Welch (14 N. H. 294) 254 Lichfield u. Simpson 8 Q. B. 65) 251 Lichtenstein v. State (5 Ind. 162) 164 Liedtke, State v. (9 Neb. 462) 37 , State V (9 Neb. 468) 41 LOT INDEX TO THE CASES CITED. MCC Section Liedtke, State v. (9 Neb. 490) 366 Lillard v. MoGee (4 Bibb, 165) 163 Limestone v. Eather (48 Ala. 433) 255 Linara v. Johnson (2 Bailey, 137) 163 Lincoln, State v. (7 Neb. 377) 26 Lindsay v. Lindsay (47 Ind. 283) 186 , State V. (34 Avk. 872) 17a, 21 Lindsey v. Miller (6 Pet. 666) 103, 142 Lindsley v. Williams (5 C. E. Green 93) Link V. Beuner (3 Caines, 325) Linn, United States v. (Crabbe, 307] Linney v. State (6 Texas, 1) Lion, The (Law Rep. 2 P. C. 525) Lisbon v. Clark (18 N. H. 234) Liscomb, People v. (60 N. Y. 559) Lisles, State v. (58 Misso. 359) Little V. Poole (9 B. & G. 192) Little Eoek, &c. Railway, State v (31 Ark. 701) Liverpool Borough Bank v. Turner (2 De G., F. & J. 502) Liverpool Library v. Liverpool (5 H. &N. 526) Livingston v. Indianapolis Insurance Co. (6 Blackf. 133) V. Moore (7 Pet. 469) People V. (68 N. Y. 114) , People V. (6 Wend. 526) Lock V. Miller (3 Stew. & P. 13) Locke's Appeal (12 Sniitli, Pa. 491) Lockett V. Hill (1 Woods, 552) , Rex V. (7 Car. & P. 300) Lockwood V. State (1 Intl. 161) Loewenthal, People v. (93 III. 191) Loftin, State v. (2 Dev. & Bat. 31) V. Watson (32 Ark. 414) LogSin, Coni'th v. { 12 Gray, 136; > V. Courtown (13 Beav. 22) V. Pyne (43 Iowa, 524) V. Walton (12 Ind. 639) Logwood V. Huntsville (Minor, 23) V. Planters' and Merchants' Bank (Minor, 23) Loker v. Brookline (13 Pick. 343) London v. Wood (12 Mod. 669) London Dock, Rex v. (5 A. & E. 163) London, &o. Railway v. Limehouse (3 Kay & J. 123) , &o. Railway v. Wandsworth Board of Works (Law Rep. 8 C. P. 185) 126 Long V. Gulp (14 Kan. 412) 64, 67 V. State (4 Texas Ap. 81) 255 State V. (78 N. C. 571) 177, 181 Longlois V. Longlois (48 Ind. 60) 152a, 159 Loom, Rex v. (1 Moody, 160) 247 Loon V. Lyon (4 Daly, 149) 104a Lopez V. State (42 Texas, 298) 35a Lore V. State, (4 Ala. 173) _ 175, 176 Loring, Commonwealth v. (8 Pick, 370) 82, 193, 200, 212, 244 V. Halhng (15 Johns. 119) 105 Lothrop V. Stedman (42 Conn. 583) 36 79 211 255 204 98a 17a 76 86 138a 31 255a 1126 82 12 255 181 155 86 29 88 137 37 210 18 84a 75 20 83a 254 193 154 40 77 1126 Section Loughridge v. State (6 Misso. 594) 144 Louisburg v. Harris (7 Jones, N. C. 281) 21 Louisville V. Batrd, (15 B. Monr. 246) 38 V. Commonwealth (9 Dana, 70) 128 V. Roupe (6 B. Monr. 591) 22, 254 Louisville and Nashville Railroad v. Davidson (1 Sneed, 637) . 86 Louisville, &c. Railroad v. Com'th (1 Bush, 250) 212 Louisiana State Lottery Co. u. Eich- oux (3 La. An. 743) 37 Loukes V. Holbeach (4 Bing. 419) 242a Love V. Hinckley (1 Abb. Adm. 436) 104 Lovell, State v. (23 Iowa, 304) 119 Lovett, State u. (3 Vt. 110) 220 Lovingston v. Wider (53 111. 302) 18 Low V. Dunham (61 Maine, 566) 112 V. Routledge (Law Rep. 1 Ch. Ap. 42 ; Law Rep. 3 H. L. 100) 141 Lower Chatham, In re (6 Vroom, 497) 40 Lowndes v. Hunter (49 Ala. 507) 36a Loxdale, Rex v. (1 Bur. 445) 82, 255, 256 Loyd, State v. (2 Ind. 659) 177 Lucas V. Tippecanoe (44 Ind. 524) 90 Luffe, Rex v. (8 East, 193) 190o Luke V. Calhoun (-56 Ala. 415) 163, 179 V. State (5 Fla. 185) 156, 163 Lunning v. State (9 Ind. 309) 177 Lunsford v. State (1 Texas Ap. 448) 248 Lyde v. Barnard (1 M. & W. 101) 82 Lyn V. Wyn (0. Bridg. 122) 112a Lynde, United States v. (11 Wal. 682) 14 Lyon, Rex v. (Russ & Ry. 255) 255 Lytle, People v. (1 Idaho, 161) 152 , United States v. (5 McLean, 9) 104 Mabry v. Baxter (11 Heisk. 682) 84 McAfee v. Southern Railroad (36 Missis. 669) 86 McAlister v. Clark (33 Conn. 91) 21 McArdle, United States v. (2 Saw. 367) 46 Mc Arthur v. Franklin (16 Ohio State, 193) 31 McBee v. Hoke (2 Speers, 138) 255 McBride, State v. (4 Misso. 303) 37 McCain, People v. (51 Cal. 360) 84 McCann, People v. (16 N. Y. 58) 163 , Reg. V. (^Law Rep. 3 Q. B. 141) 103 v. State (13Sm. &M. 471) 166 McCarn, State v. (12 Humph. 494) 144 McCartee v. Orphan Asylum Societv (9 Cow. 437) 97, 154, 163 McCarthy, Ex parte (53 Cal. 412) 168 McCarthy v. Chicago, &c. Railroad (18 Kan. 46) 141 MoCloskey, Com'th v. (2 Rawle, 369) 164 McConnell, Com'th v. (11 Gray, 204) 143 McConvill V. Jersey City (10 Vroom, 38) 41 McCool «. Smith (1 Black, 459) 97, 154 McCormack v. Terre Haute, &c. Rail- road (9 Ind. 283) 249 335 MCN INDEX TO THE CASES CITED. MAN" Seotion McCoy, State v. (2 Speers, 711) 243 MoCracken, State v. (42 Texas, 383) 36a McCready v. Sexton (29 Iowa, 356) 34 McCrearv v. State (27 Ark. 425) 177a McCuen v. State (19 Ark. 630) 426, 179 McCuUey, Reg. v. (2 Moody, 34) 247 McCulloch V. State (11 Ind. 424) 29, 34, 37 McCully's Case (2 Lewin, 272) 247 McDa'de v. People (29 Mich. 50) 245 Maodaniel, Rex v. (2 East P. C. 644) 233 MoDermut v. Lorillard (1 Edw. Ch. 273) 82 McDonough v. Campbell (42 III. 490) 154 McDougald v. Dougherty ( 14 Ga. 674) 82 Macdougall v. Piiterson ( 11 C. B. 755) 112 Mace V. Caramel (Lofft, 782) 48, 61 , State V. (5 Md. 337) 92, 96, 242 McElhaney v. State, (24 Ala. 71) 244 McElliiney v. Commonwealth (10 Harris, Pa. 365) 250 McFadden, State v. (23 Minn. 40) 18 McEarland v. Bank of The State (4 Pike, 410) 126, 166 McGarry, State v. [21 Wia. 496) 246 McGary v. People (45 N. Y. 153) 208 McGavisk ,j. State (5 Vroom, 509) 112a, 1126 McGeorge, Com'th v. (9 B. Monr. 3) 200 MoGowan v. State (9 Yerg. 184) 55, 135 McGowen v. Deyo (8 Barb. 340) 178 McGrath v. State (46 Md. 631) 36a McGregor v. State (4 Texas Ap. 599) 101 McGutiie v. State (17 Ga. 497) 255 McGuirk, Com'th v. (28 Smith, Pa. 298) 163 Melntyre v. Ingraham (35 Missis. 25) 70, 93 McKay, Rex v. (Russ. & Ry. 71) 205 MeKeay, Rex i;. (1 Moody, 130) 205 McKee ;;. McKee (17 Md. 352) 97 V. People (32 N. Y. 239) 185 McKeehan v. Com'th (3 Barr, 151) 103 McKeen v. Delancy (5 Cranch, 22) 104 McKenney, Com'th v. (14 Gray, 1) 178,185 McKenzie, Rex v. (Russ. & Ry. 429) 183, 184 V. State (6 Eng. 594) 97 Mackerel, Rex v. (4 Car. & P. 448) 214 McKibben v. Lester (9 Ohio State, 627) 152 a McKinney v. Monongahela Nav. Co. (2 Harris, Pa. 05) 250 a McKinsey v. Anderson (4 Dana, 62) 104 McLain v. New York (3 Daly, 32) 42 6 , State V. (2 Brev. 443) 247, 248 McLaughlin v. Hoover (1 Oregon, 31) 86 McLendon, State v. (1 Stew. 195) 111 McLeran, State v. (1 Aikens, 311) 163 McManning v. Farrar (4li Misso. 376) 85 McMaster v. Lomax (2 Myl. & K. 32) 77 McMillen v. Lee (6 Iowa, 391) 92 MoMullen «. Guest (6 Texas, 275) 180, 181 V. Hodge (5 Texas, 34) 90 McNab V. Heald (41 111. 326) 164 336 Section McNamara v. McNamara (2 Hilton, 547) 160 V. Minnesota Cent. Railway (12 Minn. 388) 84 Macnawhoc Plantation v. Thompson (36 Maine, 365) 177 a McNeill, Reg. u. (1 Crawf. & Dix C. C. 80) 199 Macomber, Com'th v. (3 Mass. 254) 139, 142, 194, 218 McOmber, State ;;. (6 Vt. 215) 194, 216 Macon v. State (4 Humph. 421) 238 Macon County Court, State v. (41 Misso. 453) 97, 126, 152 McQuilkin v. Stoddard (8 Blackf. 581) 154 Macrae v. Hyndman (6 CI. & F. 212) 242 a McRae v. Wessell (6 Ire. 153) 126 McRea f. Americus (59 Ga. 168) 24 McRerdy v. Com'th (27 Grat. 982) 163 McReynolds v. Smallhouse (8 Bush, 447) McRoberts v. Winant (15 Abb. Pr. N. s. 210) McVeigle v. U. S. (11 Wal. 259) McVey v. McVey (51 Misso. 406) Mc William v. Adams (1 Macq. Ap. Cas. 120) 75, 86 Macy V. Raymond (9 Pick. 285) 101, 242 Maddox, State v. (1 Lea, 671) 255 Madison, &c. Plankroad v. Reynolds (3 Wis. 287) Madison, &c. Railroad v. Whiteneck (8 Ind. 217) Madrazo v. Willes (3 B & Aid. 353) Magdalen College Case (11 Co. 666) 50 255 141 126 151 36 n 141 82, 103 Magellan Pirates, The (18 Jur. 13; 25 Eng. L. & Eq. 595) . 98 Mager, Succession of (12 Rob. La. 584) 13, 14 Magill, U. S. V. (1 Wash. C. C. 463) 96, 242 Magruder v. Carroll (4 Md. 335) - 82 V. State (40 Ala. 347) 163 Mahan, State v. (2 Ala. 340) 231 Mahaney, People v. ( 13 Mich. 481 ) 34, 35 a, 40 Maher v. State (53 Ga. 448) 23, 24 Mairs, Slate v. (Coxe, 453) 212 Maize v. State (4 Ind. 342) 34, 36 iMaloney, Com'th v. (112 Mass. 283) 185 , State «. (R. M. Charl. 84) 163,171 Mancliester v. Herrington (6 Seld. 164) 163 Mandere v. Bonsignore (28 La. An. 415) 42 d Maner, State v. (2 Hill, S. C. 453) 138 Manis v. State (:! Heisk. 315) 82 Manistee, People v. (26 Mich. 422) 24 Manlove i: White (8 Cal. 376) 186 Manly v. Raleigh (4 Jones Eq. 370) 18 V. State (7 Md. 135) , 92 Mann v. McAtee (37 Cal. 11) 84 Manning, Rex v. (2 Comjns, 616) 135 Mansell v. Reg, (8 Ellis & B. 64) 97 MAY INDEX TO THE CASES CITED. MIL Section Manuel v. Manuel (13 Ohio State, 458) 70 Maple Lake v. Wright (12 Minn. 403) 163 Marbury v. Madison (1 Cranch, 137) 33 March v. Com'th (12 B. Monr. 25) 22 Marchant v. Langworthy (6 Hill, N. Y. 646) 255 Mardre v. Felton (Phillips, N. C. 279) 82 Marianna Flora, The (11 Wheat. 1) 132 Marietta, &c. Railroad v. Stephenson (24 Ohio State, 48) 190 d, 231 Markle v. Akron (14 Ohio, 586) 22 Marks, Rex v. (3 East, 157) 48, 51 Marlborough, People v. (51 N. Y. 276) 87 Marner, Reg. v. (Car. & M. 628) 231 Marqueze v. Caldwell (48 Missis. 23) 97 Marriot, Rex v. (4 Mod. 144) 250, 250 c Marriott, Rex v. (11 Mod. 140, note) 250 Marryat v. Wilson (1 B. & P. 430) 14 Marsh, Rex v. (4 D. & R. 260) 132 Marshall, Commonwealth v. (11 Pick. 350) 177, 180, 184, 186 V. Martin (Law Rep. 5 Q. B. 239) 153 V. NichoUs ( 18 Q. B. 882) 250 a , State V. (13 Texas, 55) 246 V. Vultee (1 E. D. Smith, 294) 120 Marshalsea, The Case of (10 Co. 63 6) 138 Marson u. Lund (13 Q. B. 664) 112 Maryland, Com'tli v. (32 Md. 501) 195 Martin v. Com'th (1 Mass. 347) 131 , Com'th v. (17 Mass. 359) 193, 212 V. Dix (52 Missis. 53) 18 V. Hemming (24 Law J. Exch. 3) 77 V. Hunter (1 Wheat. 304) 14 V. State (24 Texas, 61) 185, 212 , State V. (3 Heisk. 