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important than the intentions of the legislature. The sense and spirit of the statute will always prevail over the strict and grammatical construction of its words. If the terms of a statute are ambiguous, it becomes the duty of the court to give such construction to it as may fairly be said to be in accordance with the intentions of the legislature.

On a literal construction of his promise, Mohammed II's sawing the governor's body in two was no breach of his engagement to save his head; nor did Tammerlane's burying alive the garrison violate his pledge to shed no blood. So the Earl of Argyle fulfilled in the same spirit his promise to the Laird of Glenstane, that if he would surrender he would see him safe to England, for he hanged him after safely taking him across the Tweed to English banks.

Lord St. Leonard is on record as saying, "Nothing is so difficult as to construct properly an act of

Parliament, and nothing so easy as to pull it to

pieces."

Chief Justice Pollock said: "There is no important word in the English language which does not admit of various interpretations."

Lord Coke classifies the rules interpreting an ambiguous statute under four heads:

First. What was the law before the act was passed?

Second. What was the mischief or defect for which the law had not provided?

order to make the validity of the act depend upon the intention resulting from such inquiries. (113 U. S. 27; Id. 703; 36 N. Y. 285.)

On the other hand, the legislative journals are permitted to be used, not, however, as evidence of the meaning of a statute, for this must be determined from the language of the act itself, and the facts connected with the subject on which it is to operate. Yet, in a case where a statute, the construction of which was requested, was so worded as to be apparently contradictory in some of its provisions, the Supreme Court of the United States interpreted the same by reference to the journals of Congress from which it appeared that the particular phraseology was the result of an amendment without due reference to the wording of the original bill. (23 Wall. 307-321.)

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Under the head of "External Circumstances,' usage has been taken into consideration in constru

ing a statute. Long usage may determine the

meaning of the language where one of two ambiguous constructions has been adopted.

It is another elementary rule of construction that all parts of a statute which relate to the same subject matter must be construed together; that the plain or palpable parts must interpret the ambiguous ones. If one section of an act, for instance, required that notice should be given, standing alone, a verbal notice would probably be sufficient, but in a subsequent section it provided that such notice

Third.-What remedy the legislature had ap- should be served on a person or left at his usual pointed.

Fourth. The reason of the remedy.

Surrounding facts and circumstances, with certain restrictions, are allowed to place the interpreters in the position of those whose words are interpreted. Hence, evidence of such intrinsic circumstances may become admissible to show the intent of the legis lature. (7 Barb. N. Y. 416.)

To carry out the second rule of Coke, and in order to understand the scope and object of the enactment, the interpreter must ascertain what was the mischief or defect for which the law had not provided. That is, he must call to his aid all those external or

historical facts which led to the enactment. He must refer to the history of the time to ascertain the reasons for and the meanings of the provisions of the statute. He may even look to the state of public opinion, or judicial and legislative opinions on the particular subjects at, and prior to, the time of the enactment. But this rule has never gone so far as to allow a court to take the testimony of the views of the individual members of the legislature in debate to ascertain the meaning of the statute by them. Neither can the motives of legislators in supporting an act be inquired into by the court in

place of residence, which would obviously show that a written notice was intended in the first sec

tion. It is a legitimate rule of construction, from the context in surveying the whole act, to allow one portion to restrict the generality of certain of its provisions. So it may expand the narrowness of others if the real intention of the legislature may be gathered from broader expressions in other parts of the statute.

The examination of the context is allowable to correct omissions and errors if the omission or error is explained in a subsequent section, thereby supplying the omission. The context is to be consulted to avoid inconsistencies; and under this rule it is the duty of the interpreter to give effect to every word, clause and provision of the enactment. Hence, the most important purpose of examining all the parts of a statute together, and with reference to one another, is that of giving, by the means of such comparison, a sensible and intelligent effect to each, without permitting any one to nullify any other, and to harmonize every detailed provision of the statute, with the general purpose or design which the whole is intended to subserve.

With this end in view, the rule extends to all amendments which, for this purpose, are regarded

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as constituting but one enactment. (Here refer to aid, but does not control, unless other means fail; the legislation on water works.)

This same rule applies as to acts, and their supplements, and still more, to codes and revisions. Various sections referring to the same subjects, if practicable, should be construed together as one, or as one act or chapter, or as continuous sections of the same act. And one chapter is to be read with another relating to the same subject, as one body of law, though collected from independent laws on previous enactments, where all have been re-enacted by revisory acts.

