P. 25. Interpretation must be distinguished from construction. The former considers the apparent literal meaning of the words, the latter broadens the view to consider the law in the light of its spirit and object, the intent of its maker, and all reasonable implications. It may thus happen that by construction a law may receive a meaning contrary to that expressed by its words taken literally. Thus when a New York statute prohibited a physician from testifying as to information received by him in attending upon a patient, it was nevertheless held that such testimony was admissible in a case where the patient had been a man dying from murder, and the physician attending him was brought into court to testify against the murderer. The intent of this statute, said the court, was only to exclude a physician's testimony when it might be detrimental to the patient's interests. (Pierson v. People, 79 N. Y. 424; followed in People v. Harris, 136 N. Y. 423).

P. 26. An important rule of construction is expressed by the phrase noscitur a sociis, i.e. words are understood or construed by associated words; they take, so to speak, color from each other. This is usually by way of restrict ing the more general to a sense analogous to the less general (People v. Bridges, 142 Ill. 30). Thus a statute provided that "actions on bonds, promissory notes, bills of exchange, written leases, written contracts, or other evidences of debt in writing, shall be commenced within ten years next after the cause of action accrued." The phrase "other evidences of debt in writing" was held not to extend to a different class of instruments from those previously enumerated. It could, therefore, be regarded as including only

contracts whereof the parties intended to put the evidence in writing when the contracts were made. Hence the phrase could not apply to a letter, written after the contract was made and admitting the indebtedness. (Wood v. Williams, 142 Ill. 269; see Ambler v. Whipple, 139 Ill. 311).

The New York Civil Code gives power to a surrogate to open or vacate his decree for "fraud, newly discovered evidence, clerical error, or other sufficient cause. It is held that this last expression means other causes of like nature with those specifically mentioned. (In re Tilden, 98 N. Y. 434; other examples are Mangam v. Brooklyn, 98 N. Y. 585, 595; Sims v. U. S. Trust Co., 103 N. Y. 472, 479).

That contemporaneous and continuous practical construction may be of great weight in determining the meaning of doubtful or uncertain provisions in a constitution or statute is held in McPherson v. Blacker, 146 U. S. 1. Hence it was decided that the Michigan law providing for the election of presidential electors by popular vote in districts, instead of by general ticket, as is the common practice in the different States, was constitutional. The practice of the States in earlier times showed that this was the way in which the Constitution was understood.

P. 27. An important distinction exists between directory and mandatory statutes. A mandatory statute is one that must be obeyed; a failure to observe its requirements is fatal to the validity or regularity of the proceeding. A directory statute is one which is expected to be obeyed, and yet a failure so to do does not invalidate the act. (See French v. Edwards, 13 Wall. 511).

Thus in Meister v. Moore, 96 U. S. 76 it is said that a statute may declare that no marriages shall be valid unless they are solemnized in a prescribed manner, and would then be mandatory; "but such an enactment is a very different thing from a law requiring all marriages to be entered into in the presence of a magistrate or a clergyman, or that it be preceded by a license or a publication of banns, or be attested by witnesses; such formal provisions may be construed as merely directory." Hence a statute of this latter kind was held not to render invalid a marriage made simply by agreement, without any ceremony.

P. 30. The reason why the common law is called unwritten law, though it is contained in written decisions, printed reports and treatises, etc., is because a decision or report is deemed to be only evidence of the law, rather than the law itself. The theory is that the rule of law has always existed and that the court, in rendering its decisions, simply declares the law. As to some departments of the common law which have been wholly developed in modern times, as railroad law, the law of telegraphs, etc. this theory seems a somewhat violent presumption, but still it has been from early times a generally received legal conception of the nature of our common law. Practically, however, we depend upon books and documents for our knowledge of the law and not upon oral tradition.

P. 36. "It is no doubt true that even a single adjudication of this court upon a question properly before it is not to be questioned or disregarded, except for the most cogent reasons and then only in a case where it is plain that the judgment was the result of a mistaken view of the

condition of the law applicable to the question. But the doctrine of stare decisis, like almost every other legal rule, is not without its exceptions. It does not apply to a case where it can be shown that the law has been misunderstood or misapplied, or where the former determination is evidently contrary to reason. The authorities are abundant to show that it is the duty of courts to re-examine the question." (Rumsey v. N. Y. etc. R. Co., 133 N. Y. 79, 85, overruling Gould v. Hudson Riv. R. Co., 6 N. Y. 522).

P. 37. Wallace on Reporters is a useful book, showing the comparative value of the early English reports. So the Lawyers' Reference Manual of Law Books by Mr. Soule is a valuable book of reference.

P. 51. To constitute a statute a public act, it is not necessary that it should be equally applicable to all parts of the State. It is sufficient if it extends to all persons within the territorial limits described in the statute. (Pierce v. Kimball, 5 Me. 54). Thus a statute of Massachusetts for the preservation of the fish called bass in Dunston River in Scarborough was deemed to be a public statute, since it was obligatory upon all citizens and they must notice it at their peril. (Burnham v. Webster, 5 Mass. 266).

"A law which relates to persons or things as a class is general, but one which relates to particular persons or things of a class is special and private." Thus a law regulating the rights of married women, or of minors, or of aliens, would be general. (In re Elev. R. Co., 70 N. Y. at p. 350). "In this country the tendency has been to enlarge the limits of public statutes and to bring within them all enactments of a general character, or which in any way affect the community

at large." (Sutherland on Statutory Construction, § 193).

