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important than the intentions of the legislature. order to make the validity of the act depend upon The sepse and spirit of the statute will always pre- the intention resulting from such inquiries. (113 U. vail over the strict and grammatical construction of S. 27; Id. 703; 36 N. Y. 285.) its words. If the terms of a statute are ambiguous, On the other hand, the legislative journals are it becomes the duty of the court to give such con

permitted to be used, not, however, as evidence of struction to it as may fairly be said to be in accord- the meaning of a statute, for this must be determined ance with the intentions of the legislature.

from the language of the act itself, and the facts On a literal construction of his promise, Moham- connected with the subject on which it is to operate. med II's sawing the governor's body in two was no

Yet, in a case where a statute, the construction of breach of his engagement to save his head ; nor did

which was requested, was so worded as to be apTammerlane's burying alive the garrison violate his parently contradictory in some of its provisions, the pledge to shed no blood. So the Earl of Argyle Supreme Court of the United States interpreted the fulfilled in the same spirit his promise to the Laird

same by reference to the journals of Congress from of Glenstane, that if he would surrender he would

which it appeared that the particular phraseology sce him safe to England, for he hanged him after

was the result of an amendment without due refersafely taking him across the Tweed to English

ence to the wording of the original bill. (23 Wall. banks.

307-321.) Lord St. Leonard is on record as saying, “Noth

Under the head of “External Circumstances," ing is so difficult as to construct properly an act of

usage has been taken into consideration in construParliament, and nothing so easy as to pull it to ing a statute. Long usage may determine the pieces."

meaning of the language where one of two ambiguChief Justice Pollock said: There is no import

ous constructions has been adopted. ant word in the English language which does not

It is another elementary rule of construction that admit of various interpretations."

all parts of a statute which relate to the same subLord Coke classifies the rules interpreting an am

ject matter must be construed together; that the biguous statute under four heads:

plain or palpable parts must interpret the ambiguous First. - What was the law before the act was

If one section of an act, for instance, repassed?

quired that notice should be given, standing alone, Second.- What was the mischief or defect for a verbal notice would probably be sufficient, but in which the law had not provided ?

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.

place of residence, which would obviously show Fourth.—The reason of the remedy.

that a written notice was intended in the first sec

tion. Surrounding facts and circumstances, with certain

It is a legitimate rule of construction, from restrictions, are allowed to place the interpreters in

the context in surveying the whole act, to allow one the position of those whose words are interpreted. portion to restrict the generality of certain of its Hence, evidence of such intrinsic circumstances may

provisions. So it may expand the narrowness of become admissible to show the intent of the legis others if the real intention of the legislature may be lature. (7 Barb. N. Y. 416.)

gathered from broader expressions in other parts of

the statute. To carry out the second rule of Coke, and in order to understand the scope and object of the enactment,

The examination of the context is allowable to

correct omissions and errors if the omission or the interpreter must ascertain what was the mischief or defect for which the law bad not provided.

error is explained in a subsequent section, thereby That is, he must call to his aid all those external or

The context is to be consupplying the omission.

sulted to avoid inconsistencies; and under this rule historical facts which led to the enactment. He

it is the duty of the interpreter to give effect to must refer to the history of the time to ascertain the

every word, clause and provision of the enactment. reasons for and the meanings of the provisions of Hence, the most important purpose of examining the statute. He may even look to the state of pub- all the parts of a statute together, and with referlic opinion, or judicial and legislative opinions on ence to one another, is that of giving, by the means the particular subjects at, and prior to, the time of of such comparison, a sensible and intelligent the enactment. But this rule has never gone so far | effect to each, without permitting any one to as to allow a court to take the testimony of the nullify any other, and to harmonize every detailed views of the individual members of the legislature provision of the statute, with the general purpose in debate to ascertain the meaning of the statute by or design which the whole is intended to subserve. them. Neither can the motives of legislators in With this end in view, the rule extends to all supporting an act be inquired into by the court in I amendments which, for this purpose, are regarded