487) 163 , United States v. (94 U. S. 400) 255 Martindale v. Martindale (10 Ind. 566) 181 , State V. (1 Bailey, 163) 131 Mason v. Armitage (13 Ves. 25) 48, 49 V. Pearson (9 How. U. S. 248) 97, 112 V. Finch (2 Seam. 223) 82 V. Piggott (11 111. 85) 164 «. Waite (1 Pick. 432) 159, 161, 163 Mather, People w. (4 Wend, 229) 141, 204 Mathews v. Shores (24 111. 27) , State V. (14 Misso. 133) Matthews, Ex parte (52 Ala. 51) V. Alexandria (68 Misso. ] 15) V. Caldweld (2 Disney, 279) -. — . Com'th V. (122 Mass. 60) , Reg. V. (UCoxC. C. 5) , Rex V. (2 East P. C. 642) V. Skinker (62 Misso. 329) l: Zane (7 Wheat. 164) Mattock, U. S. V. (2 Saw. 148) Maxwell v. Collins (8 Ind. 38) V. Jonesboro (11 Heisk. 257) V. Rives (11 Nev. 213) V. State (40 Md. 273) May V. Breed (7 Cush. 15) , People V. (27 Barb. 238) V. State (35 Texas, 650) Mayers v. State (2 Eng. 68) 22 35 179 97 20 231 222 119 28 212 120 20 193 70 175 212 163 177 Section Mayers v. State (3 Eng. 222) 225 Mayo V James (12 Grat. 17) 24 Mayor v. Davis (6 Watts & S. 269) 195, 204 Mayor and Aldermen v. Maberry (6 Humph. 368) 22 Mays V. Williams (27 Ala. 267) 177 a Maze, State v. (6 Humph. 17) 250 Mead, Rex v. (4 Car. & P. 535) 214 Meade v. Deputy Marshal (1 Brock. 324) 82, 141 Medford v. Learned (16 Mass. 215) 84 Medical College v. Muldon (46 Ala. 603) 11 a Megargell v. Hazelton Coal Co. (8 Watts &S. 342) 250 rf MelUsh, Rexr. (Ross. &Ry. 80) 220 Melody v. Reab (4 Mass. 471) 155, 220 Memphis v. Laski (9 Heisk. 511) 212 V. United States (97 U. S. 293) 177 o Mence, Reg. v. (Car. & M. 234) 204 Mendon v. Worcester (10 Pick. 235) 82 Meng V. Winkleman (43 Wis. 41) 110 b, 110 c Menges v, Frick (23 Smith, Pa. 137) 110 Mercer v. Com'th (2 Va. Cas. 144) 231 ■ V. State (17 Ga. 146) 84 Merchants' Bank v. Cook (4 Pick. 405) 96, 242 Meredith, Reg. v. (8 Car. & P. 589) 138 Merriam v. Langdon (10 Conn. 460) 210 Merrill v. Gorham (6 Cal. 41) 86 v. State (46 Ala. 82) 255 Merry, State v. (3 Misso. 278) 163 Mersey Docks v. Cameron (11 H. L. Cas. 443) 103 Merwin v. Ballard (66 N. C. 398) 84 Meshmeier v. State (U Ind. 482) 34, 30 Messenger, Com'th v. (4 Mass. 462) 87, 144 Messinger, Com'th v. (1 Binn. 273) 213 Metropolitan Asylum Dist. o. Hill (6 Ap. Cas. 193) 82 Metropolitan Board of Health v. Sehmades (3 Daly, 282 ; 10 Abb. Pr. s. a. 205) 29 Metts V. Bright (4 Dev. & Bat. 173) 29 Metzger, Ex parte (5 N. Y. Leg. Obs. 83) 14 , In re (1 Barb. 248) 14 , In re (5 How. U. S. 178) 14 Meux I). Jacobs (Law Rep. 7 H. L. 481) 65 Meyer, State v. (1 Speers, 305) 250 Miami v. Blake (21 Ind. 32) 178 a Michell V. Brown (1 Ellis & E. 267) 163 Michie v. Michie (17 Grat. 109) 110 c Middleton's Case (J. Kel. 27) 229 Middleton v. Crofts (2 Atk. 650) 160 V. New Jersey West Line Rail- road (11 C. E. Green, 269) 98, 160, 181 Midhurst v. Waite (3 Bur. 1259) 88 Migotti V. ColviU (4 C. P. D 233) 110 o Millburn, State v. (9 Gill, 105) 142 Miles V. McDermott (31 Cal. 271 ) 110 c 337 MON INDEX- TO THE CASES CITED. MOE Section Miles V. State (40 Ala. 39) 36 a, 184 State V. (2 Nott & McC. 1) 243, 244 Milford V. Orono (50 Maine, 529) 256 Millard, U. S. K. (13 Blatch. 534) 244 Miller's Case (3 Wils. 420; 1 W. Bl. 451) 177 Miller v. Cora'th (27 Grat. 110) 212 , Com'th V. (5 Dana, 320) 104a V. Pinkie (1 Parker C. C. 374) 265 V. Graham (17 Ohio State, 1) 84 a V. Knox (4 Bing. N. C. 574) 137 V. Marigny (10 La. An. 338) 104 a V. Miller (16 Mass. 59) 83 a V. Moore (1 E. D. Smith, 739) 83 a V. Post (1 Allen, 434) 254 V. Salomons (7 Exoh. 475) 1906 V. State (5 How. Missis. 250) 244 V. State (3 Ohio State, 475) 87, 255 , State V. (58 Ind. 399) 163, 181, 185 , State V. (45 Misso. 495) 36 a Mills V. Charleton (29 Wis. 400) 36 a, 85 a , State V. (5 Vroom, 177) 112 6, 195 V. Wilkins (6 Mod. 62) 45, 47 Milne v. Huber (3 McLean, 212) 186 Milner y. Pensacola (2 Woods, 6321 18, 177 a 32 61 1126 114 ) 93, 112 154, 163 82 112, 160 110 198 141 194, 199 254 Mims V. Huggins (1 Ala. 676) Milverton, Rex v. (5 A. & E. 841) Miner, People v. (47 III. 33) Miner v. Leman (20 Beav. 269) Minor v. Mechanics' Bank (1 Pet. < Miskimmons, State u. (2 Ind. 440) Mister, State v. (5 Md. 11) Mitchell V. Duncan (7 Fla. 13) S u. Poster (12 A. & E. 472) V. Mitchell (1 Gill, 66) V. Mitcliell (67 N. C. 307) , Rex V. (2 East P. C. 936) V. Smith (1 Binn. 110) V. State (19 Ind. 381) 157 , State w. (5 Ire. 350) 243 V. Tibbetts (17 Pick. 298) 141 V. United States (9 Pet. 711) 14 Mobile, State v. (5 Port. 279) 19 V. Stein (54 Ala. 23) 82 V. Yuille (3 Ala. 137) 19, 22, 25 Mobile and Ohio Railroad v. State (29 Ala. 573) 22, 34, 126, 156 Mobile, &c. Railroad c. Malone (46 Ala. 391) 86, 98, 156 Mooers v. Bunker (9 Post. N. H. 420) 98 Moffett, State v. (1 Greene, Iowa, 247) 163, 169 Molyneux, People v. (40 N. Y. 113) 46 Monck V. Hilton (2 Ex. D. 268) 143, 245, 246 Mongeon v. People (55 N. Y. 613) 157 Monroe v. State (3 Texas Ap. 341) 163 V. State (8 Texas Ap. 348) 11 a, 36 Montault y. U. S. (12How. U. S. 47) 32 Montgomery, People v. (67 N. Y. 109) 152 a 338 Section Montgomery v. State (2 Texas Ap. 618) Montrose Peerage (1 Macq. Ap. Cas. 401) Moody V. Nelson (60111. 229) V. State (48 Ala. 116) V. Stephenson (1 Minn. 401) Moon V. Durden (2 Exch. 2) Mooney v. State (8 Ala. 328) Moor, Rex v. (2 Mod. 128) Moore, Ex parte (62 Ala. 471) V. Durden (12 Jur. 138) V. Hussey (Hob. 93) V. Jones (23 Vt. 739) ■ V. Mausert (49 N. Y. 332 ; Lans. 173) V. Moss (14 111. 106)_ V. Phillips (7 M. & W. 536) , Rex V. (2 Car. & P. 236 ; Moody, 122) , Rex V. (Jefferson, 9) V. Smith (5 Jur. n. b. 892) V. State (16 Ala. 411) V. State (40 Ala. 49) , State w. (19 Ala. 514) V. State (13 Sm. & M. 2-59) , State V. (13 Vroom, 208) V. Vance (1 Ohio, 1) Moran v. Miami (2 Black, 722) Mordecai, State v. (68 N. C. 207) Morford v. Unger (8 Iowa, 82) Morgan v. Monmouth Plank Road, (2 Dutcher, 99) V. Perry (51 N. H. 559) V. Thorne (7 M. & W. 400) Morin, United States v. (4 Bis. 93)- Morisse v. Royal British Bank (1 C. B. N. s. 67) Morlot V. Lawrence (1 Blatch. 177 75 119 37 79 82,84 244 168, 169 36 a 82 82 250 d ; 5 152 a 154 85 a ; 1 204 31 a, 107 103 163 184 160, 163 216 11a 154, 163 119 242 a 36 82 178 143 112 608) 155, 160, 163 Morrill v. State (38 Wis. 428) 78 Morris v. Delaware and Schuylkill Canal (4 Watts & S. 461) 160 1!. Mellen (6 B. & C. 446) 189 c , Rex«. (IB. &Ad. 441) 82 V. Rome (10 Ga. 532) 22 Morris Aqueduct v. Jones (7 Vroom, 206) 119, 137 Morris Canal and Banking Co. State «. (1 Green, N.J. 192) 190 Morris Canal and Banking Co. State !>. (2Zab. 537) 138 Morris Common Pleas, State v. (7 Vroom, 72) 36 Morrison v. Barksdale (Harper, 101) 40, 104, 154 , Com'th V. (2 A. K. Mar. 75) 95 a !'. Witham (1 Fairf. 421) 107 Morristown, State v. (4 Vroom, 57) 19 , State !'. (5 Vroom, 445) 25 Morrow, State v. (26 Misso. 131) 154 , U. S. V. (4 Wash. C. C. 733) 136 Morse, Com'th iv (2 Mass. 128) 223 State (6 Conn. 9) 100, 222 NEE INDEX TO THE CASES CITED. NIC Seotion Morton v. Comptroller-General [i S. C. 430) 36 a , State II. (27 Vt. 310) 164 u. Valentine (15 La. An. 150) 85 a Mosby V. St. Louis Mutual Ins. Co. (31Grat. 629) 162 a Moseley, State v. (14 Ala. 390) 163, 222, 246 , Moses V. Mobile (52 Ala. 198) 36 a ' , State V. (7 Blackf. 244) 167 Mosher v. Independent School Dis- trict (44 Iowa, 122) 18 Mott, Com'thf. (21 Pick. 492) 180, 185, 186 , Rex V. (2 East P. C. 1076; 1 Leach, 73 note.) 212 Moulton, U. S. V. (5 Mason, 537) 199 Mountford, Rex v. (7 Car. & P. 242 ; 1 Moody, 441) 216 Mowery v. Salisbury (82 N. C. 175) 20, 21 Moyle, Rex v. (2 East P. C. 1076) 212, 247 Mullen V. People (31 III. 444) 154, 185 MuUikin, State v. (8 Blackf. 260) 163 MuUinix v. State (43 Ind. 511) 177 Munshower v. Patton (10 S. & R. 3.34) 142 Murdock, State v. (9 Misso. 730) 139 V. Woodson (2 Dil. 188) 36 a Murfree v. Leeper (1 Tenn. 1) 164 Murray v. Gibson (15 How. U. S. 421) 82, 90 V. New York Central Railroad (3 Abb. Ap. 339) 93 Murphy, In re (3 Zab. 180) 82 , Reg. V. (Jebb, 315) 163 0. State (1 Ind. 366) 141 , State V. (6 Ala. 845) 2i4 Musgrove v. Vicksburg, &c. Railroad (50 Missis. 677) 85 a, 147, 177, 177 a Myers v. People (67 111. 503) 34 V. State (1 Conn. 502) 132, 196 V. State (8 Texas Ap. 321) 163, 179 , Stater. (10 Iowa, 448) 81 Mvnderse, U. S. v. (7 Blatch. 483) 195 Myrick v. Hasey (27 Maine, 9) 97 Nally, People v. (49 Cal. 478) 36 Nancy v. State (6 Ala. 483) 204 Nash V. Allen (4 Q. B. 784) 49 , Rex V. (Buss. & Ry. 386) 145 V. State (2 Greene, Iowa) 198 , United States «. (Bee, 266) 14 Nat, State v. (13 Ire. 154) 163 Nates, State v. (3 Hill, S. C. 200) 242 National Bank v. Southern Porcelain Manuf. Co. (55 Ga, 36) 33 V. Williams (46 Misso. 17 ) 1 10 f Naught V. Oneal (Breese, App. 29) 177 a Nave V. Nave (7 Ind. 122) 112 Nazro v. Merchants' Mutual Ins. Co. (14 Wis. 295) 46, 79 Neal V. Moultrie (12 Ga. 104) 192 Neath, &c. Railway, In re (Law Rep. 9 Ch. Ap. 263) 112 Needham v- Thresher (49 Cal, 393) 37 156 36 163 18 85 36 a 157 Section Neely v. State (4 Baxter, 174) 34 Neifing v. Pontiac (56 111. 172) 36 a Nelson, U. S.t>. (1 Abb. U. S. 135) 172 Neuendorfi v. Duryea (6 Daly, 276) 36a New Bedford Bridge, United States V. (1 Woodb. & M. 401) 137, 196 New Haven v. New Haven Water Co. (44 Conn. 105) New Haven, &o. Co., State v. (43 Conn. 351) New London Northern Railroad v. Boston, &c. Railroad (102 Mass. 386) New Orleans u. Cazelar (27 La. An. 156) V. Clark (95 U S. 644) V. Dunbar (28 La. An. 722) V. Hoyle (23 La. An. 740) V. Mechanics' and Traders' Bank (15 La. An. 107) 163 V. Poutz (14 La. An. 853) 104 a V. Salamander Co. (25 La. An. 650) 90 , United States v. (98 U. S. 381) 36 New Orleans, &c. Railroad v. Hemp- hill (35 Missis. 