Lapas attēli

tant" and "occupier," till the year 1810, in the cases of Rex. v. Nicholson, and Williams v. Jones, a when the law upon this subject was for the first time settled. In the case of Rex v. The Mersey and Irwell Navigation Company, Parke, J., says, "Many of the early cases of rateability seem to have proceeded upon a disposition of the court, (pardonable, but perhaps not strictly correct,) to extend the operation of the statute of Elizabeth, so as to include as large a fund as possible in the rate." b

The stat. 3 Wm. and Mary, c. 11, s. 7, says that any unmarried person not having child or children, may gain a settlement by hiring and service for a year; and yet a widower, having children who have gained settlements in their own rights, has been deemed competent to gain a settlement. c

The stat. 8 and 9 Wm. 3, c. 70, declares, that no servant shall gain a settlement in any parish, "unless he shall continue and abide in the same service for one whole year." In the case of R. v. Clayhydon, Lord Kenyon said: "It is now too late to say that a constructive service pursuant to a hiring for a year will not confer a settlement, although I very much doubt whether a greater certainty on this subject would not have been obtained by attending strictly to the words of the act." And again in R. v. St. Mary Lambeth: -"If this point were not encumbered with decisions, and we were to revert to the words of the act of Parliament," &c. So in R. v. King Pyon's, Lord Ellenborough said, "I do not mean to disturb any of the cases which have been already decided, but I am not inclined to carry any of the decisions further still from the plain words of the act."

The words, "poor person who shall be brought before any justice for the purpose of being removed," it was stated before, have been construed to mean "the question concerning the removal of any poor person;" being, says Lord Ellenborough, "the plain sense and spirit of the act, though somewhat straining upon words of it." d And Le Blanc, J. says, "a contrary construction would give effect to the letter by the repeal of the very object of the statute; though I cannot agree that every case, where a construction has been put upon a statute, in some instances directly contrary to the words of it, is a fit precedent to be followed by us." e

In the King v. The Justices of Leicester, the question arose, whether the stat. 54 Geo. 3, c. 84, was imperative. It was contended on one side, that before the 54 Geo. 3, for regulating the time of holding the Michealmas quarter sessions was passed, all the quarter sessions were holden under certain ancient statutes, which were deemed merely directory; and quarter sessions holden at other times than specified in the statutes, were always considered good.

a 12 East, 346.

b 9 B. & C. 111.

e B. v. Everdon, 9 East, 101.

c Anthony v. Cardigan, 2 Bott. 172. d Ante, p. 558.

The stat. 54 Geo. 3, merely changed the time for holding the Michaelmas quarter sessions from the week after Michaelmas to the week after the 11th of October: it should therefore receive a construction similar to that which had been put upon the earlier statutes made in pari materie, viz. that it is directory only, and not imperative. To this it was answered:-That Stat. 54 Geo. 3, is imperative: That, admitting the former acts to have been directory, this statute seems to take away the discretionary power of the justices for it appoints a new time instead of that formerly fixed. That, this must (if any language can) be considered imperative.

In giving judgment, Lord Tenterden said, "Looking at the earlier statutes upon this subject, we find that, by the 12 Rich. 2, c. 10, the justices are required to keep their sessions in every quarter of the year at least, but no particular days are specified By the 2 Hen. 5, s. 1, c. 4, they shall make their sessions four times in the year, Michealmas, Epiphany, Easter, and the Translation of St. Thomas the Martyr, and oftener if need be. The modern statute merely substitutes the week after Michaelmas, &c. So long ago as the time of Lord Hale, the earlier statutes were considered directory:-'It is very plain,' Lord Hale says, 'that the quarter sessions are variously held in several counties, yet those are each of them good quarter sessions; for these acts, especially that of 2 Hen. 5, are only directive and in the affirmative.' "It has been asked," proceeds Lord Tenterden. "what language will make a statute imperative, if the 54 Geo. 3, c. 84, be not so? Negative words would have given it that effect, but those used are in the affirmative only." a

From these expressions the conclusion is sometimes drawn, that "negative words will make a statute imperative," which is incontestable; adding "words in the affirmative are directory only."b But where affirmative words are peremptory, as that "the forms of proceedings set forth in the schedule annexed shall be used;" Lord Kenyon observed, "I cannot say that these words are merely directory;" and a material variance from the form prescribed was in that case held fatal, the justices not having pursued the authority of the statute. c 30

Negative words will make a statute imperative; and it is apprenended, affirmative may, if they are absolute, explicit, and peremp

c Davison & Gill, 1 East, 64.

a R. v. Leicester, 7 B. & C. 12.

b Harrison's Index.