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

and in rendering the meaning of a statute punctuaThis same rule applies as to acts, and their sup- tion may be changed or disregarded. Judge Folplements, and still more, to codes and revisions. lett adds in his opinion, that ancient inscriptions Various sections referring to the same subjects, if | and writings show that words were grouped together practicable, should be construed together as one, or without break or punctuation mark, the location as one act or chapter, or as continuous sections of land form of the word being the only indication of the same act. And one chapter is to be read with the meaning. The use of spaces and marks was another relating to the same subject, as one body of adopted very slowly, but mostly since the beginning law, though collected from independent laws on of the 16th century. In the English case of Barrow previous enactments, where all have been re-enacted

v. Wadkin, it was said that “It seems that in the by revisory acts.

rolls of Parliament the words are never punctuated, On this same principle, and under this head, are

and that punctuation was not allowed to throw light constructions by context; car acts relating the

on printed statutes in England." same subject-matter have been examined by the

In Cushing v. Workick, 9 Gray, 3382, it was held court in reference to the limiting power of certain

that Punctuation is not to be regarded in construwords, cularging, restraining or qualifying terms, ing a statute." so as to effectuate the previous intentions of the

Punctuation has not vrrived at perfection anylaw. A by-law which authorized any person to be

where. In the Ewing case, 11 Pet. 11, the court Chamberlain of the City of London would be con

held, “Punctuation is a most fallable standard by strued so as to harmonize and not to conflict with

which to interpret a writing. It may be resorted to an earlier act or general statute which limited the

when all other means fail, but the court will first ppointment to a person possessed of certain qualifi- take the instrument by its four corners in order to cations. And the court held that any person

ascertain its true meaning. If that is apparent on would be understood to mean only an eligible per judicially inspecting it, punctuation will not be sub

So the various statutes of New York and ject to changes. In the Pancoast case, 1 Ohio, 385, Ohio relating to, and enlarging the powers of mar the court in speaking of a construction claimed by ried women, though passed in different years, were a part.y, say: “This construction is founded upon a held to be construed as one act. (62 Barb. N. Y.

mere grammatical criticism which is never received 531.)

to change or control the intention of the legislature, Where an act conferring jurisdiction of a certain where that intention is otherwise freely expressed. offense upon a police court, provided that the fine Something may depend upon punctuation in the to be imposed should not exceed one thousand dol- statute books, which may be incorrect, and ought lars, nor the imprisonment be more than one year, never to vary the true sense." it was held that, on comparison with other statutes And in that case they disregarded and left out a in puri materiu, this provision was a limit upon the punishment by either fine or imprisonment, but did

Judge Day, in the Hamilton case. 1.5 Ohio St. uot intend to authorize the imposition of both for 128, says: “ Courts will, however, in the constructhe same offense. (15 Barb. N. Y. 627.)

tion of statutes for the purpose of arriving at the So an act enlarging the jurisdiction of justices of real meaning and intention of the law makers, clisthe peace, and prescribing no forms of proceedure, regard the punctuation, or re-punctuate if need be, must be construed together with earlier acts upon to render the true meaning of the statute." the same subject and as 'adopting the forms of prac Judge Okey made the same observation in the 31 tice prescribed by them. (105 Pa. St. 610.)

Obio St. 337; 223 Ohio St. 140. Where a part of an act has been repealed it must, Much learning has been expended in English although of no operative force, still be taken into courts, as well as in the State courts, as to what efconsideration in construing the rest, provided it feet a title to a statute may have in construing an tends to elucidate an ambiguous word or passage. ambiguous statute. Lord (oke insisted that the

Some courts have laid down the rule that punctua- title to a statute was not only no part of the statute, tions by the legislature may be practically ignored, but should be excluded from consideration in conand that punctuation is no part of a statute. And struing the statute. Lord Cottonham said the title further, that there is no punctuation in it which should not be resorted to in construing an enactought to control the interpretation. (105 l'. S. ñï; ment. This rule has been very much changed and 65 Pa. S. 311; 17 Wall. 496--502.)

modified by our judges in this country, both State The Supreme Court of Ohio in the case of 11- and federal. While the title is not regarded as part bright v. Payne, 43 Ohio St. 8, lays down the broad of the act, it is, nevertheless, regarded as a legitirule in construing a statute, that punctuation may | mate aid in ascertaining the intentions of the legis



lature, when the language and provisions in the are drawn from the words alone, or something conbody of the act are ambiguous, and of doubtful tained in them, that is, from the context viewed by meaning and application. (3 Wheaton, 610; 19 Fed. such lights as its history may throw upon it, and Rep. 304.)