17) 93 New York v. Broadway, &c. Rail- road (12 Hun, 571) 146, 160 V. Furze (3 Hill, N. Y. 612) 112 , People V. (11 Abb. Pr. 114) 255 , People V. (16 N. Y. 424) 856 V. Walker (4 B. D. Smith, 258) 163 New York, &c. Railroad v. Van Horn (57 N. Y. 473) New York, &c. Railway, People v. (84 N. Y. 565) 102, 245 Newark, State v. (1 Dutcher, 399) 25 , State V. (3 Dutcher, 185) 85 , State V. (11 Vroom, 71, 550) 92 a , State w. (11 Vroom, 92) 84 , State y. (11 Vroom, 297) 42 b Newark-upon-Trent, Rex v. {3 B. & C. 59) 57, 67 Newbegin, State v. (25 Maine. 500) 231 Newbold v. Wright (4 Rawle, 195) 150 Newburgh, &c. Turnpike v. Miller (5Johns. Oh. 101) 112 Newcastle Corporation (12 CI. & F. 402) 212 Newcomb, Rex v. (4 T. R. 368) 255 a Newell, Com'th v. (7 Mass. 245) 142 Newkirk v. Chapron, (17 111. 344) 178 Newland v. Marsh (19 111. 376) 90 Newman v. State (6 Baxter, 164) 255 Newport Bridge, In re (2 Ellis & E. 377) 112 Newsom v. Greenwood (4 Oregon, 119) 179 Newton, State v. (59 Ind. 173) 34 Nicholas, State v. (2 Strob. 278) 132, 163 Nicholls V. Gee (30 Ark. 135) 177 n , State V. (30 La. An. 980) 72, 7(5 Nichols V. Bertram (3 Pick. 342) 126 , Commonwealth v. (10 Met. 259) 136 V. Halliday (27 Wis. 406) 81, 82 339 90 OLD INDEX TO THE CASES CITED. PAG Section Nichols V. Squire (5 Pick. 168) 159, 163, 168 , State V. (12 Rich. 672) 41 Nicholson w. Mobile, &c. Railroad (49 Ala. 205) 46 Nickless, Reg. v. (8 Car. & P. 757) 134, 145 Nightingale, Petitioner (11 Pick. 168) 20 Nigotti V. Colville (14 Cox C. C, 305) 110 a Nihols, United States v. (4 McLean, 23) 129 Nimmo v. Com'th (4 Hen. & Munf. 57) 142 Nix, Com'th V. (11 Leigh, 636) 2-25 Nixon «. Piffet (16La. An. 379) 154 , Rex V. (7 Car. & P. 442) 216 Noble V. Durell (3 T. R. 271) 150 V. State (1 Greene, Iowa, 325) 75, 87 Noel V. Ewing (9 Ind. 37) 85 a Non Obstante, Case of (12 Co. 18) 103 Norfolk 0. Chamberlaine (79 Grat. 534) 85 o , Rex w. (4 B. & Ad. 238) 112 Norris v. Crocker (13 How. U. S. 429) 158 , Rex V. (Russ. & Ry. 69) 246 V. Staps (Hob. 210 h) 18, 19, 20 V. State (25 Ohio State, 217) 212 North British Railway v. Todd (12 CI. & F. 722) 77 North Canal Street Road (10 Watts, 351) 177, 177 a Northrop v. Cooper (23 Kan. 432) 111 Northwestern Fertilizing Co. v. Hyde Park (3 Bis. 480) 212 Norton, Com'th v. (13 Allen, 550) 163 V. State (4 Misso. 461) 145 , State V. (3 Zab. S3) 155, 164 , United States v. (97 U. S. 164) 29 Norwegian Street (31 Smith, Pa. 349) 255 Norwich, Rex v. (1 B. & Ad. 310) 255 Nott, U. S. «. (1 McLean, 499) 220 Noyes, State v. (10 Post. N. H. 279) 18 Nusser v. Com'th (1 Casey, Pa. 126) 126 Oath before Justices (12 Co. 130) 137 O'Blennis v. State (12 Misso. 311) 145 O'Brian, Rex v. (7 Mod. 378) 163, 166, 167 V. State (12 Ind. 369) 119, 198 O'Brien, People v. (38 N. Y. 193) 36 a, 42 6 O'Byrnes v. State (51 Ala. 25) 75, 97 O'Conner, State «. (13 La. An. 486) 177 O'Connor, In re (48 Barb. 258) 137 V. Towns (1 Texas, 107) 110 O'Flaherty v. McDowell (6 H. L. Cas. 142) 154, 159 Ogden V. Strong (2 Paine, 584) 45, 46, 70, 82 O'Hanlon v. Myers (10 Rich. 128) 37, 149 Ohio, The o. Stunt (10 Ohio State, 582) Ohio and Mississippi Railroad, State V. (23 Ind. 362) Olcott V. Tioga Railroad (20 N. Y. 210) Oldakar v. Hunt (19 Beav. 485) 340 82 212 212 189 c Seotion Oldham, Reg. v. (14 Eng. L. & Eq. 568 ; 2 Den. C. C. 472) 204, 246 Oleson V. Green Bay, &c. Railway (36 Wis. 383) 147, 157 Oliver v. Forbes (17 Kan. 113) 14 Olney, U. S. v. (1 Abb. U. S. 275) 195 One Hundred Barrels Spirits, U. S. v. (1 Dil. 49; 2 Abb. U. S. 305) 195 One Hundred and Twelve Casks of Sugar, U. S. v. (8 Pet. 277) 99 O'Neal V. Robinson (45 Ala. 526) 98 O'Neil, People p. (51 Cal. 91) 84 O'Neill, State v. (24 Wis. 149) 36 Onondaga v. Briggs (3 Denio, 173) 178 Opinion of Justices (68 Maine, 589) 14 (7 Mass. 523) 101 (52 N. H. 622) 37 (3 Pick. 517) 104 (22 Pick. 571) 70,82 Ordway v. Central National Bank (47Md.217) 250 d Oregon Bulletin Printing, &c. Co., In re (14Bankr. Reg. 405; 8 Saw. 614) 98 Oregon Bulletin Publishing, &c. Co., In re (13 Bankr. Reg. 199) 212 Orleans v. Holmes (13 La. An. 502) 31 Orr V. Hodgson (4 Wheat. 453) 13, 14 V. Rhine (45 Texas, 345) 42 b Osawkee, State v. (14 Kan. 418) 33 Osburn v. Staley (5 W. Va. 85) 91 Oskins, State v. (28 Ind. 364) 31 Otsego, People v. (51 N. Y. 401) 112 Ottawa V. La Salle (12 HI. .339) 126, 163 Ottillie V. Waechter (33 Wis. 252) 255 Ottumwa V. Schaub (52 Iowa, 515) 22 Outlaw, State v. (72 N. C. 598) 242 Overall v. Bezeau (37 Mich. 506) 210 Overfield v. Sutton (1 Met. Ky. 621) 98 Overseers v. Smith (2 S. & R. 363) 104 Overton, Reg. v. (4 Q. B. 83) 163 Owen, Rex v. (2 East P. C. 645; 2 Leach, 572) 233 V. Slatter (26 Ala. 547) 111 Owens V. Rain (5 Hayw. 106) 40 Oxford, Reg. o. (4 Q. B. D. 2451 112 Pacific Railroad v. Cass (53 Misso. 17) 154 V. Maguire (20 Wal. 36) 11 a Package of Lace, U. S. v. (Gilpin, 338) 163 Package of Wood, U. S. v. (Gilpin, 349) 132 Packard v. Richardson (17 Mass. 122) 104 Packer v. Sunbury and Erie Rail- road (7 Harris, Pa. 211) 65 Paddle, Rex v. (Russ. & Ry. 484) 220 Paddock, State «. (24 Vt. 312) 210 Paddon v. Bartlett (3 A. & E. 884) 31 Padelford v. Savannah (14 Ga. 438) 35 a Page V. Allen (8 Smith, Pa. 338) 39 o, 92, 245 , Reg. V. (8 Car. & P. 122) 132 , Rex V. (12 Mod. 123) 255 PAU INDEX TO THE CASES CITED. PHA 19 164 36 Section Page V. State (6 Misso. 205) 210 , State V. ( 19 Misso. 213) 100 Paine v. Lake Erie, &c. Railroad (31 Ind. 283) 37 , Rex V. (1 East P. C. 5) 155, 160, 163 Painter v. Liverpool Gas Light Co. (3 A. & E. 433) 141 Palfrey v. Boston (101 Mass. 329) 102 Palmer v. Conly (4 Denio, 374) 178 I'. Cuyahoga (3 McLean, 226) 141 , Rex V. (1 Leach, 352) 82, 86 , Rex V. (2 Leach, 680; 2 East, P. C. 686) 216 w. Richards (6 Exch. 335) 112 , United States v. (3 Wheat. 610) 46 Pangborn w. Westlake (36 Iowa, 546) 97, 138 a Pankey v. People (1 Scam. 80) 159, 171 Panter v. Attorney-General (6 Bro. P. C. 553) 28 Parchman v. State {2 Texas Ap. 228) 255 Paris V. Hiram (12 Mass. 262) 106 Parish v. United States (8 Wal. 489} 92 6 Parker v. Baker (Clark, 223) V. Colcord(2N. H. 36) V. Commonwealth (6 Barr, 507) V. Commonwealth (4 Pa. Law Jour. Hep. 163) , Rex V. (2 East P. C. 592 ; 1 Leach, 320, note) 190 c, 194, 196, 204, 246 V. State (5 Texas Ap. 579) 35 a , State V. (26 Vt. 357) 36 Parkinson v. State (14 Md. 184) 31, 36 a, 70, 76, 82 Parramore v. Taylor (11 Grat. 220) 98 Parrott v. Stevens (37 Conn. 93) 163 Parsons v. Bedford (3 Pet. 433) 90 V. Brigham (34 Maine, 240) 163 V. Chamberlin (4 Wend. 512) 105 , State V. (11 Vroom, 1) 42 5, 92 a , State V. (11 Vroom, 123) 36 h Partington, Ex parte (6 Q. B. 649) 57 Parton v. Hervey (1 Gray, 119) 254 Pash, Commonwealth v. (9 Dana, 31) 204 Passey, Rexf. (7 Car. &P. 282) 88 Passmore, United States v. (4 Dall. 372) 177 Pate, State v. (Busbee, 244) 250 e Pateman, Rex v. (lluss. & Ry. 455) 216 Paterson v. Society (4 Zab. 385) , State V. (6 Vroom, 196) Pattee, Com'th v. (12 Cush. 501) Patterson, State v. (T. U. P. Charl 311) 218 V. Tatum (3 Saw. 164) 158 Pattison v. Bankes (Covvp. 540) 48, 49 Patton, State v. (4 Ire. 16) 1.38 Paty, Rex v. (2 East P. C. 1074; 1 Leach, 72; 2W. B). 721) Payne v. Baldwin (3 Sm. & M. 661) B. Conner (3 Bibb, 180) Paulina, The v. United States (7 Cranch, 52) 77 18,36 76 177 247 137 152 Section Peables v. Hannaford (18 Maine, 106) 31 a, 111 Peacock, People v. (98 III. 172) 84, 90, 194 ■ V. Reg. (4 C. B. N. s. 264) 110 c Pearce v. Atwood (13 Mass. 324) 86 V. Bank of Mobile (33 Ala. 693) 67, 126, 156 , Rex V. (2 Leach, 1046) 142 , U. S. V. (2 McLean, 14) 141, 216, 246 Pearcy, State v. (44 Misso. 159) 112 b Pearse v. Morrice (2 A. & E. 84) 255 a Pearson v. Lovejoy (53 Barb. 407) 120 Pease v. Whitney (5 Mass. 380) 126 Peck V. Burr (6 Seld. 294) 254 , People V. (11 Wend. 604) 255 V. San Antonio (51 Texas, 490) 36 a V. Weddell (17 Ohio State, 271) 36 Peel, Rex v. (Russ. & Ry. 407) 141 Peet V. Nalle (30 La. An. 949) 154, 163 Pegram, Commonwealth v. (1 Leigh, 669) 163, 171, 183 Pelham v. Messenger (16 La. An. 99) 119 Pemblew. Cliffiord(2McCord, 31) 115 Pendleton v. Barton (4 W. Va. 496) 119 Penniman, Petition of (11 R. L 333) 85 a Pennock v. Dialogue (2 Pet. 1) 97 Pennsylvania Hall, In re (5 Barr, 204) 180 Pennsylvania Railroad v. Riblet (16 Smith, Pa. 164) 91 Percavil, Com'th v. (4 Leigli, 686^ 246 Percheraan, U. S. v. (7 Pet. 51 ! 32 Pereira, Rex v. (2 A. & E. 375) 80 Perez v. State [8 Texas Ap. 610) 184, 185 Perine v. Van Note (1 Southard, 146) 163, 168 Perkins v. Tho^nburgh (10 Cal. 189) 249 Perrin, In re (2 Drury & Warren, 147 ; 1 Con. & L. 567) 128 Perry v. Com'th (3 Grat. 632) 83 a, 180 V. Jefferson (94 111. 214) 189 d V. New Orleans, &c. Railroad, (55 Ala. 413) 42 d V. People (14 111. 496) 163 V. Perry (2 Barb. Ch. 311) 160 V. Perry (2 Paige, 501) 160 V. Selma, &c. Railroad (58 Ala. 546) 37 , State V. (5 Ohio State, 497) 34 , State V. (44 Texas, 100) 163 V. Wilson (7 Mass. 393) 113 Perrysburg, State v. (14 Ohio State, 472) 31 a, 126 Person, State v. (3 Vroom, 134) 18 Persons v. State (3 Texas Ap. 240) 248 Peter, State v. (8 Jones, N. C. 19) 212 Peterborough v. Catesby (Cro. jac. 166) Peters v. Goulden (27 Mich. 171) Pettis V. Johnson (56 Ind. 139) Peyton v. Moseley (3 T. B. Monr. 77) Pharmaceutical Society v. Lond., &c. Supply Assoc. (5 Ap. Cas. 857 ; 5 Q. B. D. 310; 4 Q. B. D. 813) 341 105 85 a 21 82, 155 212 PLA INDEX TO THE CASES CITED. PRI Seotioit Phelan v. Douglass (11 How. Pr, 193^ 108 Phelps V. Hawley (3 Lans. 160) 112 V. Hawley (52 N. Y. 23) 112 V. Parks (4 Vt. 488) 164 , People V. (5 Wend. 9) 176 Philadelphia v. Fox (14 Smith, Pa. 169) 18 Philadelphia and Erie Railroad v. Catawissa Railroad (3 Smith Pa. 20) 101, 104 Phile V. Anna (1 Dall. 197) 211 Phillips, Com'th v. (11 Pick. 28) 180, 204 V. Fadden (125 Mass. 198) 112 V. Hopwood (5 Man. & R. 15; 10 B. & C. 39) 186 t). New York (1 Hilton, 483) 36a, 178o , Reg. V. (2 Moody, 252) 223 V. State (15 Ga. 518) 102 Philpott V. St. George's Hospital (6 H. L. Cas. 338) Philpotts, Reg. v. (1 Car & K. 112) Phipson V. Harvett (1 Cromp. M. & K. 473) Phcenix Bank, Commonwealth v. (11 Met. 129) Pickering v. James (Law Rep. 8 C. P, 489) Pierce's Case (16 Maine, 255) Pierce v. Bartrum (Cowp. 289) V. Hopper (1 Stra. 249) V. Pierie (46 Ind. 86) , Rex V. (3 M. & S. 62) , State V. (14 Ind. 302) Vierpont v. Crouch (10 Cal. 315) Pieri v. Shieldsboro (42 Missis. 