NOTE 30.-Affirmative words in a statute may be construed as a negative of what is not affirmed. Byron v. Sundburgh, 5 Texas R. 428.

Affirmatives in statutes that introduce new laws, imply a negative of all that is not in purview. So that a law directing a thing to be done in a certain manner, implies that it shall not be done in any other manner. U. S. v. Case of Han Penals, 1 Paine 406, Danes Abr. vol. 6, 591 to 593, and cases cited.

tory, and show that no discretion is intended to be given; and especially so, where jurisdiction is conferred.

And with regard to a form prescribed by the act, it should be observed that where a statute directs a particular mode of proceeding or gives a particular form, that form must be observed;-"Non observata forma infertur adnullatio actus;" a Ou recoverie est donc en especial case per estatut, il coveit que home aver touts voies accord al statut."b But, says Lord Mansfield in R. v. Loxdale, c "there is a known distinction between circumstances which are of the essence of a thing required to be done by an act of Parliament, and clauses merely directory. The precise time, in many cases, is not of the essence, while on the 43 Eliz. c. 2, nobody ever thought the number of overseers discretionary."


The 14th sect. of 4 Geo. 4, c. 75, (the Marriage Act,) points out the mode in which licenses are to be obtained, and the matters to be sworn to by the parties or one of them; and one of those matters, where either of the parties, not being a widower or widow, shall be under the age of twenty-one years, is, that the consent of the person or persons, whose consent to such marriage is required under the provisions of this act, has been obtained thereto. Then the 16th section specifies the persons who shall have power to consent; and proceeds:-"and such consent is hereby required for the marriage of such person so under age, unless there shall be no person authorized to give such consent." The language of this section, Lord Tenterden observes, is merely to require consent; it does not proceed to make the marriage void, if solemnized without consent. The 23d section enacts, not that the marriage shall be void, but that all the property accruing from the marriage shall be forfeited, and shall be secured for the benefit of the innocent party, on the issue of the marriage, &c., d and the act was held to be only directory.

"Where the superior courts have a jurisdiction, it can only be taken from them by the express words of an act of parliament, or by necessary implication."e But in 8 Bing. 394, Tindal, C. J., said, "Yet where the object and intent of the statute manifestly require it, words that appear to be permissive only, shall be construed as obligatory, and shall have the effect of ousting courts of their jurisdiction." In that case, on a full analysis of the statute in question, the courts thought the jurisdiction was taken away.

The words "it shall be lawful" are imperative, where, and only where, public duty requires the thing to be done.f

The words "shall and lawfully may," were held in Blewett v. Gordon,g as explained by the context, not to be obligatory; and see 10 Sim. 470.

a 2 Inst. 388.

b Stat. Gloucester, cap. 4.

e Per Ashurst, J., 4 T. R. 109. g 1 Dowl P. C., N. S.

c 1 Burr. 447.

d R. v. Birmingham, 8 B. & C. 20.

f See ante, p. 604.

The same words in Steward v. Graves a were held imperative, in accordance with the views of the framers of the act then under consideration, (7 Geo. 4, c. 66). But the acts under which the respective companies were consituted, were very different.

Words sometimes vary in their import, according to the subject to which they are applied. Hence it is often said they are to be understood in a certain sense, "within the meaning of a particular act;" that is, they are to be construed with reference to the subject-matter to which they are there applied: so that the same words receive a different construction in different statutes.

In Staniland v. Hopkins, b Lord Abinger said, "The court is well aware of the difficulty of putting a construction free from doubt and perplexity on this act of parliament (the municipal corporation act) arising from the endeavour to frame by one act of parliament one universal charter for all municipal corporations and to combine with that object, all the principles of corporation law that are to be found in a long series of judicial decisions."