construed by the help of certain general principles, In the Briggs case, 9 Howard, 351, the court say:

and under the influence of certain presumptions as “Where the words of the enacting clause of the to what the Legislature does, or does not, generally statute, even a penal statute, are more general than intend." the title, the enacting clause governs.” A large number of State cases hold that the title of a

CODE REVISION. statute, or preamble, cannot control the enacting part of the law when the meaning of the act is

LETTER OF THE COMMISSION TO THE BAR. clear, but when the language is ambiguous and may Pursuant to the provisions of chapter 1036 of the admit a larger or more restricted interpretation, Laws of 1895, the undersigned have been appointed the preamble may be referred to to determine which | by the governor to examine the Code of Procedsense was intended by the Legislature. But the ure of this State, and the Codes of Procedure and title and preamble of a statute are not to be re-practice acts in force in other States and countries; ferred to as explanatory of it unless the statute and the rules of court adopted in connection thereitself cannot be clearly interpreted from its own with, and report thereon to the next Legislature in language; or, in other words, unless it is ambigu- what respects the civil procedure in the courts of

It may then be considered that the converse this State can be revised, condensed and simplified.” proposition is true, and it may become an impor This appointment involves a possible revision of tant guide in certain ambiguities, and aid, if need the Code of Civil Procedure of this State, and also be, in its construction. It was held in a California a revision of the practice in all the courts, whether case, “A very important guide to its right con the rules governing such practice are included in struction.” (15 Cal. 624.)

the Code of Civil Procedure, or in general and inThere are numerous other rules and presumptions dependent statutes. But, before engaging in a genin construing statutes, but the limited space and eral revision of the Code, we deem it important to time offered me will not permit further adverting obtain an expression of opinion from the bar of the to them; such as the presumption against the un State upon the general question of revision; whether reasonableness of an act; presumption against in such a general revision is desirable at this time, and justice; presumption against absurdities; presump- if so, upon what lines it should be made; and if tion against the statute impairing contracts. Then such a revision is not deemed desirable, then what there is a presumption against retrospective opera particular changes should be made in the detail or tions; presumption against their affecting vested scheme of the Code, in order to make it more pracrights prejudicially. To these I might add | tical and less complex in its provisions. usage, and contemporaneous construction, as being An examination of this subject involves an ina presumption.

quiry whether everything relating even remotely to In closing this paper, I think the resume given practice should be included in the Code of Civil by Endlic is so comprehensive that it cannot be im- Procedure, or whether the Code should include only proved upon.

those matters which deal directly with procedure in “In a word, then, it is to be taken as the funda- actions, leaving to other and independent statutes mental principle, standing, as it were, at the thres- subjects like the organization of courts, the funchold of the whole subject of interpretation, that tions and fees of various officers of the court, and the intention of the Legislature is invariably to be matters of substantive law. If the Code is to inaccepted and carried into effect, whatever may be clude all matters relating to practice either in acthe opinion of the judicial interpreter, or of its wis- tions or special proceedings, then, even with its dom and justice. If the language, reaid in the thirty-four hundred sections, it is incomplete, and order of its clauses, presents no ambignity, and ad- several subjects now included in other statutes mits of no doubt or secondary meaning, it is simply should be added to the Code. If, on the other to be obeyed without more; for the intention, con- i hand, the Code of ('ivil Procedure should be limtrolling though it be, can be resorted to only to ited strictly to que tions rel ing to practice in acascertain what the Legislature intended to do, not tions from their commencement until their final dewhat it has done. If it admits of more than one termination, without regard to various subordinate construction, the true meaning is to be sought, first and subsidiary matters that arise in the progress of of all, in the statute as applied to the subject mat an action, then some subjects that are now in the ter to which it relates, not to the wide sea of sur Code should be eliminated therefrom, in the intermise and speculation; but from such conjectures as est of simplicity, and embraced in other statutes.