493) 19, 21 Pigg V. State (43 Texas, 108) 248 Pike V. Jenkins (12 N. H. 255) 200, 204 , Rex V. (1 Leach, 317; 2 East P. C. 647) Pilkey v. Gleason (1 Iowa, 522) Pillerin, U. S. v. (13 How. U. S. 9) Pilsbury, State ti. (31 La. An. 1) 101 132 160 212 250 n 193 22 198 16, 35 « 49 163 156 u 216 31 32 147 Pirn V. Nicholson (6 Ohio State, 176) 36 a , Rex V. (Russ. & Ry. 425) 174 Pinehback, State v. (2 Mill, 128) 216 Pingeer v. Snell (42 Maine, 53) 159 Piper, Com'th v. (9 Leigh, 657) 138 Pirates, United States v. (5 Wheat. 184) 163, 242 Pitman v. Com'th (2 Rob. Va. 800) 169, 183 «. Flint (10 Pick. 504) 80,146 V. Maddox (2 Salk. 690) 249 a, Pitte V. Shipley (46 Cal. 154) 95 a Pitts, State v. (58 Misso. 556) 255 Pittsburg, Commonwealth v. (2 Har- ris, Pa. 177) 22 Pittsburg, &c. Railroad v. Soutli West Pennsylvania Railway (27 Smith, Pa. 173) 82 Pittstown V. Plattsburgh (18 Johns. 407) 137 Planters' Bank v. Black (11 Sm. & M. 43) 86 V. State (6 Sm. & M. 628) 160 342 82 115 86 b, 45 104 190 6 247 22 97 112 6 36 a 23 84 39 255 167 Section Planters' and Merchants' Bank v. Andrews (8 Port, 404) 212 Plaquemine v. Roth (29 La. An. 261) 20 Piatt V. London (1 Plow. 35) 190 6 V. Sherry (7 Wend. 236) 163, 164 Platte ville v. Bell (43 Wis. 488) 20, 24 Plumb V. Sawyer (21 Conn. 351) Plumleigh v. Cook (13 111. 669) l^ummer v. People (74 111. 361) V. Plummer (37 Missis. 185) V. Whichcot (T. Jones, 60) Plunket, State v. (2 Stew. 11) Plunkett, State v. (3 Harrison, 5) Poertner v. Russel (.33 Wis. 193) Pointer, Com'th v. (5 Bush, 301) Police Jury of Plaquemines v. Pack- ard (28 La. An. 199) Polinsky v. People (11 Hun, 390) Pomeroy, Commonwealth v. (5 Gray, 486, note) Pond V. Maddox (38 Cal. 572) V. Negus (3 Mass. 230) Pool, State V. (2 Dev. 202) Poor Law Commissioners,. Rex v. (6A. &E. 1) 80 Pope V. Lewis (4 Ala. 487) 177 Popp, State V. (45 Md. 432) 46, 98 Porter's Case (Cro. Car. 461) 229 Porterfield v. Clark (2 How. U. S. 76) 115 Portland Bank v. Maine Bank (11 Mass. 204) 29, 107, 108 Posey, Com'th v. (4 Call, 109) 207, 213 Potter, People v. (47 N. Y. 375) 70, 92, 92 a Potts, Rex V. (Russ. & Ry. 353) 139 , State V. (76 N. C. 129) 242 a Powell, People v. (63 N. Y. 88) 231 Powers, In re (29 Mich. 504) 1 19 V. Shepard (48 N. Y. 540) 154 , State V. (36 Conn. 77) 189 rf, 204 Powlter's Case (11 Co. 29a) 82 Pratt V. Atlantic and St. Lawrence Railroad (42 Maine, 579) IfiO V. Jones (25 Vt. 303) 163 Pray K. Burbank (12N. H. 267) 222 V. Edie (1 T. R. 313) 49, 70, 82 Presbrey v. Williams (15 Mass. 103) 107 Prescott V. Illinois and Michigan Canal (19 111. 324) 29 V. Otterstatter (4 Norris Pa. 534) 195 a Preston v. Hunt (7 Wend. 53) 132, 231 Pretty v. Solly (26 Reav. 606) 112 o Prevost, Succession of (12 La. An. 577) 13, 14 Price V. Hopkin (13 Mich. 318) 31 V. Pollock (42 Ind. 497 J 141 , Reg. V. (3 Per. & D. 421 ; 11 A. &E. 727; 4 Jur. 291) 138,250 , Rex V. (5 Car. & P. 510) 223 , State V. (50 Ala. 568) 36 a , State u. (6 Halst. 203) 244 — — V. Thornton (10 Misso.. 135) 182 Prince George's Commissioners v. Laurel (51 Md. 467) 151 RAW INDEX TO THE CASES CITED. EIL Section Pritdmrd v. Spencer (2 Ind. 486) 82 Privilege of Priests (12 Co. 100) 250 a Probasco v. Moundsville (11 W. Va. 501) 82 Procureur v. Bruheau (Law Rep. 1 P. C. 1(39) 72 Prosser v. Chapman (29 Conn. 515) 164 Protector, Tiie u. Aslifield (Hardr. 62) 137 Public Schools v. Trenton (3 Stew. Ch. 667) 103 Puddifoot, Rex v. (1 Moody, 247) 247 Pugh V. Leeds (Cowp. 714) 81a , Reg. V. (6 Mod. 140) 168, 168 Pulaski u. Downer (5 Eng. 588) 159 Pulling V. People (8 Barb. 384) 111 Purdy V. People (4 Hill, N. Y. 384) 37 Purnell v. Wolverhampton New Water Works (10 C. B. n. s. 576) 112 i Pursell V. New York Life Ins. &c. Co. (42 N. Y. Super. 383) 249 Putnam v. Longley (11 Pick. 487) 80, 82 Pyle V. Maulding (7 J. J. Mar. 202) 105 Quackenbush v. Danks (1 Denio, 128) 82 Quarles v. State (5 Humph. 561) 205 Quigg, People v. (59 N. Y. 83) 112 b Quigley ;;. Gorham (5 Cal. 418) 101 Quinn, People v. (18 Cal. 122) 179 Eabb V. Graham (43 Ind. 1) 141 Rachel, The, v. U. S. (6 Cranch, 329) 177 Rackley, State v. (2 Blackf. 249) 86 Rader v. Southeasterly Road Dist. of Union (7 Vroom, 273) 178 V. Union (10 Vroom, 509) 36 a Ragsdale, United States v. (Hemp. 497) 72, 193 Railroad v. Hecht (95 U. S. 168) 112, 176 • "" 11a 129 176 193 37 255 78 181 •w. McClure (10 Wal. 511) Raines, State v. (3 McCord, 533) Ralston v. Lothain (18 Ind. 303) Ramsay, U. S. v. (Hemp. 481) Ramsey v. Heenan (2 Minn. 330) Randall, Rex v. (Russ. & Ry. 195) Randolph v. Bayue (44 Cal. 366) !}. Lamed (12 C. E. Green, 557) V. Middleton (11 C. E. Green, 543) 82 V. Milman (Law Rep. 4 C. P. 107) 189 c V. State (9 Texas, 521) 193 RatclifE V. RatclifE (1 Swab. & T. 467) 77 Rathbone v. Bradford (1 Ala. 312) 28 Rathbun v. Acker (18 Barb. 393) 193 Ratzky v. People (29 N. Y. 124) 185 Raudebaugh v. Shelley (6 Ohio State, 307) 156 Rauscher, State v. (1 Lea, 96) 42 6 Rawlings v. State (2 Md. 201) 42 i Rawlins v. Ellis (16 M. & \f'. 172 ; 10 Jur. 1039) ■ 198 Rawson v. State (19 Conn. 292) 82, 194, 200 Sbotion Ray, Ex parte (45 Ala. 15) 98 Raynard v. Chase (1 Bur. 2) 196 Read v. Com'th (22 Grat. 924) 110 c V. Frankfort Bank (23 Maine, 318) 176 Ream v. Com'th (3 S. & R. 207) 204 Reckards, State v. (21 Minn. 47) 21 Redman v. Sanders (2 Dana, 68) 204, 225 Redmond v. Glover (Dudley, 6a. 107) 105 Reed v. Beall (42 Missis. 274) 85 V. Davis (8 Pick. 514) 193 V. Ingham (3 Ellis & B. 889) 246 a V. Omnibus Railroad (33 Cal. 212) 34 w. Rawson (2 Litt. 189) 83 a , Reg. V. (23 Law Times Rep. 156 ; 28 Eng. L. & Eq. 133) 245 V. Richardson (98 Mass. 216) 150 Reekspear, Rex v. (1 Moody, 342) 204 Reid V. State (20 Ga. 681) 84 Reinhard v. New York (2 Daly, 243) 22 Reis V. Graff (51 Cal. 86) 84 Reithmiller v. People (44 Mich. 280} 189 a Remnant, ^ex w. (5 T. R. 169) 220 Renwick v. Morris (3 Hill, N. Y. 621; 7 Hill. N. Y. 575) 163, 169, 250, 250 a, 252 Restall V. London, &c. Railway (Law Rep. 3 Ex. 141) 178 Revnes, U. S. v (9 How. U. S. 127) 14, 32 Reynolds «. Holland (35 Ark. 56) 145 , People V. (5 Gilman, 1) 36 V. State (1 Kelly, 222) 84 V. State (3 Kelly, 53) .179 Rice V. Commonwealth (12 Met. 246) 204 , Commonwealth v. (9 Met. 253) 20 V. Foster (4 Harring. Del. 479) 36 V. Railroad (1 Black, 358) 177a, 178 Rich v. Flanders (39 N. H. 304) 91 V. Keyset (4 Smith, Pa. 86) 95o, 98 V. State (9 Texas Ap. 176) 185 Richards v. Dyke (3 Q. B. 256) 164 V. Patterson (30 Missis. 583) 160 Richardson, In re (6 Law Reporter, 392; 2 Story, 671) 28,29 u. Broughton (3 Strob. 1) 141, 231 y. Emswiler (14 La. An. 658) ■ 119 , Rex V. (6 Car. & P. 335) 216 V. State (3 Coldw. 122) 179 Ricker, State v. (29 Maine, 84) 142 Riddick v. The Governor (1 Misso. 147) 70, 137 V. Walsh (15 Misso. 519) 70, 81 Ridgelay, Rex v. (1 Leach, 189) 204 Ridgeley, Rex v. (1 East P. C. 171) 204 Ridgley ;;. State (7 Wis. 661) 110 6, Rigg V. Wilton (13 111. 15) Riggins V. State (4 Kan. 173) Riggs V. Martin (5 Pike, 506) V. Pflster (21 Ala. 469) Rigoney v. Neiman (23 Smith, Pa. 330) Riley v. State (9 Humph. 646) 343 110 c 97 84 a 178 130 243 246 ROS INDEX TO THE CASES CITED. STL Section Rillieux, United States v. (14 How. U. S. 189) Uipley, State v. (2 Brev. 300) Kising V. Dodge (2 Duer, 42) Kitchie v. Smith (6 C. B. 462) liiver Wear Commissioners v. Adam- son (2 Ap. Gas. 743) Kivers v. Cole (38 Iowa, 677) Rives V. Guthrie (1 Jones, N. C. 84) Kix V. Borton (12 A. & E. 470) Koad in Hatfield (4 Yeates, 392) Robbins's Case (Whart. St. Tr. 392) liobbins v. Omnibus Railroad (32 Cal. 472) V. People (95 111. 175) f. State (8 Ohio State, 131) Robert, Respublica v. (1 Dall. 39) Roberts v. Landecker (9 Cal. 262) V. State (2 Tenn. 423) 32 1B8 137 138 a 95 a 84 105 160 177 14 23,24 154 225 250 a 180,184 , State V. (1 Tread. 116) 222 V. yarboro (41 Texas, 449) 57 Robertson, Com'th v. (5 Cush. 438) 22, 26, 82 Robinson v. Bidwell (22 Cal. 379) 34, 36 D. Mayor (1 Humph. 156) 22 V. Reid (50 Ala. 69) 141 , Rex V. (2 Bur. 799) 138, 250 , Rex V. (2 Leach, 749; 2 East P. C. 1110) 163,174 , Rex V. (2 Stark. 485) 204 , State V. (33 Maine, 564) 204 V. Varnell (16 Texas, 382) 82 Roby V. West (4 N. H. 285) 180 Rochdale Canal v. King (14 Q. B. 122) 251 Rochester v. Bridges (1 B. & Ad. 847) 250 a V. Collins (12 Barb. 559) 22 , People V. (50 N. Y. 525) 36a , Reg. V. (7 Ellis & B. 910) 255 V. Upman (19 Minn. 108) 20 Rock Hill College v. Jones (47 Md. 1) 177a Rockwell V. Clark (44 Conn. 534) 112 V. Hubbell (2 Doug. Mich. 197) 84 Roderick, Rex v. (7 Car. & P. 795) 138 Rogers v. Goodwin (2 Mass. 475) 104 V. Hosldns (15 Ga. 270) 164 V. Jones (1 Wend. 237) 20, 23, 26 , State V. (10 Nev. 250) 366, 37 , State V. (10 Nev. 319) 1.59 V. Watrous (8 Texas, 62) 159, 163 Roles V. Roswell (5 T. R. 538) 112 RoUand u. Commonwealth (1 Nor- ris. Pa. 306) 79, 243 Rollins, State v. (8 N. H. 550) 186 Rood V. Chicago, &c. Railway (43 Wis. 146) 177 V. McCargar (49 Cal. 117) 34 Roosevelt v. Godard (52 Barb. 533) 90 Ropes V. Clinch (8 Blatch. 304) 14 Rose V. The Governor (24 Texas, 496) 103 Rosebaugh v. Saffin (10 Ohio, 31) 25 Rosenplaenter v. Roessle (54 N. Y. 262) 72 344 Section Ross, Rex V. (Russ. &Ry. 10; 2 East P. C. 1067) 220 , State V. (49 Misso. 