On this same principle, and under this head, are constructions by context; earlier acts relating to the same subject-matter have been examined by the court in reference to the limiting power of certain words, enlarging, restraining or qualifying terms, so as to effectuate the previous intentions of the law. A by-law which authorized any person to be Chamberlain of the City of London would be construed so as to harmonize and not to conflict with an earlier act or general statute which limited the appointment to a person possessed of certain qualifications. And the court held that " 'any person would be understood to mean only an eligible person. So the various statutes of New York and Ohio relating to, and enlarging the powers of married women, though passed in different years, were held to be construed as one act. (62 Barb. N. Y. 531.)

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Where an act conferring jurisdiction of a certain offense upon a police court, provided that the fine to be imposed should not exceed one thousand dollars, nor the imprisonment be more than one year, it was held that, on comparison with other statutes in pari materia, this provision was a limit upon the punishment by either fine or imprisonment, but did not intend to authorize the imposition of both for the same offense. (15 Barb. N. Y. 627.)

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So an act enlarging the jurisdiction of justices of peace, and prescribing no forms of proceedure, must be construed together with earlier acts upon the same subject and as adopting the forms of practice prescribed by them. (105 Pa. St. 610.)

Where a part of an act has been repealed it must, although of no operative force, still be taken into consideration in construing the rest, provided it tends to elucidate an ambiguous word or passage.

Some courts have laid down the rule that punctuations by the legislature may be practically ignored, and that punctuation is no part of a statute. And further, that there is no punctuation in it which ought to control the interpretation. (105 U. S. 77; 65 Pa. S. 311; 17 Wall. 496–502.)

The Supreme Court of Ohio in the case of Albright v. Payne, 43 Ohio St. 8, lays down the broad rule in construing a statute, that punctuation may

and in rendering the meaning of a statute punctuation may be changed or disregarded. Judge Follett adds in his opinion, that ancient inscriptions and writings show that words were grouped together without break or punctuation mark, the location and form of the word being the only indication of the meaning. The use of spaces and marks was adopted very slowly, but mostly since the beginning of the 16th century. In the English case of Barrow v. Wadkin, it was said that "It seems that in the rolls of Parliament the words are never punctuated, and that punctuation was not allowed to throw light on printed statutes in England."

In Cushing v. Workick, 9 Gray, 382, it was held that "Punctuation is not to be regarded in construing a statute."

Punctuation has not arrived at perfection anywhere. In the Ewing case, 11 Pet. 41, the court held, "Punctuation is a most fallable standard by which to interpret a writing. It may be resorted to when all other means fail, but the court will first take the instrument by its four corners in order to ascertain its true meaning. If that is apparent on judicially inspecting it, punctuation will not be subject to changes. In the Pancoast case, 1 Ohio, 385, the court in speaking of a construction claimed by a party, say: This construction is founded upon a mere grammatical criticism which is never received to change or control the intention of the legislature, where that intention is otherwise freely expressed. Something may depend upon punctuation in the statute books, which may be incorrect, and ought never to vary the true sense."

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And in that case they disregarded and left out a

comma.

Judge Day, in the Hamilton case, 15 Ohio St. 428, says: "Courts will, however, in the construction of statutes for the purpose of arriving at the real meaning and intention of the law makers, disregard the punctuation, or re-punctuate if need be, to render the true meaning of the statute."

Judge Okey made the same observation in the 31 Ohio St. 337; 223 Ohio St. 140.

Much learning has been expended in English courts, as well as in the State courts, as to what effect a title to a statute may have in construing an ambiguous statute. Lord Coke insisted that the title to a statute was not only no part of the statute, but should be excluded from consideration in construing the statute. Lord Cottonham said the title should not be resorted to in construing an enactment. This rule has been very much changed and modified by our judges in this country, both State and federal. While the title is not regarded as part of the act, it is, nevertheless, regarded as a legitimate aid in ascertaining the intentions of the legis

lature, when the language and provisions in the body of the act are ambiguous, and of doubtful meaning and application. (3 Wheaton, 610; 19 Fed. Rep. 304.)