General words in an act of parliament are often, where the sense requires it, and in furtherance of the intention, to be taken distributely, "reddendo singula singulis." They are thus applied to the subject-matter to which they appear by the context most properly to relate, and to which they are really most applicable. Thus the words "according to the provisions of the said act, and of this act," obviously import that the requisitions of two acts, (that act itself, and another act therein before-mentioned,) in their respective particulars are to be duly complied with; as if the one under its circumstances require signature to an instrument only, and the other that it be under hand seal.c

Thus also, in the construction of the words, "for money or other good consideration paid or given" in the stat. 13 Eliz. c. 5, "paid" is referred to money, and "given" to "consideration." A man devised to "A. B. 100 sheep, ten bullocks, and 107. payable quarterly;" these words payable quarterly, have reference to the rent; for ten bullocks per annum cannot be delivered quarterly.

In Reg. v. Cumberworth Half, d where the words were, "the feeding of a cow by and on the land." Patteson, J., said: "I think we must say reddendo singula singulis,' that the feeding was to be 'on' the land while there was food on it, and by the owner of the land with hay, at other times."

In R. v. Faulkner, the words of an act were made to have a sensible construction, by being taken distributively. A power of com mitment for contempt is not to be vested by an inferential construction of an act of parliament, because, in a general clause, it invests a commissioner with the character of a judge of record. e

a 2 M. & G. 760.

c 7 B. & C. 570.

e 1 C., M. & R. 525.

b 9 M. & W.195.

d 2 Q. B. Rep. p. 49.

Though a statute gives inaccurate names to things, if the court can discover its meaning, it will so expound it, as to give force to the intention of the legislature; thus it seems a statuable requisition of the "great seal of Great Britain" (used improperly, since the old great seal was, soon after the union with Ireland, destroyed in the presence of the Lord Chancellor), is substantially satisfied by the use of the great seal of the United Kingdom. a

So much for the text, or letter, which has largely engaged our attention. The sense and spirit of an act, however, its scope and intention, are primarily to be regarded in the construction of statutes, and it matters not that the terms used by the legislature in delivering its commands, are not the most apt to express its meaning, provided the object be plain and intelligible, and expressed with sufficient distinctness, to enable the judge to collect it from any part of the act. The object once understood, judges are so to construe an act, as to suppress the mischief or advance the remedy. But yet the court is not at liberty, even for that purpose, to introduce or exclude words from any clause of a statute, but is bound to construe the words which the clause contains, with reference always to that which appears to be plainly and manifestly its object. b

A remedial act shall be so construed as most effectually to meet the beneficial end in view, and to prevent a failure of the remedy. As a general rule, a remedial statute ought to be construed liberally. Receiving an equitable, or rather a benignant, interpretation, the letter of the act will be sometimes enlarged, sometimes restrained, and sometimes it has been said, the construction made is contrary to the letter: which should be read-ultra the letter, and confined to ancient statutes. "1

Thus, it is laid down, that a statute may be extended by construction, to other cases within the same mischief and occasion of the act, though not expressly within the words. The stat. 9 Rich. 2, c. 3, gives a writ of error to him in reversion, "if tenant for life, tenant by curtesy, &c., lose in a "præcipe;" resolved, that although the statute speaks only of reversions, yet remainders are also taken to be within the purview thereof. c

c Winchester's case, 3 Rep. 4

a R. v. Bullock, 1 Taunt. 80.

b Bloxam & Elsce, 6 B. & C. 174.

NOTE 31.-In construing a remedial statute, which has for its end the promo tion of important and beneficial public objects, a large construction is to be given, when it can be done without doing violence to its terms. Wolcott v. Pond, 19 Conn. 597.

This rule applies especially in statutes giving a right to appeal, which are to be liberally construed as in furtherance of justice. Pearson v. Lovejoy, 53 Barb. 407. So public statutes, in regard to public improvements. Hudler v. Golden, 36 N. Y. 446; Candee v. Heyward, 37 N. Y. 653.

« iepriekšējāTurpināt »