416) 179 Rosseter v. Cahlmann (8 Exch. 361) 141 Rossiter, People v. (4 Cow. 143) 103 Rottenberrt v. Pipes (53 Ala. 447) 85 a Rounds V. Waymart (31 Smith, Pa. 395) 112 a, 156 Rourke, Rex v. (Russ & Ry. 386) 233 Rover, State!). (13 Nev. 17) 137 Rowley, Rex v. (Russ. & Ry. 110) 204 , State V. (12 Cunn. 101) 97 Royster, State i>. (65 N. C. 539) 248 Ruckmaboye v. Mottichund (8 Moore P. C. 4; 32 Eng. L. & Eq. 84) 97, 115 Rurasey v. Lake (55 How. Pr. 339) 1 12 Rupp V. Swineford (40 Wis. 28) 95 o Russell V. Com'th (7 S. & R. 489) 167 V. Wheeler (Hemp. 3) 197 Rutherford v. Greene (2 Wheat. 196) 84 Rutledge, State v. (8 Humph. 32) 163, 169 Ryall V. RoUe (1 Atk. 165) 49 Ryalls V. Reg. (13 Jur. 259; 18 Law J. N. 8. M. C. 69) 105 Ryan o. Hoffman (26 Ohio State, 109) 82 V. Lynch (68 111. 160) 37 V. State (5 Neb. 276) 65 V. State (32 Texas, 280) 119 V. Vanlandingham (7 Ind. 416) 255 Ryegate v. Wardsboro (30 Vt. 746) 86 Saekett, &e. Streets, In re (74 N. Y. 95) 36 a Saco V. Gurney (34 Maine, 14) 177, 178 Sacramento v. Bird (15 Cal. 294) 159 Sadi, Rex v. (1 Leach, 468; 2 East P. C. 748) 139 Safford, People v. (5 Denio, 112) 238 St. Charles v. Powell (22 Misso. 625) 103 a St. Edmund's, Reg. v. (2 Q. B. 72) 159 St. George, Beg..f. (9 Car. & P. 483) 245 St. Giles, Reg. v. (3 Ellis & E. 224) 86 St. Joseph, State u. (37 Misso. 270) 36 Saint Leonards, Shoreditch v. Frank- lin (3 C. P. D. 377) 212 St. Louis .;. Foster (52 Misso. 513) 36 6, 98, 152 a, 181 V. Grone (46 Misso. 674) 20 V. Independent Ins. Co. (47 Misso. 146) 154 V. McCoy (18 Misso. 238) 20 V. Russell (9 Misso. 507) 18 V. Shields (62 Misso. 247) 87 St. Louis County Court v. Sparks (10 Misso. 117) 255 , State V. (41 Misso. 52) 163 St. Louis Gas Light Co. v. St. Louis (46 Misso. 121) 141 St. Louis, &c. Railroad v. Teters (68 111. 144) 112 SCH INDEX TO THE CASES CITED. SHA Section St. Martin v. New Orleans (14 La. An. 113) 29, 126 St. Martins, Reg. v. (Law Rep. 2. Q. B. 493) 103 St. Mary, "Warwick, Reg. v. (1 Ellis &B. 816) 29,108,110 St. Pancras v. Batterbury (2 C. B. N. s. 477) 250 a , Rex «. (6 A. &E. 1) 112 6 St. Paul V. Traeger (25 Minn. 248) 19, 20 St. Peter's Church v. Scott (12 Minn. .395) 86 Salem Turnpike and Chelsea Bridge V. Hayes (6 Gush. 458) 163, 170 Saline County Court, State o. (48 Misso. 390) 112 Salisbury, Reg. u. (2 Q. B. 72) 154, 160 Salkeld v. Johnson (2 C. B. 749) 77 V. Johnston (1 Hare, 196) 49 Salmon v. Burgess (1 Hughes, 356) 29 Salomon, People v. (46 III. 415) 36 , People V. (51 111. 37) 36 Salters v. Tobias (3 Paige, 338) 192 Salters' Company u. Jay (3 Q. B. 109) 48 Sam Slick, The (2 Curt. C. C. 480) 93 Samanni v. Com'th (16 Grat. 542) 242 a Samperyac, U. S. v. (Hemp. 118) 85, 176 Sampeyreae v. U. S. (7 Pet. 222) 84 Samuel v. Evans (2 T. R. 569) 42 a San Antonio v. Gould (34 Texas, 49) 36 a Sanborn v. Fireman's Ins. Co. (16 Gray, 448) 111 Sanders, Reg. v. (9 Car. & P. 79) 216 V. State (58 Ala. 371) 160, 163 Sanford, State v. (1 Nott & McC. 512) 194 San Francisco v. Canavan (42 Cal. 541) 18 V. Hazen (5 Cal. 169) 82 , People V. (4 Cal. 127) 84 , People V. (21 Cal. 668) 84 San Francisco, &c. Railroad, People V. (28 Cal. 254) 154 , People V. (35 Cal. 606) 91 San Jose' v. San Jose, &c. Railroad (53 Cal. 475) . 93 Santo u. State (2 Iowa, 165) 34, 36, 91 Sarchet, United States v. (Gilpin, 273) 99 Sassovich, People v. (29 Cal. 480) 91 Satterwhite v. State (3 Texas Ap.428) 255 Saunders v. Carroll (12 La. An, 793) 84 Savage, Rex v. (1 Ld. Raym. 347) 250 State V. (32 Maine, 583) 93, 220 Savannah v. Hussey (21 Ga. 80) 23 — -, States. (T. U.P. Charl. 235) 22, 141, 163, 164 Sawyer, Rex v. (2 Car. & K. 181) 141 Scanlan v. Childs (33 Wis. 663) 104 Schaffer, Succession of (13 La. An. 113) 32 Scheftels v. Tabert (46 Wis. 439) 98, 160, 181 Schieve V. State (17 Wis. 252) 163 Sehmeider v. McLane (4 Abb. Ap. 154) 24 Schmidt v. State (14 Misso. 137) 136 Seotiou Schnierle, State v. (5 Rich. 299) 111 Schoonmaker, People v. (63 Barb. 44) 70, 72, 76 Schriefer v. Wood (5 Blatch. 215) 101 Sehwuhow v. Chicago (68 111. 444) 20 Schuyler u. Mercer (4 Gilman,20) 112, 155 Scidmore v. Smith (13 Johns. 322) 163 Scofield !). Collins (3 Cow. 89) 82, 93 Scoggin V. Taylor (8 Eng. 380) 163 Scott V. Clark (1 Iowa, 70) 31 V. Com'th (2 Va. Cas. 54) 152, 177 V. Lunt (7 Pet. 596) 115 , Reg. V. (3 Q. B. 543) 220 V. Searles (1 Sm. & M. 590) 82 V. Seymour (1 H. & C. 219) 175 V. Smart (1 Mich. 295) 90, 180 V. State (22 Ark. 369) 64 , State V. (1 Bailey, 294) 255 , State V. (17 Misso. 521) 36 Scovern v. State (6 Ohio State, 288) 249 Scrinegrour v. State (1 Chand. 48) 41, 168 Scriveners' Company v. Brooking (2 Gale & D. 419 ; 6 Jur. 835) 22 Scudder v. Gori (18 Abb. Pr. 207 ; 28 How. Pr. 155) 178 , State u. (3 Vroom, 203) 84, 85 Seaborn v. State (20 Ala. 15) 255 , State V. (4 Dev. 305) 159, 161, 163 Seal V. State (13 Sm. & M. 286) 56 Seamans v. Carter (15 Wis. 548) 84 Searcy v. Stubbs (12 Ga. 437) 176 Searle, Com'th v. (2 Binn. 332) 166 V. Williams (Hob. 288) 193 Sears v. United States (1 Gallis. 257) 167 Seas, Rex v. (1 Leach, 304 ; 2 East P. C. 643) 233 Seaton v. Chicago, &c. Railroad (55 Misso. 416) 250 rf Seaving v. Brinkerhoff (5 Johns. Ch. 829) 193 Sedgwick v. Bunker (16 Kan. 498) 85 Seibert v. Copp (62 Misso. 182) 85 a Seiple V. Elizabeth (3 Dutcher, 407) 112 Selden v. Preston (11 Bush, 191) 141 Sellers!). Com'th (13 Bush, 331) 98 V. Dugan (18 Ohio, 489) 254 Seneca County Bank v. Lamb (26 Barb. 595) 22 Senior, Rex v. (1 Leach, 496 ; 2 East P. C. 593) 220 Septon, State v. (3 R. I. 119) 37 Severance, State v. (49 Misso. 401) 104 , State V. (55 Misso. 378) 154 Sewall I). Jones (9 Pick. 412) 192 Seymour v. Milford and Chillicothe Turnpike (10 Ohio, 476) 163 Shadbolt, Rex v. (5 Car. & P. 504) 212 Shadle, State v. (41 Texas, 404) 36 a Shafer v. Mumma (17 Md. 331) 24 Shaffer, State v. (21 Iowa, 486) 179 Shaftesbury v. Russell (1 B. & C. 666) 164 Shapley v. Garey (6 S. & R 539) 105 Sharp V. Hubbard (2 Mod. 58) 105 V. Johnson (4 Hill, N. Y. 92) 193 345 SIM INDEX TO THE CASES CITED. SMI Section Sharp V. New York (31 Barb. 672) 86 a V. Speir (4 Hill, N. Y. 76) 193 V. Warren (6 Price, 131) 250 a Sharpe's Case (2 Lewin, 233) 220 Sharpe, Rex v. (1 Moody, 125) 231 Sharpies, Rex v. (4 T. R. 777) 24 Shattuck V. Woods (1 Pick. 171) 163 Shaver, Com'th v. (3 Watts & S. 338) 242 Shaw V. Macon (21 Ga. 280) 147 Shaw-mux, U. S. v. (2 Saw. 364) 212 Shawnee v Carter (2 Kan. 115) 197 Sheets v. Selden (2 Wal. 177) 31 a, 105 Sheffield Canal, Rex v. (4 New Sess. Cas. 25; 14Jur. 170) 138 Shelden v. Miller (9 La. An. 187) 35 a Shelton v. Baldwin (26 Missis. 439) 163 Shepard, People v. (36 N. Y. 285) 38, 41 Shepardson y. Milwaukee, &o. Rail- road (6 Wis. 605) 34 Shepherd v. Hills (11 Exch. 55) 250 a y. People (25 N. Y. 406) 185 , Rex V. (2 East P. C. 944) 204 Sheppard u. Gosnold (Vaugh. 159) 97 , Rex V. (1 Leach, 22B) 204 «. State (1 Texas Ap. 522) 177 Shields v. Bennett (8 W. Va. 74) 36 a, 36 b Shinn v. Com'th (3 Grant, Pa. 205) 159 Shoemaker, State v. (7 Misso. 177) 216 Shortridge, Com'th w. (3 J. J. Mar. 638) 105 Shreveport v. Levy (26 La. An. 671) 19, 20 Shrewsbury's Case (9 Co. 466) 88 Shriedley v. State (23 Ohio State, 130) 78 Shropshire v. Glascock (4 Misso. 536) 246 , Reg. V. (8 A. & E. 173) 107, 110 Shubrick v. State (2 S. C. 21) 248 ShuUard, Rex v. (Russ. & Ry. 200) 141 Shumpert, State v. (1 S. C. 85) 85 a Sibley v. Smith (2 Mich. 486) 77, 80, 193 Sickles V. Sharp (13 Johns. 497) 199 Sikar «. Chicago, &c. Railroad (21 Wis. 370) 186 Sill, Reg. V. (Dearsly 10; 14 Eng. L. & Eq. 135) 168 Silsbee, Com'th v. (9 Mass. 417) 138 Silver, State v. (9 Nev. 227) 36 a Simco V. State (8 Texas Ap. 406) 84 a Simington v. State (5 Ind. 479) 163 Simms v. State (8 Texas Ap. 230) 179 Simonds v. Powers (28 Vt. 354) 70, 93 , State V. (3 Misso. 414) 18 Simonton, Ex parte (9 Port. 390) 112 Simpkin, Ex parte (2 Ellis & E. 392) 110 c Simpson, Commonwealth v. (9 Met. 138) 140, 142 V. Margitson (11 Q. B. 23) 105 , Reg. V. (Car. & M. 669) 135 , Reg. V. (10 Mod. 341) 80 , Reg. V. (lO Mod. 378) 141 V. State (lO Yerg. 525) 163, 169 , State V. (73 N. C. 269) 231 V. Sutton (Phillips, 112) 111 Sims V. Cross (10 Yerg. 460) 2.32 V. Marryat (17 Q. B. 281) 37 346 Section Sims t.-.,Sims (75 N. Y. 466) 205 Sinking Fund Commissioners v. Northern Bank (1 Met. Ky. 174) 178 Sir John Knight's Case (3 Mod. 117) 163, 166, 168 Six Fermenting Tubs, United States w. (1 Abb. U. S. 268) 177 a Skeen, Reg. v. (Bell C. C. 97) 92 rf Skelton v. Bliss (7 Ind. 77) 254 Skutt, Rex V. (1 Leach, 106; 2 East P. C. 582) 217 Slack, Com'th v. (19 Pick. 304) 82, 132, 231 239 V. Jacob (8 W. Va. 612) ' 90 Slaren, Ex parte (3 Texas Ap. 662) 20 safer, Com'th v. (3 Smith, Pa. 71) 45, 46 Sloan, Com'th v. (4 Cush. 52) 238 V. State (8 Blackf. 361) 18 Sly, State v. (4 Oregon, 277) 24 Smails v. White (4 Neb. 353) 36 a Smalls, State v. (11 S. C. 262) 37 Smedes, State v. (26 Missis. 47) 178 a Smets V. Weathersbee (R. M. Charl. 537) 28 Smith, Ex parte (40 Cal. 419) 156, 163 V. Allen (31 Ark. 268) 212 V. Arapahoe Dist. Court (4 Colo. 235) 177 V. Bartram (11 Ohio State, 690) 115 V. Causey (22 Ala. 568) 193 V. Com'th (4 Grat. 532) 204 . Commonwealth v. (14 Mass. 374) 204 , Commonwealth v. (103 Mass. 444) 163 , Com'th V. (7 Pick. 137) 204, 214 V. Hoyt (14 Wis. 252) 31, 186 V. Humphrey (20 Mich. 398) 84 V. Janesville (26 Wis. 291) 36 V. Judge (17 Cal. 547) 85 a V. Kibbee (9 Ohio State, 563) 83 a V. Kinne (19 Vt. 564) 239 V. Lockwood (13 Barb. 209) 249 V. Look (108 Mass. 139) 250 d V. McCarthy (6 Smith, Pa. 3-59) 36 0. Moffat (l.Barb. 65) 155, 192 V. Morse (2 Cal. 524) 85 a V. Packard (12 Wis. 371) 85 a V. People (25 111. 17) 163 0. People (47 N. Y. 330) 70, 82, 86, 151, 198 !>. Philadelphia (2 Parsons, 293) 178 a V. RandaU (6 Cal. 47) 93 , Reg. V. (Law Rep. 1 C. C. 266) 128, 139 , Rex V. (2 Doug. 441 ) 138, 250 , Rex V. (Russ. & Ry. 267) 212 V. Smith (Mart. N. C. 26) 28 V. Smith (19 Wis. 522) 98 V. Spooner (3 Pick. 229) 192 V. State (5 Humph. 163) 210 V. State (28 Ind. 321) 54 V. State (14 Misso. 