In the Briggs case, 9 Howard, 351, the court say: "Where the words of the enacting clause of the statute, even a penal statute, are more general than the title, the enacting clause governs." A large number of State cases hold that the title of a statute, or preamble, cannot control the enacting part of the law when the meaning of the act is clear, but when the language is ambiguous and may admit a larger or more restricted interpretation, the preamble may be referred to to determine which sense was intended by the Legislature. But the title and preamble of a statute are not to be referred to as explanatory of it unless the statute itself cannot be clearly interpreted from its own language; or, in other words, unless it is ambiguous. It may then be considered that the converse proposition is true, and it may become an important guide in certain ambiguities, and aid, if need be, in its construction. It was held in a California case, "A very important guide to its right construction." (15 Cal. 624.)

There are numerous other rules and presumptions in construing statutes, but the limited space and time offered me will not permit further adverting to them; such as the presumption against the unreasonableness of an act; presumption against injustice; presumption against absurdities; presumption against the statute impairing contracts. Then there is a presumption against retrospective operations; presumption against their affecting vested rights prejudicially. To these I might add usage, and contemporaneous construction, as being a presumption.

In closing this paper, I think the resume given by Endlic is so comprehensive that it cannot be improved upon.

"In a word, then, it is to be taken as the fundamental principle, standing, as it were, at the threshold of the whole subject of interpretation, that the intention of the Legislature is invariably to be accepted and carried into effect, whatever may be the opinion of the judicial interpreter, or of its wisdom and justice. If the language, read in the order of its clauses, presents no ambiguity, and admits of no doubt or secondary meaning, it is simply to be obeyed without more; for the intention, controlling though it be, can be resorted to only to ascertain what the Legislature intended to do, not what it has done. If it admits of more than one construction, the true meaning is to be sought, first of all, in the statute as applied to the subject matter to which it relates, not to the wide sea of surmise and speculation; but from such/conjectures as

are drawn from the words alone, or something contained in them, that is, from the context viewed by such lights as its history may throw upon it, and construed by the help of certain general principles, and under the influence of certain presumptions as to what the Legislature does, or does not, generally intend."

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CODE REVISION.

LETTER OF THE COMMISSION TO THE BAR. Pursuant to the provisions of chapter 1036 of the Laws of 1895, the undersigned have been appointed by the governor to "examine the Code of Procedure of this State, and the Codes of Procedure and practice acts in force in other States and countries; and the rules of court adopted in connection therewith, and report thereon to the next Legislature in what respects the civil procedure in the courts of this State can be revised, condensed and simplified."

This appointment involves a possible revision of the Code of Civil Procedure of this State, and also a revision of the practice in all the courts, whether the rules governing such practice are included in the Code of Civil Procedure, or in general and independent statutes. But, before engaging in a general revision of the Code, we deem it important to obtain an expression of opinion from the bar of the State upon the general question of revision; whether such a general revision is desirable at this time, and if so, upon what lines it should be made; and if such a revision is not deemed desirable, then what particular changes should be made in the detail or scheme of the Code, in order to make it more practical and less complex in its provisions.

An examination of this subject involves an inquiry whether everything relating even remotely to practice should be included in the Code of Civil Procedure, or whether the Code should include only those matters which deal directly with procedure in actions, leaving to other and independent statutes subjects like the organization of courts, the functions and fees of various officers of the court, and matters of substantive law. If the Code is to include all matters relating to practice either in actions or special proceedings, then, even with its thirty-four hundred sections, it is incomplete, and several subjects now included in other statutes should be added to the Code. If, on the other hand, the Code of Civil Procedure should be limited strictly to questions relating to practice in actions from their commencement until their final determination, without regard to various subordinate and subsidiary matters that arise in the progress of an action, then some subjects that are now in the Code should be eliminated therefrom, in the interest of simplicity, and embraced in other statutes.

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vision, and if so, upon what particular lines. Any suggestion that you may make upon this subject will be appreciated by the commission. CHARLES Z. LINCOLN,

Little Valley.

WILLIAM H. JOHNSON,

Oneonta.

A. JUDD NORTHRUP,

Syracuse. Commissioners of Code Revision.

Abstracts of Recent Decisions.