By the N. Y. Constitution (Art. 3, § 18) the legislature is prohibited from passing a private or local bill, "changing the names of persons, incorporating villages, granting to any corporation, association, or individual the right to lay down railroad tracks," and for various other purposes; but "the legislature shall pass general laws providing for such cases, and for all other cases which in its judgment may be provided for by general laws." So "no private or local bill shall embrace more than one subject and that shall be expressed in the title." (Id., § 16.)

P. 54. For interesting cases showing that penal statutes are construed strictly, see Bowles v. Habermann, 95 N. Y. 246, 251; People v. Rosenberg, 138 N. Y. 410.

P. 57. When a statute amends a former statute "so as to read as follows," it operates as a repeal by implication of inconsistent provisions in the former law, and of provisions therein which are omitted in the latter.

When the amendatory act re-enacts provisions in the former law, either in the very same words, or by the use of equivalent though different words, the law will be regarded as having been continuous, and the new enactment, as to such parts, will not operate as a repeal, so as to affect a duty accrued under the prior law, although, as to all new transactions, the later law will be referred to as the ground of obligation. (In re Prime, 136 N. Y. 347). In case the amendatory act is repealed, this does not revive the original act, but both fall by virtue of the repeal. (People v. Wilmerding, Id. 363).

P. 60. A statute read as follows: "Goods and chattels in the possession of

the person opposite to whose name the taxes are set down, or upon the lands for which such taxes are assessed, shall be deemed to belong to such person; and no claim of property made thereto by any other person shall be available to prevent a sale."

Said the Court of Appeals, in construing this statute,-"It is manifest that this language cannot be taken literally. If one should drive upon the land taxed with a horse and wagon, simply to make a call as a visitor, or as a physician, or as an officer in the discharge of his official duty, could the property be taken out of his possession to satisfy the tax? If a thief had stolen the property, and taken it temporarily upon the land, could it be taken from his possession and sold for the tax? If one is passing over the land of another on his own business, can he be stripped of all the property in his possession for a tax upon the land? It cannot be doubted that the law-makers did not intend that this law should be applied in such cases; and yet they are within the letter of the law. The law-makers cannot always foresee all the possible applications of the general language they use; and it frequently becomes the duty of the courts in construing statutes to limit their operation, so that they shall not produce absurd, unjust or inconvenient results not contemplated or intended." (Lake Shore etc. R. Co., v. Roach, 80 N. Y. 339).

tinction has led to a division of Law into the "law of persons" and the "law of things." Although the distinction, as now drawn, is of modern date, the phraseology in which it is expressed is as old as the time of Gaius, and probably much older. Gaius writes (Inst. I. 8) Omne autem jus quo utimur vel ad personas pertinet, vel We may identify, though only approximately, what the Romans called the "law of persons" and the "law relating to things" with a distinction between, on the one hand, the persons in whom a right resides or against whom it is available; and, on the other hand, the objects over which it is exercised, and the acts by means of which it is enjoyed.

ad res.

Though the Roman writers shortened jus quod ad personas pertinet into jus personarum, they never abbreviated jus quod ad res pertinet into jus rerum. Yet their later followers have talked of jus rerum as well as of jus personarum, thereby causing not a little confusion; and Sir Matthew Hale, adopting these phrases, mistranslates them "rights of persons and of things," and is followed by Blackstone." (Holland's Jurisprudence, pp. 112, 114).

"Another grand division of rights is into rights in personam and rights in rem. A right in personam is one available against a definite person or persons; a right in rem is available against all persons indefinitely. A servant, for instance, has a right to his wages for the work he has done, available against a definite individual or master; while the owner of a garden has a right to its exclusive enjoyment, available against no one individual more than another but against everybody." (Id. p. 122).

P. 70. Under the U. S. tariff laws, an

importer who pays duties on goods to the collector, in order to obtain possession of the goods, must make a written protest at or before the payment, in order to be entitled to sue for a recovery of money so paid, in case the law did not authorize the collection of such duties. The collector's act is a form of "duress of goods." (U. S. Rev. St. § 3011).

P. 79. In cases of Eminent Domain it is a rule that, in order to make the use "public," a duty must devolve upon the person or corporation exercising the right, to furnish the public with the use intended. This use may be limited to the inhabitants of a small or restricted locality, but it must be to those inhabitants in common and not to a particular individual. The question whether a particular form of use is a public use. is a judicial one. (Pocantico Co. v. Bird, 130 N. Y. 249).

In the case of the Niagara Falls R. Co., 108 N. Y. 375, where land was taken for the construction of a railroad from the foot of the American Falls, along the margin of the river, to the Whirlpool, it was held that the use was not a public one. The reasons were that the road could only be operated during the summer months, there could be no habitations along the route and no traffic or business except to convey visitors at the Falls along the river; hence the proposed road was not a highway.

As to the measure of damages in eminent domain cases, see Bangor R. Co. v. McComb, 60 Me. 290; Bohm v. Elev. R. Co., 129 N. Y. 576.

P. 80. The destruction, in the exercise of the police power of the State, of property used in violation of law in maintaining a public nuisance, is not a