147) 159, 163 V. State (1 Stew. 506) 159, 163, 168, 172 SPR INDEX TO THE CASES CITED. STO 83 a, 84 99 154, 163 160 ii43 139, 204 255,255 a 156 166 189 rf 121) 242 154 216 199 97 34 149 139 yEOTION Smith V. State (5 Texas Ap. 318) 58 V. State (7 Texas Ap. 286) 166 , Statei). (Cheves, 167) 46,82,200, 216 , State V. (38 Conn. 397) , State V. (5 Humph. 394) , State «. (59 Ind. 179) , State V. (7 Iowa, 244) , State V. (46 Iowa, 670) , htate V. (32 Maine, 369) , State V. (67 Maine, 328) , State w. (8 S. C. 127) , State V. (44 Texas, 443) V. Stevens (82 111. 654) , United States v. (4 Day, , United States !'. (5 Wlieat. 153) 242 V. Van Gilder (26 Ark. 527) 85 Smithee v. Garth (33 Ark. 17) 91 Smitherman, State v. (1 Ire. 14) 220 Sneed v. Commonwealth (6 Dana, 338) 226 Snell V. Bridgewater Cotton Gin Man. Co. (24 Pick. 296) , Hex V. (2 Moody & R. 44) Snelling, Commonwealth v. (4 Binn. 379) Snoddy v. Cage (5 Texas, 106) Snow, State v. (3 R. I. 64) Snowden v. Snowden (1 Bland, 550) Soares, Rex v. (2 East P. C. 974) Society, &c. v. New Haven (8 Wlieat. 464) 212 Solomon v. Carterstille (41 Ga. 157) 37 V. Dreschler (4 Minn. 278) 138 a Solomons, State v. (3 Hill, S. C. 96) 84, 193 Somerset v. Dighton (12 Mass. 383) 84, 93 Soto, People v. (49 Cal. 67) 54, 19!) a, 248 Soiiter V. The Sea Witch (1 Cal. 162) 141 South, State v. (5 Rich. 489) 242 South Ottawa v. Perkins (94 U. S. 260) 37, 37 a Southwark Bank v. Com'th (2 Casey, Pa. 446) 29, 77, 151 Southworth v. State (5 Conn. 325) 163, 171 Sovereign v. State (7 Neb. 409) 16, 36 b Sparks v. Clapper (30 Ind. 204) 85 a Sparrow ». Davidson College (77 N. C. 35) 79, 243 , Rex V. (2 Stra. 1123) 255 Spaulding v. Alford (1 Pick. 33) 31 Specht!). Commonwealth (8Barr,312) 237 Speed, Rex o. (1 Ld. Raym. 583) 132, 232 Speer v. State (2 Texas Ap. 246) 108 Spencer v. State (20 Ala. 24) 242 V. State (5 Ind. 41) 147 Spicer, Reg. v. (1 Den. C. C. 82, 1 Car. & K. 699) 212, 247 Spltler V. Young (63 Misso. 42) 22 Sponsler, People v. (1 Dak. Ter. 289) 163 Sprague v. Birdsall (2 Cow. 419) 113 V. Norway (31 Cal. 173) 105 Spring V. Olney (78 111. 101) 57 Springer v. McSpadden (49 Misso. 299) 36 Springfield v. Connecticut River Rail- road ( 4 Cush. 63) 189 a Section Springfield «. Edwards (84 111. 626) 92, 92a Squires, People v. (14 Cal. 12) 178 o , State V. (26 Iowa, 340) 85 Staats V. Hudson River Railroad (4 Abb. Ap. 287) 154 , U. S. V. (8 How. U. S. 41) 204 Stacey v. Lintell (4 Q. B. D. 291) 190 a V. State (3 Texas Ap. 121) 255 Stackhouse w. Halsey (3 Johns. Ch. 74) 105 Stafford v. Ingersol (3 Hill, N. Y. 38) 163 Standen v. University of Oxford (W. Jones, 17) 126 Stanley, Rex v. (Russ. & Ry. 432) 163 Stapp V. State (3 Texas Ap. 138) 40 Starr, United States v. ( Hemp. 469) 84, 193 State, Ex parte (52 Ala. 231) 92 6, 178 a State Line, &c. Railroad's Appeal (27 Smith, Pa. 429) 36 a Stayton v. Hulings (7 Ind. 144) 256 Stead V. Carey (1 C. B. 496) 38, 112 Steamship Co. v. Joliffe (2 Wal. 450) 178, 250 a Stearns v. Atlantic, &c. Railroad (46 Maine, 95) , Commonwealth v. (2 Met. 343) V. Stearns (16 Mass. 167) Steel V. State (26 Ind. 82) Steele v. State (61 Ala. 213) V. State (5 Blackf. HO) V. State (1 Texas, 142) Steines v. Eranklin (48 Misso. 167) ' Stephen v. State (40 Ala. 67) Stephen.son v. Higginson (3 H. L. Cas. 638 ; 18 Eng. L. & Eq. 50) 96, 100 , State V. (2 Bailey, 334) 46, 190, 192, 193, 200 V. Wait (8 Blackf. 508) Sterne v. State (20 Ala. 43) Stetson, People v. (4 Barb. 151) Stevens v. Com'th (4 Leigh, 683) V. Dimond (6 N. H. 330) V. Evans (2 Bur. 1152) V. Jeacocke (11 Q. B. 731) , People V. (13 Wend. 341) 171, 249, 252 Stevenson v. State (5 Baxter, 681) 189 a , State V. (2 Pike, 260) 31 Steward v. Lamoreaux (5 Abb. Pr. 14) 178 Stewart v. Com'th (10 Watts, 306) 208 V. State (13 Ark. 720) V. State (4 Blackf. 171) , State V. (47 Misso. 382) , State V. (26 Ohio State, 216) V. Stringer, (41 Misso. 400) V. Walters (9 Vrooni, 274) Stief V. Hart (1 Comst. 20) Stilz V. Indianapolis (65 Ind. 515) Stine V. Bennett (13 Minn. 153) Stinson, State v. (17 Maine, 154) Stirman v. State (21 Texas, 734) Stockett V. Bird (18 Md. 484) Stockton, &e. Railroad v. Stockton (41 Cal. 147) Stoddart v. Smith (5 Binn. 355) 347 137 204 164 119 163 34 255 112 184 177 a 163 231 207 182 250 a 250 a 82 212 82 250 a 119 87 137 18 31,85 82 159 64 91a 35 6 SUM INDEX TO THE CASES CITED. TEM Section Stodder, Com'th u. (2 Cush. 562) 18, 19, 22 Stoeverw. Immell (1 Watts, 258) 177 V. Whitman (6 Binn. 417) 150 Stoke Damerel, Hex v. (7 B. & G. 563) bO Stokes V. Rodman (5 R. 1. 405) 86 , State V. (Coxe, 392) 141 StoU, State v. {2 S. C. 538) 163 Stollenwerk v. State (55 Ala. 142) 248 Stoller, State u. (38 Iowa, 321) 199 a, 245 Stone V. Mississippi {101 U. S. 814) 147 , Rex i;. (1 Leach, 334; 2 East P. C.) 233 , V. State (Spencer, 401) 204 , State V. (43 Wis. 481) 177 Stoneman o. Whaley (9 Iowa, 390) 79, 163 Stoughton V. Baker (4 Mass. 522) 142 Stout, Com'th V. (7 B. Monr. 247) 132 , People V. (23 Barb. 349) 36 , State V. (7 Neb. 89) 103 Stowel V. Zouch (1 Plow. 353) 82, 190 Strack, People v. (3 Thomp. & C. 165; 1 Hun, 96) 82 Stradling v. Morgan (1 Plow. 199) 46 Stratton v. Hague (4 Call, 564) 132 Strauss v. Heiss (48 Md. 292) 159 Street v. Com'th (6 Watts & S. 209) 155, 163 Streubel v. Milwaukee, &c. Kailroad (12 Wis. 67) 177 a Striker v. Kelly (7 Hill, N. Y. 0) 255 Strong V. Birchard (5 Conn. 357) 105 V. Bliss (6 Met. 393) 150 u. Clera (12Ind. 37) 83 « V. Daniel (5 Ind. 348) 33 V. Dennis (13 Ind. 514) 83 a V. State (1 Blackf.193) 163, 167, 185 V. Stebbins (5 Cow. 210) 193 Strother v. Hutchinson (4 Bing. N. C. 190 5 237 36 a 137 Stroud, State v. (1 Brev. 551) Stuart V. Kinsella (14 Minn. 524) Sturgeon v. State (1 Blackf. 39) Sturges V. Crowninshield (4 Wheat. 122) 197 Sturgis V. Hull (48 Vt. 302) 83 a, 84 Sturtevants v. Alton (3 McLean, 393) 137 Stutson, State v. ( Kirby, 52) 204 Sudbury Meadows v. Middlesex Canal (23 Pick. 36) 137, 250, 250 a Suche, In re (1 Ch. D. 48) 84 SuflFolk Justices, Reg. v. (2 Q. B. 85) 159 Sugar V. Sackett (13 Ga. 462) 193 Sullivan v. Adams (3 Gray, 476) 41, 152 V La Crosse, &c. Steam Packet Co. (10 Minn. 386) 119 V. McCammon (51 Ind. 264) 20 V. Oneida (61 III. 242) 20 V. Park (33 Maine, 438) 192 V. People (15 III. 233) 154, 168, 186 Sumner v. Cummings (23 Vt. 427) 177 State, V. (10 Vt. 587) 194, 231, 245 Sumter v. Desohamps (4 S. C. 297) 20 348 Section Superior District Court, State v. (29 La. An. 223) 31 Supervisors v. United States (4 Wal. 435) 112 Surtees v. EUison (9 B. & C. 750) 177 a Sussex Peerage Case (11 CI. & F. 85) 48, j 70, 72, 82 ' Sutcliffe, State v. (4 Strob. 372) 213 , Sutherland v. De Leon (1 Texas, 250) 90, I 176 [ Sutton, Rex v. (4 M. & S. 532) 49, 50 I Swainson v. Bishop (52 Misso. 227) 111 Swann v. Buck (40 Missis. 268) 154, 159 , Sweetser, People v. (1 Dak. Ter. 308) 243 I , State t>. (53 Maine, 438) 112 I Swift r. Applebone ( 23 Mich. 252) 193 i V. Luce (27 Maine, 285) 72, 81 I , State V. (10 Nev. 176) 37 ' , State V. (11 Nev. 128) 34 Swift Courtney, &c. Co. v. United States (14Ct. of CI. 481) 104 Swift Run Gap Turnpike, Common- wealth V. (2 Va. Cas. 301) 250 Swindelu. State (32 Texas, 102) 248 Swinford, In re (6 M. & S. 226) 105 Swinney v. Port Wayne, &c. Rail- road (59 Ind. 205) 154, 163 Swisher, State v. (17 Texas, 441) 36 Swope, State v. (7 Ind. 91) 97 Sydney v. State (3 Humph. 478) 131 Tabb V. Baird (3 Call, 475) - 254 Talcott V. Harbor Commissioners (53 Cal. 199) 112 b Tallamoni;. Cardenas (14 La. An. 509) 186 Tallassee Manuf. Co. v. Glenn (50 Ala. 489) 36 a Tannis v. St. Cyre (21 Ala. 449) 154 Tattersal, Rex o. ( 1 Russ. Crimes, 3d Eng. ed. 27) 135 Tattle V. Grimwood (3 Bing. 493) 186 Taunton Saint James, Eex v. (9 B. & C. 831) 57 Taylor i>. Americus (39 Ga. 59) 22 ». Plint (35 Ga. 124) . 35o V. Mitchell (7 Smith, Pa. 209) 84 V. Morton (2 Curt. C. C. 454) 11 a, 14 V. Newman (4 B. & S. 89 ; 9 Cox C. C. 314) 132 V. Oldham (4 Ch. D. 395) 112 a V. Palmer (31 Cal. 240) 87, 110 c , Rex V. (Russ. & Ry. 373) 163, 171, 204, 224 233 177 a, 178 28 , Rex V. (Russ. & Ry. 418) V Hushing (2 Stew. 160) V. State (31 Ala. 383) V. State (7 Blackf. 93) 151, 177, 180 V. State (7 Humph. 510) 163, 171 , State «. (2 McCord, 483) 152, 168, 171, 204, 242 V. Taylor (10 Minn. 107) 92 a V. U S. (3 How. U. S. 197) 195, 199 Temple v. Hays (Morris, 9) 28 TIL INBEX TO THE CASES CITED. TCTR _ Seotioit Ten Cases of Shawls, U. S. v. (2 Paine, 162) 243 Ten Eyck >: Frost (5 Cow. 846) 40 Tenbroek, U. S. v. (2 Wheat. 248) 216 Tennessee v. Davis (100 U. S. 257) 33 V. Sneed (96 U. S. 69) 86 a Tennyson v. Yarborough (7 Moore, 258 ; 1 Bing. 24) 86 Territory v. Lee (2 Mon. Ter. 124) 91 Texas v. Wliite (7 Wal. 700) 95 a, 246 Thames «. Hall (Law Rep. 3 C. P. 415) 154, 156 Thayer v. Bond (3 Mass. 296) 82 Theriat v. Hart (2 Hill, N. Y. 380) 98 Thileneus, State v. (48 Misso. 479) 36 b Thomas v. Afflick (4 Harris, Pa. 14) 107 V. Commonwealth (2 Leigh, 741) 204 V. Daniel (2 McCord, 354) 147 V. Mahan (4 Green). 513) 113 , Reg. V. (4 Car. & P. 237) 223 , Rex V. (2 East P. C. 605 ; 2 Leach, 877) 204 w. Richmond (12 Wal. 349) 17 a, 19 V. Scott (23 La. An. 689) 31 V. Shoemaker (6 Watts & S. 179) 105 V. State (3 Texas Ap. 112) 177 Thomasson v. State (15 Ind. 449) 36 a Thompson v. Bassett (5 Ind. 535) 177 v. Bulson (78 111. 277) 67 , Com'th V. (12 Met. 231) 206 V. Hill (3 Yerg. 167) 164 V. Lack (3 C. B. 540) 82 I'. Mt. Vernon (11 Ohio State, 688) 17 a, 22 , Reg. u. (4 Eng. L. & Eq. 287) 127 , Reg. t'. (20 Law J. N. s. M. C. 183; 15Jur.654) 163 , Rex V. ( 1 Leach, 338) 233 V. State (20 Ala. 54) 82 , State V. (41 Misso. 25) 84 , State V. (10 La. An. 122) 104 a , Slate V. (70 Maine, 196) 163 , State V. (2 Strob. 12) 163, 166, 168,252 Thorn, Reg. v. (Car. & M. 206) 216 Thome v. Cramer (15 Barb. 112) 36 , Rex V. (2 East P. C. 622) 163 Thornton v. Boyd (25 Missis. 