It has been suggested that the practice in Justices' Courts and in Surrogates' Courts does not properly belong in the Code of Civil Procedure; also, that the detailed rules of evidence in our present Code more properly belong elsewhere; that the various provisions of a local character should be taken from the Code and included in the charters of the municipal corporations to which they relate; that the subject of the organization and jurisdiction of the various courts, and the election and appointment of various officers of the courts, is no part of a proper system of procedure. It has also been suggested that the code of practice should be confined to the rules regulating proceedings in actions generally in Courts of Record, and that actions of a special character, and special proceedings, should be treated in an independent code. If these suggestions should be adopted, it would involve the separation of several subjects and sec-parties for the purpose of the accounting but no detions from the present Code, and their incorporation in other statutes, but it need not necessarily involve a revision or change in the phraseology of various sections; it would require a re-arrangement of the law, without changing its language. We are not unmindful of the uncertainty, if not positive mischief, produced by frequent changes in the phraseology of a statute, especially where it has received judicial construction; and the language of a statute which has become familiar to the practitioner should be retained, unless a change will tend

to make the law more clear.

In connection with our work as Commissioners
of Statutory Revision, we have found numerous
instances of omission either in the general statutes,
or in the Code of Civil Procedure, and several
subjects of general or minor importance are in-
cluded in other statutes which, possibly, ought to
be incorporated in the Code; and in formulating
plans for the general revision of the statutes, in
connection with possible code revision, it seems to
us that the subject should be considered as a whole,

and that Code revision should be considered in con-
nection with its bearing upon general statutory re-
vision, and vice versa. Our statute law is now too
fragmentary, and we think an attempt should be
made to produce a harmonious system upon lines
which may be considered feasible and practicable,
but we are unwilling to engage in a general revision
of the Code, without first attempting to ascertain
the opinion of the bar upon the subject. The de-
termination of this question of a revision of the
Code will have an important bearing upon our work
of general statutory revision.

ACCOUNTING ON OFFICIAL BOND.-Where a court of equity has jurisdiction of a bill for account against the principal on a bond or his representatives the sureties on the bond can properly be made

cree for payment can be made against them. (Mayor, etc., of Borough of Rutherford v. Alyed [N. J.], 32 Atl. Rep. 70.)

ADVERSE POSSESSION

PRESCRIPTION. One in

possession of lands under a pre-emption entry and patent from the United States is not charged with notice that the lands were swamp lands twenty years prior to the patent, and, as such, had passed under a prior act of Congress granting swamp lands to the State, nor with notice that the land was within the territorial limits of a town, where neither of these facts nor the date of entry appears on the face of the receiver's receipt or patent; and, therefore, such patent is a "just title," and sufficient to sustain a plea of prescription, under Code La. arts. 3481-3484. (Texas & P. Ry. Co. v. Smith [U. S. S. C.], 15 S. C. Rep. 994.)

CARRIERS OF PASSENGERS-EXPULSION OF PASSENGER-DAMAGES.-The extent of the injury of a passenger who has been wrongfully expelled from a railroad train, and the amount of damages recover

able, do not depend at all upon the intentions or good faith of the conductor in executing a rule of the company, but only upon what was done and the consequent injury. (Pittsburgh, C., C. & St. L. Ry. Co. v. Russ [U. S. C. C. of App.], 67 Fed. Rep. 662.) CONTRACTS-CERTIFICATE OF ENGINEER.—A provision in a construction contract that the engineer or architect of the owner shall finally determine, as between the contractor and owner, what work has been done, and the amount to be paid for it, is valid, and should be enforced, in the absence of fraud or palpable mistake. (Mundy v. Louisville & N. R. Co. [U. S. C. C. of App.], 67 Fed. Rep. 633.)

-

STOCK
CORPORATE

ASSESS

Please kindly inform us, upon the enclosed blank, CORPORATION whether or not you are in favor of a general revision of the Code, and if you are not in favor of a gene- A subscription for capital stock of a corral revision, whether you are in favor of some re-poration cannot be cancelled except for fraud or

MENT.

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DEED ABSOLUTE

collection and distribution of the assets of an insolvent corporation, to hear and determine an ancillary suit instituted in the same cause by its receiver, in accordance with its order, against debtors of such corporation, so far as in said suit the receiver claims the right to recover from any one debtor a sum not exceeding $2,000. (White v. Ewing, U. S. S. C., 15 S. C. Rep. 1018.)

