CHAPTER VI. IF THE EXCEPTIONS TO GENERAL RULES OF CONSTRUCTION, AND THE MANNER OF PLEADING OR TAKING ADVANTAGE OF PARTICULAR STATUTES. REPEAL OF STATUTES AND ITS EFFECTS, AND ACCIDENTS. THE rules and maxims in the preceding chapter as to the general interpretation of statutes, as will be seen, have been selected from the books of the most approved authors, and the adjudications of courts and jurists upon that branch of law. They embrace all that can be regarded as needful on that subject. The law in regard to the interpretation of contracts, wills, covenants, and other facts, by the writers on those subjects, is not brought within the scope of this treatise, except in so far as their interpretation is identical with that of statutes. The rules of construction applicable to special cases, and to distinct parts of statutes with judicial exposition, selected from American and other authority as to the effect of the title, preamble, clauses, and provisos in statutes; with the meaning of particular words and expressions therein, will be found in a subsequent chapter; as will also the interpretation of written constitutions by the soundest of American writers. The nature, parts, and properties of a statute having been thus considered, the next inqury is, what are its accidents; how can it be pleaded, or in what way taken advantage of? In an action founded on a statute, the plaintiff ought a to aver every fact necessary to inform the court that his case is within the statute, concluding in general with an express reference to the statute. A public statute it is never advisable to set forth, since by reciting the act and concluding contra formam statuti, the risk of a fatal variance is incurred. If part of a statute be public, and the residue thereof private, there is no necessity that the part which is public should be recited in pleading.b a And. 62; Lut. 1089. b 10 Rep. 57, the Chancellor of Oxford's case, Hob. 227, Sid. 24. If a private statute be pleaded, it must be recited, and nul tiel record may be replied; but if the exemplification of a private statute under the great seal be pleaded, nul tiel record cannot be replied. a1 In pleading a statute it is not necessary to recite the title or the preamble. The title, said Lord Holt, is no more a part of the law than a title of a book is part of the book, and there is, for that reason, no necessity to recite it; but if a party do take upon him to recite the title of a statute, he thereby ties himself to an act so entitled, and if he cannot produce it, he is gone.b We have said in a previous chapter that certain statutes, such as the statute of limitations, and the statutes to prevent usury, though public statutes, are required to be set up in pleading by the party who desires to interpose them as defences, and heretofore in practice, the courts have been disposed to look upon such defences with disfavor, especially in cases of latches, on the ground that such defences are inequitable, and immoral. This is, with more modern views, believed to be a mistaken policy for the judiciary. The policy of the government, is for the legislature to direct; that of the duty of the judiciary is, to give full effect to the legislative will; and every effort by them to throw discredit on statutory provisions as unjust, as inexpedient, and is but to arrogate to themselves a censorship over the law-making power which our constitutions have nowhere entrusted to them. "All laws emanate from the same supreme power; and while they remain on the statute books are all entitled to equal respect and obedience." a' a The Prince's case, 8 Rep. 28, Hale's H. C. L. 16. c Sedgwick on Const. Law, 109. b 6 Mod. 62. NOTE 1.-The objection, that a statute was not constitutionally passed, in order to be available, must be set up in an answer by way of defence. Darlington v. Mayor, &c., of New York, 31 N. Y. 164, 2 Robertson 274. NOTE 2.-Statutes of limitation are now regarded favorably in all courts of justice. They are called "statutes of repose." Usually they are founded in a wise and salutary policy, and promote the ends of justice. Lessee of Parish v. Ferris, 2 Black. 606; Tolson v. Kage, 2 Brod. & Bing. 217; Lewis v. Marshall, 5 Peters, 470. They are entitled to the same respect as other statutes and ought not to receive unfavorable construction or to be explained away. Bell v. Morrison, 1 Peters, 360; Willison v. Watkins, 3 Pet. 54; McCleny v. Silliman, id. 270. They rest upon sound policy and tend to the peace and welfare of society. They are often a very meritorious defence. Tracy v. Suydam, 30 Barb. 117. No one who has reflected upon the subject, and whose observation and experience qualify him to judge, but will sanction and applaud the wisdom and policy of a statute, the A misrecital of the day on which the parliament was holden, or of the session, (as of the 29th of Eliz., when the session commenced the 28th Eliz.,) a or of the place of making the statute, or a repugnancy in reciting the day of its making, will be fatal; so, if any material part be omitted or misrecited. But trifling variations which do not alter the sense of the material parts of the statute would not, it is apprehended, now, be considered fatal.c It is no fault in the recital of a statute to omit altogether the day on which the parliament was holden; for the judges are bound to take notice of the commencement of a session, and it is a safer course to omit it, to avoid the risk of a misrecital. If a mistake be made in reciting even a material part of a public statute, the defect, it seems, will not be fatal, unless the indictment conclude "against the form of the said statute ;"d for if it conclude "against the form of the statute in such case made and provided," the misrecital will be rejected as surplusage, and the court will give judgment upon that statute which warrants it. But where an indictment is founded upon a private statute, such a defect will not be cured by a general conclusion. e In civil actions, misrecitals of a private statute can only be taken advantage of by plea of nul tiel record, or, in assumpsit, under the general issue; while the time or place of holding the parliament being misstated, is ground of demurrer.g In pleading upon statutes, it has already been stated, that where there is an exception in the enacting clause, the plaintiff must show that the defendant is not within the exception; but if there be an exception in a subsequent clause, that is matter of defence, and the other party must show it, to exempt himself from the penalty. h When a temporary a 2 M. & S. 124; 2 Bingham, 255. b Lord Raym. 382; Cro. Eliz. 186; Cro. Car. 522. c 2 Haw. C. 25, s. 109. e 2 