598) 106 , State V. (37 Misso. 360) 24 Thorpe v. Adams (Law Rep. 6 C. P. 125) 112 a V. Schooling (7 Nev. 15) 81, 159, 163 Three Railroad Cars, United States V. (1 Abb. U. S. 196) 78 Three Tons of Coal, United States V. (6 Bis. 379) 195 Threlkeld, Rex n. (4 B. & Ad. 229) 66, 67 Tliurman v. State (18 Ala. 276) Thurston w. Prentiss (1 Mich. 193) Tieknor's Estate (13 Mich. 44) Ticknor v. McClelland (84 111.471) Tidwell, State v. (5 Strob. 1) Tierney v. Dodge (9 Minn. 166) Tiltonu. Swift (40 Iowa, 78) 93 249, 250 a 87 112 149 152 84 a, 85 34 246 a 112 105 152 a 22 248 Section Tims V. State (?6 Ala. 165) 34, 152 Tinsley, Reg. v. {i New Sess. Cas. 47 ; 14 Jur. 174 ; 19 Law J. N. s. M. C. 50) 164 Tiphaine, People v. (3 Parker C. C, 241) Tisdell V. Combe (7 A. & E. 788) Tithe Commissioners, Rex v. (14 Q. B.459) Titus I'. Preston (1 Stra. 652) Tivey v. People (8 Mich. 128) , Reg. V. (1 Den. C. C. 63) 132, 163 Tobacco Factory, U. S. w. (1 Dil. 264) 14 Tobacco Pipe Makers v. Woodroffe (7 B. &C.838) Toledo, &c. Railways. Cole (50 111. 184) Tollett M. Thomas (Law Rep. 6 Q.B. 514) 79, 243 Tombeckbee Bank, State v. (1 Stew. 347) 177 Tomlinson v. Bullock (4 Q. B. D. 230) 28 Tootle, State v. (2 Harring. Del. 541) 212 247 248 Torrance v. McDougald (12 Ga. 526) ' 82 Torrey n. Corliss (33 Maine, 333) 82 V. Millbnry (21 Pick. 64) 255 Tottenham, Rex v. (7 Car. & P. 237) 216 Towle V. Marrett (3 Greenl. 22) 159, 161, 163 V. Smith (2 Rob. N. Y. 489) , State V. (48 N. H. B7) Towles, Ex parte (48 Texas, 413) Townsend, In re (4 Hun, 31) V. Brown (4 Zab. 80) V. Read ( 10 0. B. n. s. 308) Townsend Savings Bank v. Epping (3 Woods, 390) 151 Townsey, People v. (5 Denio, 70) 163, 177 184 Tracy v. Reed (4 Blackf. 56) , Reg. V. (6 Mod. 30) Trapnall, Ex parte (1 Eng. 9) Tredway v. Gapin (1 Blackf. 299) Tremble v. Crowell (17 Mich. 493) Trenton, State v. (9 Vroom, 64) Trickey, Com'th v. (13 Allen, 559) Trigally v. Memphis (6 Coldw. 382) Tripp V. Grouner (60 111. 174) Troy's Case (1 Mod. 5) Troy V. Bacon (2 Abb. Ap. 127) V. Cheshire Railroad (3 Fost. N. H. 83) 250 a Troy, &c. Railroad v. Commonwealth (i27 IMass. 43) 103 True V. Plumley (36 Maine, 466) 110 c Trueman v. Lambert (4 M. & S. 234) 49 Tuchin, Reg. v. (2 Ld. Rnym. 1061) Tucker v. Burns (2 Swan, Tenn. 35) TuUet V. Linfield (3 Bur. 1455) Turleyy. Logan (17 111. 151) Turner v. American Baptist Mis- sionary Union (5 McLean, 345) V. Barlow (3 Fost. & F. 946) , Com'th V. (1 Cush. 493) "349 156 198 34 250 a 65 243 164 139 163 31 150 112 a 143 22 138 139 42 6 103 180 105 29 14 105 19,22 VAN INDEX TO THE CASES CITED. WAL Section Turner, Reg. v. (8 Car. & P. 755) 220 «. State (40 Ala. 21) 79,163 Turney v. Wilton (36 111. 385) 87 Turpen v. Tipton (7 Ind. 172) 178a Turtle V. Hartwell (6 T. R. 426) 190 Tuskaloosa Bridge v. Jennisoa (33 Ala. 476) 120 Tuton V. State (4 Texas Ap. 472) 177 Tuttle V. Hill8 (6 Wend. 213) 127, 232 V. State (4 Conn. 68) 208 Tu'Xbury's Appeal (67 Maine, 267) 97 Twenty-eight Cases (2 Ben. 63) 195 Twenty-eight Packages, U. S. v. (Gilpin, 306) 195,225 Twenty-five Cases of Cloths, United States V. (Crabbe, 356) 160, 187 Twenty -four Coils of Cordage, United States V. (Bald. 502) 100 Twenty-two Packages of Cloth v. United States (16 Pet. 342) 160 Two Hundred Chests' of Tea (9 Wheat. 430) 99 Twogood, State v. (7 Iowa, 252) 160 Twyue's Case (3 Co. 80 b) 192 Tyler v. People (8 Mich. 320) 91 , People V. (36 Cal. 522) 186 u. Tyler (19 111. 151) 97 Tynan v. Walker (35 Cal. 634) 76 Tynen, U. S. v. (11 Wal. 88) 157, 158 Tyson v. Postlethwaite (13 111. 727) 163 V. Thomas (McClel. & Y. 119) 138a Ulrich, People v. (2 Abb. Pr. 28) 110 a Ulster, People v. (63 Barb. 83) 85 Union, Stateu. (4 Vroom, 350) 18, 36 a, 85a Union Branch Railroad v. East Ten- nessee and Georgia Railroad Bank- ing Co. (14 Ga. 327) 163 Union Ins. Co. v. Hoge (21 How. U. S. 35) 104 Union Iron Co. v. Pierce (4 Bis. 327) 83 a, 85 b, 154, 177 Union Pacific Railroad, United States V. (91 U. S. 72) 46, 75, 76, 77 United Patriots' National Benefit Soc. In re (4 Q. B. D. 29) 157 University o. Williams (9 Gill & J. 365) 91 Upchurch, State v. (9 Ire. 454) 168, 193, 196 199 , State V. (72 N. C. 146) ' 107 Urlyn, Rex v. (2 Saund. Wms. ed. 308, note) ' 166 Usener v. State (8 Texas Ap. 177) 37 Utica Ins. Co., People v. (15 Johns. 358) 77, 93, 212 Uwchlan Township Road (6 Casey, Pa. 156) 177,177 a Valesco v. State (9 Texas Ap. 76) 248 Vallance v. King (3 Barb. 548) 163 Van Alsline v. People (37 Mich. 523) 41 Vandeleer, Rex«. (1 Stra. 69) 80 350 Section Vanderwall v. Commonwealth (2 Va. Cas. 275) 105 Vandeventer v. New York and New Haven Railroad (27 Barb. 244) 141 Vandine, Petitioner (6 Pick. 187) 20, 22 Vanhorne v. Dorrance (2 Dall. 304) 12 Van Inwagan v. Chicago (61 III. 31) 177 a Van Loon v. Lyon (4 Daly, 149) 82 Van Rensselaer v. Livingston (12 Wend. 490) 84 V. Onondaga (1 Cow. 443) 193 Van Riper i'. Essex Public Road (9 Vroom, 23) 82 Van Stralen, State v. (45 Wis. 437) 159 Van Valkenburgh v. Torrey (7 Cow. 252) 176, 180, 190, 193, 199 Van Veghten v. Van Veghten (4 Johns. Ch. 501) ' 160 Vaux V. VoUans (4 B. & Ad. 525) 255 Veal V. State (8 Texas Ap. 474) 184, 185 Veazie v. China (50 Maine, 518) 256 Venour's Settled Estates, In re (2 Ch. D, 522) 61 Vermillion v. Potts (10 Ind. 286) 154 Vernon, State v. (53 Misso. 128) 156 Verona Central Cheese Co. v. Mur- taugh (50 N. Y. 314) 190 e Verona Central Cheese Factory v. Murtaugh (4 Lans. 17) 193 Vestry v. Mathews (4 Des. 578) 17 a Vicaro v. Com'th (5 Dana, 504) 246 Victory v. Fitzpatrick (8 Ind. 281) 249, 250 a Vigo's Case (21 Wal. 648) 189 rf Vincent, Ex parte (26 Ala. 145) 96, 242 Vine, Reg. v. (Law Rep. 10 Q. B. 195) 83a, 84 a Vinsant v. Knox (27 Ark. 266) 98 Virt, State v. (3 Ind. 447) 164 Volmer v. State (34 Ark. 487) 17!) Von Glon, State v. (1 McMul. 187) 210 Von Hoffman v. Quincy (4 Wal. 535) 197 Von Schmidt v. Huntington (1 Cal. 55) 82, 84 Voss, U. S. V. (1 Cranch C. C. 101) 134 Waddington, Rex u. (1 B. & C. 26) 163, 171 Wade V. State (40 Ala. 74) 184 Wagner v. Tice (36 Iowa, 599) 141 Wakefield v. Phelps (37 N. H. 295) 86, 159 V. State (5 Ind. 195) 198 Wakeling, Rex v. (Russ. & Ry. 504) 216 Wakker, In re (Edm. Sel. Cas. 575) 42 b Waldo V. Bell (13 La. An. 329) V. Wallace (12 Ind. 569) Wales V. Stetson (2 Mass. 143) Walford, Rex v. (5 Esp. 62) Walker v. Chapman (22 Ala. 116) 104 a 24 118 174 255 - V. Cincinnati (21 Ohio State, 14) 92, 98 V. Dunham (17 Ind. 483) 178 a , People V. (17 N. Y. 502) 111 WAT INDEX TO THE CASES CITED. WES Section Walker, Reg. ;;. (Law Eep. 10 Q. B. 355 ; 13 Cox C. C. 94) V. State (49 Ala. 329) , State V. (N. C. Term. E. 229) 250 36 a 163, 164 (;. Thelluson (1 Dowl. n. s. 578) 242 a i: Wynne (3 Yerg. 62) 198 Wall, Ex parte (48 Cal. 279) 36 i>. McNeil (20 Ga. 239) 163 , People V. (88 111. 75) 92 V. State (23 Ind. 150) 147 V. State (18 Texas, 682) 177 Wallace v. Miner (6 Ohio, 366) 142 , People V. (70 111. 680) 36 a, 42 h , Reg. V. (2 Moody, 200) 204 Walley, Estate of (11 Neb. 260) 112, 154 Walls V. McGee (4 Barring. Del. 108) 103 V. State (7 Blackf. 572) 238 Walston V. Com'th (16 B. Monr. 15) 84 Walters, State v. (64 Ind. 226) 67 Walton V. State (62 Ala. 197) 200, 204 Walwin v. Smith (1 Salk. 177) 195 Wands, People v. (23 Mich. 385) 36 a Wankon-chaw-neek-kaw v. United States (Morris, 332) 255 Ward V. Greeneville (8 Baxter, 228) 19, 20 V. Severance (7 Cal. 126) 250 a V. Snell (1 H. Bl. 10) 195 a , State V. (6 N. H. 529) 168 Warden of St. Paul's v. The Dean (4 Price, 65) ^46 a Ware v. Greene (37 Ala. 494) 103 V. Hylton (3 Dall. 19a) 13 V. Owens (42 Ala. 212) 85a V. Regent's Canal (3 De G. & J. Ch. 212 ; 28 Law J. Ch. 153) 77 Warfield, In re (22 Cal. 51) 104, 104 a V. Fox (8 Smith Pa. 382) 131 V. Watkins (30 Barb. 395) 178 Waring v. Clarke (5 How. U. S. 441) 100 Warner v. Com'th (1 Barr, 154) 174, 193 V. Fowler (8 Md. 25) 193 , People V. (4 Barb. 314) 205 , V.S.v. (4 McLean, 463) 80, 82 Warren v. Charlestown (2 Gray, 84) 34 Warrington, Ex parte (3 DeG., M. & G. 159) 154 V. Furbor (8 East, 242) 196 Wartman v. Philadelphia (9 Casey, Pa 202) 28 Wash V. State (14 Sra. & M. 120) 216 Washburn v. Mclnroy (7 Johns. 134) 244 Washingham's Case (2 Plow. 565) 65 Wa.shington v. Franklin Railroad, (34Md. 159) ' 36 a V. Hammond (76 N. C. 33) 23 V. Page (4 Cal. 388) 86 a, 256 V. State (58 Ala. 355) 247 Washington Park, In re (52 N. Y. 131) 119, 250o Washington, &c. Turnpike i-. State (19 Md. 239) 164 Water Works v. Burkhart (41 Ind. 364J 154 Section Waterford & Whitehall Turnpike v. People (9 Barb. 161) Waterford, &c. Railway v, Logan (14 Q. B. 672) Waterhouse v. Keen (4 B. & C. 200; 6 D. & R. 257) Waters i: Campbell (4 Saw. 121) Watford, Reg. v. (9 Q. B. 626) Watkins i'. Haight (18 Johns. 138) V. Wassell (20 Ark. 410) Watson V. Blaylock (2 Mill, 351) V. Hall (46 Conn. 204) V. Mercer (8 Pet. 88) V. Pears (2 Camp. 294) , Rex V. (2 East P. C. 562) , Rex V. (2 East P. C. 680) V. State (55 Ala. 150) V. State (55 Ala. 158) Watts V. Com'th (5 Bush, 809) , Com'th V. (4 Leigh, 672) United States v. (1 Bond, 580) 164 38 243 57 75 84 249 149 190 rf, 231 85, 185 31 a, 107 220 2.33 248 36 a 110 c 211 195 Waupun V. Moore (34 Wis. 450) 20, 21 Waverly, The (7 Bis. 465) 119, 250a Wayne Circuit Judge, People v. (37 Mich. 287) 111 Wayman v. Naylor (2 Blackf. 