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MORTGAGE.- Defendant held a second mortgage on plaintiff's land. On default on the first mortgage, both mortgagees threatened to foreclose, whereupon plaintiffs conveyed the land absolutely to defendaut, who took possession, and leased part of the premises for a small rental to FEDERAL COURTS- FOLLOWING STATE DECISIONS. plaintiffs, and assumed the payment of the first - Where State statutes, affecting the title to large mortgage, and each of the parties executed to the tracts of land, have been construed by the State Suother a release of all claims. Held, that the evi- preme Court, and the title so established has been dence was not sufficient to show the deed a mort- reaffirmed by the United States Supreme Court, gage. (Ahern v. McCarthy [Cal.], 40 Pac. Rep. 482.) | which decisions have remained unchallenged for DEED GENERAL WARRANTY."— The general many years, comity does not compel a federal "warranty" clause in a conveyance is equivalent to court, when the title is again called in question, to follow a later decision of the State courts adverse the several special covenants in use under the common law, and is sufficient to compel the grantor, before receiving the full amount of the purchase money, to discharge all liens on the property. (Smith v. Jones [Ky], 31 S. W. Rep. 475.) DEED RIGHT OF WAY. A condition in a deed of a right of way for erection of a station, the character of which is not specified, is complied with by erection of a board shed, without the placing of an agent there, it being in structure and management like most of the stations on the road. (Caldwell v. East Broad Top Railroad & Coal Co. [Penn.], 32 Atl. Rep. 85.)

EQUITY REFORMATION OF INSTRUMENT.- - Plaintiff made a certain payment to defendant bank, and received in exchange a note signed by a firm composed of the officers of the bank, and the business of which was transacted in the bank's office. He subsequently gave a check to his wife, which was also exchanged at the bank office for a similar note. Plaintiff and his wife could both read and write, and had transacted considerable business with banks. Plaintiff retained the notes for two years, and, upon failure of the firm, began suit to reform the notes and change them into certificates of deposits of the bank, on the ground that he intended to deposit his money with the bank: Held, that plaintiff was not cntitled to a decree. (Murphy v. First Nat. Bank of Cedar Falls [Iowa], 63 N. W. Rep. 702.)

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INCOME OF TRUST FUND.

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EXECUTION Where a fund is given to executors, to keep invested and pay over the interest to a legatee during his life, a trust is created, and the income of such fund cannot be reached by a judgment creditor of the legatee in satisfaction of his judgment, by supplementary proceedings under the act respecting executions. (Linn v. Davis [N. J.], 32 Atl. Rep. 129.)

FEDERAL COURTS - CIRCUIT COURT-JURISDICTION. -The Circuit Court has jurisdiction in a general creditors' suit properly pending therein, for the

to the title established by the earlier decisions. (Wilson v. Ward Lumber Co. [U. S. C. C. Mo.], 67 Fed. Rep. 675.)

FEDERAL COURTS JURISDICTION

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CITIZENSHIP.

- An allegation that the citizenship of a party or parties is unknown is insufficient to sustain the jurisdiction of the federal courts, as the requisite citizenship must distinctly appear. (Tug River Coal & Salt Co. v. Brigel [U. S. C. C. of App.], 67 Fed. Rep. 625.)

FRAUDS, STATUTE OF-AGREEMENT RELATING TO LAND. - Where the owner of the lot and the street number appears on the agreement, the omission of the name of the city or town in which the lot is located does not render the description indefinite. (Price v. McKay, N. J.. 32 Atl. Rep. 130.)

HUSBAND AND WIFE-CONVEYANCE-VALIDITY.In an action to set aside a conveyance made by a husband as in fraud of his deceased wife's interest in community property, evidence showing what property the husband and wife respectively had at the time of their marriage, and what property they afterwards acquired, is admissible. Declarations by the husband after his wife's death as to what was community property, and his statements claiming as his other property belonging to his wife or the community, are also admissible to show fraud in connection with the community property in controversy. (Smitheal v. Smith, Tex., 31 S. W. Rep. 422.)

INSURANCE - PROOF OF Loss-WAIVER.-Where an insurance company demands, as part of the proofs of loss, an inventory destroyed in the fire, and which it was not entitled to under the policy, the alternative given the assured being that, if it was not furnished, only a compromise would be entertained, it waives formal proof of loss. (Phoenix Ins. Co. v. Center, Tex.. 31 S. W. Rep. 446.)

MALICIOUS PROSECUTION-PROBABLE CAUSE.-In an action for malicious prosecution. it is for the

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