Haw. c. 25, s. 104; 2 Hale, 173. g Cow. 174. d Lord Raym. 210; Lutw. 140. f Lord Raym. 381. h 1 Term, Rep. 144. object and obvious tendency of which is to promote the peace and good order of society, by quieting possessions and estates, and avoiding litigation. La Frombois v. Jackson, 8 Cow. 615, 616, per Viele, Senator. We are not warranted in applying a different rule to the defence of usury, from that which we would hold applicable in other cases. It is a defence allowed and provided by law. The defendant (in that case) did not claim any indulgence from the court, but simply asked for the indulgence of those rules which the legislature has provided for all cases indiscriminately, whether the party invoking their exercise was seeking to visit his adversary with a forfeiture or not. The law has not made any distinction between such defences, and those where no for feiture is involved; and the court can make none. If the sense of the legislature is plainly expressed, the court has no judgment to pass upon the policy of its provisions. Catlin v. Gunter, 11 N. Y. 375, per Johnson, J. Bates v. Voorhees, 7 How. Pr. R. 235. statute which has expired, is continued by taking notice of the latter. a If one statute have prohibited the subsequent statute, it is sufficient to plead the former without doing of an act, and another be afterwards made which inflicts a forfeiture on the person who shall do the act; the person who sues for the forfeiture must plead both statutes. b No person is obliged to recite in pleading, any more of the statute than the clause which makes for himself, subject to the rule before stated, that if any proviso or exception is parcel of the clause which is pleaded, the exception must not be omitted, or it would be a misrecital of the clause. But, if one party have only pleaded such part of a statute as it was for his interest to plead, the other party may plead any other part of the statute.c An act of Parliament sometimes directs the manner in which a defendant shall be entitled to take advantage of the enactment, as by pleading the statute in bar; in such cases the party must pursue the remedy pointed out, or if he do not avail himself of it at the proper time, and in the manner and form prescribed, he cannot take advantage of it afterwards.d If a statute in any case direct, what shall be pleaded, the plea must be in the words of the statute, and all indictments upon penal statutes must, it has been said, strictly pursue the statute; that is, when properly understood, every indictment must contain all the circumstances necessary to constitute the crime; and those circumstances must be stated positively, "without any periphrasis or intendment." But unless where technical words have been long established to be necessary in the description of particular offences, (and Lord Kenyon said he was not inclined to multiply the instances,) it is sufficient that the substance of the offence be charged with certainty, and by positive allegations contained in some (and it matters not in what) parts of the indictment brought within the words and meaning of the act. Thus it has been held sufficient to aver pretences to be false without charging that the defendant falsely pretended. e The authority of a statute may be considered with reference to its extent, duration, and sanction. 1. It is the highest authority which this kingdom acknowledges upon earth. It has power to bind every subject in the land, and the dominions thereunto belonging; nay, even the King himself if particularly named therein. It can discharge a person from his allegiance, and restore him to a state of nature. g It can make his estate to cease in the same manner as if the party pos a Stra. 1066. b Plowd. 206, Bac. Abr. title statute 1. c Cro. Jac. 240; L. Raym. 120; 11 Mod. 207; 2 Hale 170. d Taylor v. Blair, 3 Tenn. R. 452. f1 Bl. Com. 185. e The King v. Airey, 2 East, 20. sessing it were dead; as is done by the 21 H. 8, c. 13, which declares, that if a person accept a second benefice, the first shall be void, in the same manner as if the incumbent had died.a It can dissolve a marriage, and enable the adulteress to intermarry with her paramour.b It can enable a man to have, or be, an heir, who could not otherwise have, or be, an heir.c An estate tail may be limited by a statute without a donor: and the validity of such a limitation is not to be measured by the rules of the common law; for the statute can control the rules of of the common law.d It can do no wrong; but "it may do several things that look pretty odd," (Lord Holt's expression;) it can make Malta in Europe, and can make a woman a mayor, or a justice of the peace.e It is the rule that the King shall not be restrained of a liberty or a right he had before, by the general words of an act of Parliament, if the King is not named in the act. But if the statute be intended to give a remedy against a wrong to prevent fraud, g tortious usurpations, or the decay of religion, the King, though not named, shall be bound by it. So, the King, though not specially named, is bound by acts for the advancement of religion or of learning, or for providing for the poor; as by the act 10 Car. for uniting livings in Ireland. So the general words of the statutes which tend to perform the will of the founder or donor, shall bind the King, h although he be not named.i These instances, which are adduced in the books as exceptions to the rule, certainly open the door to great latitude of construction, and leave the rights of the Crown very unsettled in such matters. Yet the authorities which support the doctrine are mostly taken from times in which the prerogative was highly favored. They are collected in the case of Willion v. Berkley. It was there held, by the Court of Common Pleas, that the King was bound by the Stat. de donis. It was said in the Magdalen College case,k that where the King has any prerogative, estate, right, title, or interest; that by the general words of an act of Parliament, he shall not be barred of them. In later instances the claim is only asserted, that the King shall not be divested of any of his prerogatives but by plain and express words for that purpose, though all his other a 6 Rep. 48; Mildmay's case. c 1 Lev. 75. • 2 Jon. 12. g 5 Rep. 14. (b.) i 11 Rep. 73. k 11 Ren. 74. b 12 Mod. supra. d 1 Jon. 105; Raym. 355. ƒ 2 Inst. 681. h Str. 516. j Plowden, 239, 244. NOTE 3.-A similar rule of construction is found in this country. It has been held that the general words of a statute, do not include the government or effect its rights, unless such intention be clear and indisputable, upon the face of the act United States v. Hewes, Crabbe. R. 307. |