32) 186 Wear v. Adamson (1 Q. B. D. 546; 2 Ap. Cas. 743) 189 a Weatherhead v. Bledsoe (2 Tenn. 352) 142 Weaver v. Lapslev (43 Ala. 224) 36 a V. Maillot (15 La.. An. 395) 163 Webb V. Baird (6 Ind. 13) 163 V. Fairmaner (3 M. &. W. 473) 107, 108, 110 a Webster v. French (12 III. 302) V. People (14 III. 365) V. Reid (Morris, 467) , U. S. V. (Daveis, D,C.38) Weed, State v. (1 Fost. N. H. 262) Weeks, State Treasurer v. (4 Vt. 215) Weir, State v. (33 Iowa, 134) Weise, U. S. v. (2 Wal. Jr. 72) Welch, Com'th v. (2 Dana, 330) , State V. (36 Conn. 215) V. Stowell (2 Doug. Mich. 382) V. Wadsworth (30 Conn. 149) Welker v. Potter (18 Ohio State, 85) Welland, Rex v. (Buss. & Ry. 494) Weller, Com'th u. (14 Bush, 218) , People V. (11 Cal. 49) V. Weyand (2 Grant, Pa. 103) 256 250 rf 14 49,82 142 36 103 177 20 22 177 366 247 36 255 187, 250 a 11a 135 154 Wells V. Buffalo (14 Hun, 438) , Rex V. (1 East P. C. 414) V. State (8 Lea, 70) V. Iggulden (3 B. & C. 186) 66 Welraan, In re (20 Vt. 653) 28, 29, 31 a, 108 Welsh, State v. (3 Hawks, 404) 45 Wendel v. Durbin (26 JVis. 390) 255, 256 West V. Pine (4 Wash. C. C. 691) 154 , Rex V. (Owen, 134) 167 351 WHI rCTDEX TO THE CASES CITED. vir. Seotion V. Dodge 85 31 36 a 204 180 West Branch Broom Co (7 Casey, Pa. 285) West Feliciana Railroad v. Johnson (5Kow. Missis. 273) West Philadelphia Passenger Rail- road V. Union Passenger Railroad (9 Philad. 495) West Riding of Yorkshire, Reg. v. (2Eng. L. &Eq. 296) , Reg. V. (1 Q. B. IX 220) , Rex V. (4 B. & Ad. 685) 107, 110 Westbrook Manuf. Co. v. Grant (60 Maine, 88) 29 Westoott V. Miller (42 Wis. 454) 97 Western Union Railroad u. Pulton (64111.271) 84 Weston, People v. (3 Neb. 812) 70, 82 , State V. (4 Neb. 216) 11 a , State K. (6 Neb. 16) 926 Westwood, Rex v. (2 Dow. & C. 21 ; 4 Bligh, N. s. 213; 7 Bing. 1; 4 B. & C. 781) Wetmore v. State (55 Ala. 198) V. Tracy (14 Wend. 250) Wetumpka v. Winter (29 Ala. 651) Wharton Peerage (12 CI. & F. 295) 242 a Wheaton v. Hibbard (20 Johns. 290) 163 Wheeler v. Chicago (24 111. 105) 112, 255 V. Chubbuek (16 111. 861) 31 V. Cincinnati (19 Ohio State, 19) 20 V. Goulding (13 Gray, 539) 250 rf V. Philadelphia (27 Smith, Pa. 338) • 42 o, 42 c V. Rice (4 Brews. 129) 35 a V. State (23 Ga. 9) 163 WheeUngi). Campbell (12 W. Va. 36) 103 a Whetstone, State v. (13 La. An. 376) 193 Whistler, Reg. v. (2 Salk. 542 ; 11 Mod. 25) 139, 189 6 I Whittaker v. Haynes (49 Cal. 596) 160, 163 , Reg. v. (3 Cox C. C. 50) Whitcomb v. Rood (20 Vt. 49) White V. Blum (4 Neb. 555) V. BV)ot (2 Tr. 274) 18 104 169 101 Com'th (4 Binn. 418) , Com'th V. (8 P^ck. 453) 145 97 82 149 204 164 107 V. Crutcher (1 Busli, 472) V. Johnson (23 Missis. 68) 82, 155, 163 , Reg. V. ( Dears. 203 ; 20 Eng. L. & Eq. 585) 171 I'. State (44 Ala. 409) 231 V. Steam-Tug Mary Ann (6 Cal. 120 103 81, 98 177 22 84 204, 214 245 212 402) , U. S. y. (2 Hill, N. T. 59) Whitehead v. Wells (29 Ark. 99) Whitehnrst v. State (43 Ind. 473) Whitfield V. Longest (6 Ire. 268) Whitman v. llapgood (10 Mass. 487) Whitmarsh, Com'th v. (4 Pick. 233) Whitnash, Reg. v. (7 B. & C.696) Whitney, Rex v. (1 Moody, 3) 362 Seotion^ Whitney v. Whitney (14 Mass. 88) £3 Whittaker, Reg. v. (2 Car. & K. 636 ; 1 Den. C. C. 809) 77, 135, 145 Whitworth, State v. (8 Port. 434) 159. 163, 168 Wigg, Reg. t). (2 Ld. Raym. 1168) 164, 169 Wiggin V. New York (9 Paige, 16) 255 Wigglesworth, U. S. v. (2 Story, 369) 193, 194, 195 Wiggot, Rex !;. (Comb. 205) 138 Wilbor, State v. (1 R. I. 199) 82, 163, 166, 167 Wilbraham v. Hampden (11 Pick. 322) 137 Wilbur V. Crane ( 13 Pick. 284) 131, 155 Wilcox, State v. (42 Conn. 364) 36 , State V. (3 Yerg. 278) 199 V. Wood (9 Wend. 346) 31a Wilde V. Com'th (2 Met. 408) 82, 163 Wilder v. Lumpkin (4 Ga. 208) 83 a V. Maine Central Railroad (65 Maine, 332) 84 o Wiley, Reg. t>. (1 Eng. L. & Eq. 567 ; 2 Den. C. C. 87) 204 I'. State (3 Coldw. 362) 248 V. Yale (1 Met. 563) 137 Wilkins, Com'th v. (lil Mass. 356) 19, 20 Wilkinson v. Gaston (9 Q. B. 137) 31 a V. Leland (2 Pet. 627) 40. 70, 77 , State V. (2 Vt. 480) 163, 164, 170 Willetts, United States r. (5 Ben. 220) 195 William Gray, The (1 Paine, 16) 132, 139 Williams v. Augusta (4 Ga. 509) 22 ». Cammack (27 Missis. 209) 36 V. Davidson (43 Texas, 1) 19, 20 V. Drewe (Willes, 392) 128 w. Evans (1 Ex. D. 277) 190e V. Lear (Law Rep. 7 Q. B. 285) 97 V. McDonal (4 Chand. 65) 102 V. Matthews (3 Cow. 252) 220 V. Middlesex (4 Met. 76) 177 V. Potter (2 Barb. 316) 135, 160, 163 V. Pritchard (4 T. R. 2) 113, 160, 190 d V. Reg. (10 Jur. 155) 167 V. Reg. (7 Q. B. 250; 1 Cox C. C. 179) 163, 166, 167 , Reg. V. (Car. & M. 259) 135 , Reg. V. (1 Den. C. C. 89) 138 , Reg. V. (14 Law. J. n. s. M. C. 164) 167 t'. Register, Cooke (Tenn. 214) 40 , Rex V. (1 Leach, 529) 231, 236 , Rex V. (1 Moody, 107) 211 , Rex f. (1 W. Bl. 93) 45 V. Uoughedge (2 Bur. 747) 186 V. State (48 Ind. 306) 36 a V. State (12 Sm. & M. 58) 216 , State V. (2 Rich. 418) 163, 166, 170, 185 , State «. (11 S. C. 288) 11 a, 18, 20, 21, 23, 24, 143 , State V. (2 Strob. 474) , 246 , State V. (8 Texas, 255) 67 V. Suffolk Ins. Co. (18 Pet. 416) 14 woo INDEX TO THE CASES CITED. YAR Section Williams v. Swansea Canal Nar. Co. (Law Kep. 3 Ex. 158) 255 a V. Tappan (3 Fost. N. H. 885) 254 , United States v. (5 McLean, 133) 103 , U; S. !.. (1 Paine, 261 ) 28, 29, 31 a Williamson v. Farrow (1 Bailey, 611) 105 V. Keokuk (44 Iowa, 88) 36 a Willington v. Stearns (1 Pick. 497) 216, 242 Willion V. Berkley (1 Plow. 223) 103 Willoughby, Rex v. (2 East P. C. 944) 204 Willsea, People v. (60 N. Y. 507) 36 a Wilmington, &c. Railroad, State (74 N. C. 143) Wilmot r. Rose (3 Ellis & B. 568) Wilson V. Biscoe (6 Eng. 44) V. Buokman (13 Minn. 441 V. Herbert (12 Vroom, 454 V. Knubley (7 East, 128) V. Red Wing School Dist. (22 Minn. 488) , Reg. (-•. (3 Q. B. D. 42) , State V. (Cheves, 163) , State V. (43 N. H. 415) 154, 156 , United States v. (Bald. 78) 97, 135, 142, 194, 200, 242 , United States v. (8 Wheat. 253) 103 V. Wall (34 Ala. 288) 14 Wiltberger, U. S. v. (5 Wheat. 76) 141, 193 Withers v. Denmead (22 Md. 135) 164 Witlierspoon v. Dunlap (1 McCord, 546) Witkouski v. Witkouski (16 La. An. 282) Window, Rex v. (3 Camp. 78) Winn V. Jackson (12 Wheat. 185) , United States w. (3 Sumner, 209) 209 Winooski v. Gokey (49 Vt. 282) 42 a, 42 b Winslow V. KimbaU (25 Maine, 493) 70, 83 a 49 82 85 177 a 49 83 a 14 246 137 126 35 5 82 100 82 243 Winter v. Perratt (6 Man. & G. 314) V. Jones (10 Ga. 190) Winterfield v. Stauss (24 Wis. 394) Wintermute, People v. (1 Dak. Ter. 63) Wise, Reg. v. (1 Cox C. C. 80) Wolcott V. Wigton (7 Ind. 44) Wolf w. Lowry (10 La. An. 272) Wolfarth, State v. (42 Conn. 155) Wolverhampton New Waterworks v. Hawkesford (6 C. B. n. s. 386) 250 a Wood's Case ( 1 Co. 40 a) 65 Wood V. Brown (6 Daly, 428) 112 V. Commonwealth (11 Bush, 220) V. Erie Railway (72 N. Y. 196) V. Fort (42 Ala. 641) V. Riley (Law. Rep. 3 C. P. 26) ■ V. Smith (23 Vt. 706) 141, 231 186 167 92 ,104 a 83 a 110 190 e 28 31 238 - V. Wood (Phillips, K. C. 538) 189 a Woodbury v. Berry (18 Ohio State, 456) 72, 93 Woodhead, Rex v. (1 Moody & R. 549) 211 Woodrow, Reg. v. (15 M. & W. 404) 132 28 Section Woodrow, Reg. v. (2 New Sess. Cas. 346) 1.32 Woodruff V. Gilchrist (15 Johns. 89) 49 V. Scruggs (27 Ark. 26) 177 a Woods's Appeal (25 Smith, Pa. 59) 92 Woodside, State v. (9 Ire. 496) 160 Woodward v. Hamersly (Skin. 313) 105 V. Sarsons (Law Rep. 10 C. P. 733) 255 V. State (5 Texas, Ap. 296) 58 , State V. (84 Maine, 293) 163 , State V. (25 Vt. 616) 244 Woodworth v. Paine (Breese, 294) 246 ii V. State (26 Ohio State, 196) 246 Wooldridge, Eex v. (1 Leach, 307) 101 Woolsey v. Cade (54 Ala. 378) 97 Wooten V. Miller (7 Sm. & M. 380) 141 Worcester, Commonwealth v. (3 Pick. 462) 20, 22, 26, 168 Worden, State v. (46 Conn. 349) 164 Wormingall, Rex v. (6 M. & S. 350) 106 Worrell v. State (12 Ala. 732) 215 Worthen v. Badgett (32 Ark. 496) 36 a, 37 Wragg V. State (14 Ala. 492) 231 Wright V. Boston (9 Cush. 233) 20 , Commonwealth v. (1 Cush. 46) 78 V. Defrees (8 Ind. 298) 38 V. Freeman (5 Har. & J. 467) 163 V. Hale (6 H. & N. 227) 84 V. Marsh (2 Greene, Iowa, 94) 164 - V. Pearson ( Law Rep. 4 Q. B. 582) 246 ._ _ ^^g 108 250,250 c 209 163 255 139, 174 4:2 d 138 246 138 255 237 Reg. V. (9 Car. & P. 754) , Rex V. (1 A. & E. 434) , Rex V. (1 Bur. 543) , Rex V. (7 Car. & P. 159) V. Smith (13 Barb. 414) V. Sperry (21 Wis. 331) , State V. (4 MeCord, 358) V. Ware (50 Ala. 549) Wyat, Reg. w. (1 Salk. 380) Wyatt, Com'th v. (6 Rand. 694) , Reg. V. (2 Ld. Raym. 1189) , Rex V. (Russ. & Ry. 230) Wyckoff V. Boggs (2 Halst. 188) Wycombe Railway, Reg. v. (Law Rep. 2 Q.B.310) Wyer, Rex v. (1 Leach, 480 ; 2 East P. C. 753; 2T. R. 77) 139,204 Wyman v. Campbell (6 Port. 219) 154 , Commonwealth v. (8 Met. 247) 246 Wyndham, Rex v. (Russ. & Ry. 197) Wynn v. Da vies (1 Curt. Ec. 69) , Reg. V. (1 Den. C. C. 365; 1 Temp. & M. 32 ; 13 Jur. 107 ; 18 Law J.N.s. M. C. 51) Wynne, In re (Chase Dec. 227) 77 126 160 163 29 Yancey v. Hankins (Minor, 171) 193 Yandell, Rex w. (4 T. R. 521) 242 a Yarbrough, State v. (1 Hawks, 78) 164 Yarmouth v. North Yarmouth (34 Maine, 411) 34,177 a V. Simmons (10 Ch. D. 518) 65, 189c 353 YOU INDEX TO THE CASES CITED. ZTL Sectiox Yates V. Milwaukee (10 "Wal. 497) 19, 21 Yeager, Exparte (11 Grat. 655) 112 Yeaker v. Yeaker (4 Met. Ky. 33) • 32 Yearby, State v. (82 N. C. 561) 210 Yeaton ». U. S. (5 Cranch, 281) 177 Yellow Eiver Imp. Co. v. Arnold (46 Wis. 214) 426 York V. Middleburgh (2 Y. & J. 196) 189 d, 190 ^,Reg. «. (14Q.B.81) 103 , Rex w. (1 A. & E. 828) 195 a , Eex V. (3 B. & Ad. 770) 22 ^.Deanof, Inre(2Q. B. 1) 77 York, &o. Railway v. Reg. (1 Ellis & B. 858) 112 Youmans, State v. (6 Ind. 280) 163, 178 Young w. Higgon (6 M. & W. 49) 108, 110 364 Young V. Ledrick (14 Kan. 92) V. McKenzie (3 KeUy, 31) V. Shaw (1 D. Chip. 224) V. State (58 Ala. 358) , State V. (47 Ind. 150) State V. (17 Kan. 414) SEOTIOlf 85 a 155 164 190 e 36 a 154, 168 29 , State V. (3 Vroom, 29) Young Men's, &c. Soc, People v. (41 Mich. 67) 36 a Zachary v. Chambers (1 Oregon, 321) Zantzinger v. Ribble (36 Md. 32) Zouch V. Empsey (4 B. & Aid. 522) V. Moor (2 Rol. 274) Zylstra v. Charleston (1 Bay, 382) 126 255 110 68 22 University Press, Cambridge: John Wilson Sc Son.