It has been suggested that the practice in Jus- vision, and if so, upon what particular lines. Any tices' Courts and in Surrogates' Courts does not suggestion that you may make upon this subproperly belong in the Code of Civil Procedure ;ject will be appreciated by the commission. also, that the detailed rules of evidence in our

CHARLES 2. LINCOLN, present Code more properly belong elsewhere ; that

Littlo Valley. the various provisions of a local character should

WILLIAM II. JOHNSON, be taken from the Code and included in the char

Oncontu. ters of the municipal corporations to which they

A. JUDD NORTHRUP, relate ; that the subject of the organization and

Syraruse. jurisdiction of the various courts, and the election

Commissioners of Code Revision. and appointment of various oflicers of the courts, is no part of a proper system of procedure. It has also been suggested that the code of practice should Abstracts of Recent Decisions. be confined to the rules regulating proceeilings in actions generally in Courts of Record, and that ac ACCOUNTING ON OFFICIAL BONI). - Where il court tions of a special character, and special proceed- of cquity has jurisdiction of a bill for account ings, should be treated in an independent code. against the principal on a bond or his representa

If these suggestions should be adopted, it would tives the sureties on the bond can properly be made involve the separation of several subjects and sec parties for the purpose of the accounting but no detions from the present Code, and their incorpora cree for payment can be made against them. (Mayor, tion in other statutes, but it need not necess

essarily etc., of Borough of Rutherford v. Ilyed (N. J.], 32 involve a revision or change in the phraseology of Atl. Rep. 70.) various sections ; it would require a re-arrangement

ADVERSE POSSESSION PRESCRIPTION.— One in of the law, without changing its language. We possession of lands under a pre-emption entry and are not unmindful of the uncertainty, if not posi

patent from the l'nited States is not charged with tive mischief, produced by frequent changes in the

notice that the lands were swamp lands twenty phraseology of a statute, especially where it has received judicial construction ; and the language of under a prior act of Congress granting swamp lands

years prior to the patent, and, as such, had passed a statute which has become familiar to the practi- to the State, nor with notice that the land was tioner should be retained, unless a change will tend

within the territorial limits of a town, where neither to make the law more clear.

of these facts nor the date of entry appears on the In connection with our work as Commissioners face of the receiver's receipt or patent; and, thereof Statutory Revision, we have found mumerous

fore, such patent is a “just title," and sufficient to instances of omission either in the general statutes,

sustain a plea of prescription, under Code La. arts. or in the Code of Civil Procedure, and several

3181-3181. (Texas & P. Ry. Co. v. Smith [('. S. subjects of general or minor importance are in

S. C.), 15 S. C. Rep. 99 4.) cluded in other statutes which, possibly, ought to

CARRIERS OF PASSENGERS-EXPULSION OF PASSENbe incorporated in the Code ; and in formulating plans for the general revision of the statutes, in

GER-DAMAGES: — The extent of the injury of a pasconnection with possible code revision, it seems to

senger who has been wrongfully expelled from a us that the subject should be considered as a whole,

railroad train, and the amount of damages recoverand that Code revision should be considered in con

able, do not depend at all upon the intentions or nection with its bearing upon general statutory re

good faith of the conductor in executing rule of

the company, but only upon what was done and the vision, and rire versa. Our statute law is now too fragmentary, and we think in attempt should be

consequent injury. (Pittsburgh, C., ('. d St. L. Rv.

Co. v. Russ 11.S. C. ('. of App. ), 67 Fed. Rep. 662.) made to produce a harmonious system upon lines which may be considered feasible and practicable,


vision in a construction contract that the engineer but we are unwilling to engage in a general revision of the Code, without first attempting to ascertain

or architect of the owner shall finally determine, as the opinion of the bar upon the subject. The de

between the contractor and owner, what work has termination of this question of il revision of the been done, and the amount to be paid for it, is Code will have an important bearing upon our work

valid, and should be enforced, in the absence of of general statutory revision.

fraud or palpable mistake. Mundy v. Louisville & Please kindly inform us, upon the enclosed blank,

N. R. ('o. [l". S. ('. C. of App.], 67 Feil. Rep. 633.) whether or not you are in favor of in general revision CORPORATION of the Code, and if you are not in favor of it gene MENT. -- A subscription for capital stock of a corral revision, whether you :re in favor of some re- poration cannot be cancelleil except for fraud or





ged for




mistake, without the consent of all the stockhold-collection and distribution of the assets of an insol

(Pacific Fruit Co. v. Coop [Cal.], 40 Pac. vent corporation, to hear and determine an ancillary Rep. 512.)

suit instituted in the same cause by its receiver, in DEED ABSOLUTE MORTGAGE. — Defendant held accordance with its order, against debtors of such a second mortgage on plaintiff's land. On default corporation, so far as in said suit the receiver on the first mortgage, both mortgagees threatened claims the right to recover from any one debtor a to foreclose, whereupon plaintiffs conveyed the sum not exceeding $2,000. (White v. Ewing, U. S. land absolutely to defendaut, who took possession,

S. C., 15 S. C. Rep. 1018.) 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 unchballe DEED

“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 the several special covenants in use under the com

follow a later decision of the State courts adverse mon law, and is sufficient to compel the grantor,

to the title established by the earlier decisions. before receiving the full amount of the purchase (Wilson v. Ward Lumber Co. [U. S. C. C. Mo.], 67 money, to discharge all liens on

the property.

Fed. Rep. 675.) (Smith v. Jones (Ky], 31 S. W. Rep. 475.)

FEDERAL COURTS DEED - RIGIIT OF WAY. A condition in a deed

- An allegation that the citizenship of a party or of a right of way for erection of a station, the parties is unknown is ivsufficient to sustain the jurischaracter of which is not specified, is complied

diction of the federal courts, as the requisite citiwith by erection of a board shed, without the zenship must distinctly appear. (Tug River Coal & placing of an agent there, it being in structure and Salt Co. v. Brigel [U. S. C. C. of App.], 67 Fed. management like most of the stations on the road. Rep. 625.) (Caldwell v. East Broad Top Railroad & Coal Co. FRAUDS, STATUTE OF — AGREEMENT RELATING TO [Penn.), 32 Atl. Rep. 85.)

LAND. Where the owner of the lot and the street EQUITY -- REFORMATION OF INSTRUMENT. - Plain


appears on the agreement, the omission of tiff made a certain payment to defendant bank, and

the name of the city or town in which the lot is received in exchange a note signed by a firm com

located does not render the description indefinite. posed of the officers of the bank, and the business of (Price v. McKay, N. J.. 32 Atl. Rep. 130.) which was transacted in the bank's office. He sub HUSBAND AND WIFE-CONVEYANCE_VALIDITY.sequently gave a check to his wife, which was also In an action to set aside a conveyance made by a exchanged at the bank office for a similar note.

husband as in fraud of bis deceased wife's interest Plaintiff and his wife could both read and write, in community property, evidence showing what and had transacted considerable business with banks. property the husband and wife respectively had at Plaintiff retained the notes for two years, and, upon

the time of their marriage, and what property they failure of the firm, began suit to reform the notes afterwards acquired, is admissible. Declarations by and change them into certificates of deposits of the the husband after his wife's death as to what was bank, on the ground that he intended to deposit his community property, and his statements claiming money with the bank: Held, that plaintiff was not as his other property belonging to his wife or the entitled to a decree. (Murphy v. First Nat. Bank of community, are also admissible to show fraud in Cedar Falls (Iowa), 63 N. W. Rep. 702.)

connection with the community property in controEXECUTION

- Where a

versy. (Smitheal v. Smith, Tex., 31 S. W. Rep. 422.) fund is given to executors, to keep invested and pay INSURANCE — Proof Of Loss — WAIVER.— Where over the interest to a legatee during his life, a trust an insurance company demands, as part of the is created, and the income of such sund cannot be proofs of loss, an inventory destroyed in the fire, reached by a judgment creditor of the legatee in and which it was not entitled to under the policy, satisfaction of his judgment, by supplementary pro the alternative given the assured being that, if it ceedings under the act respecting executions. (Linn was not furnished, only a compromise would be env. Davis (N. J.], 32 Atl. Rep. 129.)

tertained, it waives formal proof of loss. (Phænix FEDERAL COURTS -CIRCUIT COURT – JURISDIC

Ins. Co. v. Center, Tex.. 31 S. W. Rep. 446.) TION. - The Circuit Court has jurisdiction in a gen

MALICIOUS PROSECUTION - PROBABLE CAUSE.-In eral creditors' suit properly pending therein, for the an action for malicious prosecution. it is for the


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