Lapas attēli

Where, therefore, an act contained a clause authorizing a railway company, a to demand a rate not exceeding four-pence per ton per mile on all coals carried along the railway-and a subsequent clause, directed that for all coals shipped for exportation, a rate not exceeding one half-penny per ton per mile should be charged, it was held that the second clause was to be read as an exception ingrafted upon the first; and also that coals shipped for London, were coals shipped for exportation.

A power derogatory to private property, must be construed strictly, and not enlarged by intendment. b


Private acts of parliament, conferring new and extraordinary powers of a special nature upon particular persons, affecting the property of individuals, or giving exemption from a general burden attaching by law upon all parties, should receive a strict interpretation. Where particular powers are granted to a company, if they enter upon any man's land, they must clearly shew their authority; and if the words of the statute on which they rely are ambiguous, every presumption is to be made against the company, and in favor of private property. d

Where a local act empowered trustees to take and use lands for the purpose of making a road, making or tendering satisfaction to the owners or proprietors of private lands, a court of law would not confine the meaning of these words to the owners of the inheritance only, but considered them to extend to "all persons having any estate or interest in the land." e

The 70th and 71st sections of the London and Southampton railway act, provide for the crossing by the railway, of roads not being turnpike roads. By the 72d section, it is enacted that in all cases where the railway shall cross any turnpike road, such turnpike road shall be raised or sunk, by and at the expense of the company; the court of exchequer determined that a road on which toll-gates were by law erected, and tolls taken thereat, was a turnpike road within the meaning of the 72d section. f

A railway act provided that it should not be lawful for the railway company to make or establish any public station, yard, wharfs,

a Barrett v. The Stockton and Darlington R. C., 2 M. & G. 134; in error, 3 M. & G. 956.

b Lofft, 438.

c Rex v. Croker, Cowp. 26; 4 Mylne & C. 116.

d Scales and Pickering, 4 Bingham, 450; 2 Chit. 610; 2 Chit. 658.

e Lister v. Lobley, 6 Nev. & M. 340.

f Railway Co., 1 Railway Cases, 653.

NOTE 40.-Every statute derogatory of the rights of property, or that takes away the rights of a citizen, is to be strictly construed. Van Horne v. Dorrance, 2 Dall. 316. So also a statute in derogation of the common law. Brown v. Barry, 3 Dall. 367.

If a common law term be used in a statute, without defining it, it is to be under. stood in the sense of the English common law. McCool v. Smith, 1 Blatch. 459.

&c., &c., upon the estate of G. without his consent. On demurrer, it was held that the word "public" did not necessarily override the whole sentences; and that if it did, then that, from the subsequent clauses, every convenience connected with the railway, must be considered as for the public use. a

Again it was held, that where parties under an act of parliament of a private nature seek to burden the property of others by subjecting it to a compulsory power, they must show unambiguous words in the statute. b In the Stourbridge Canal Company v. Wheeler, c Lord Tenterden said: "The canal having been made under the provisions of an act of parliament, the rights of the company are derived entirely from that act. This, like many other cases, is a bargain between a company of adventurers and the public, the terms of which are expressed in the statute; and the rule of construction in all such cases is now fully understood to be this-that any ambiguity in the terms of the contract, must operate against the adventurers and in favor of the public." "The powers," says Lord Cottenham in the cases before cited, of the Manchester and Leeds Railway Company, "given to these companies, are so large, and frequently so injurious to the interests of individuals, that I think it is the duty of every court, to keep them most strictly within their powers; and if there be any reasonable doubt as to the extent of their powers, they must go elsewhere to get enlarged powers." d

In Lee v. Milner, Alderson, B., said: "The stipulations contained in acts of this sort are in the nature of conditions, and the legislature confers those privileges on such companies on the condition that they shall obey the different enactments contained in the different acts with reference to them." e

Private acts are to be regarded and construed as parliamentary contracts. In Blakemore v. The Glamorganshire Canal Company, (the leading case upon this subject,) Lord Eldon said, “When I look upon these acts of parliament I regard them all in the light of contracts made by the legislature on behalf of every person interested in anything to be done under them. And I have no hesitation in asserting that, unless that principle be applied in construing statutes of that description, they become instruments of greater oppression than anything in the whole system of administration under our constitution. Such acts of parliament have

a Gordon v. The Cheltenham, &c., Railway Co., 5 Beav. 229.

b Webb v. The Manchester and Leeds Railway Co., 4 Mylne & C. 116; 1 Railway Cas. 576.

c 2 B. & A. 792.

d Webb v. The Manchester and Leeds Railway Co., 1 Railway Cas. 576. And see Lord Cottenham's judgment in Kemp v. The Brighton Railway Co., and his observations in Bell v. The Hull and Selby Railway Co., 1 Railway Cas. 495, 637. e Lee v. Milner 2 Y. & E. 618. Pickford v. Grand Junction Railway Co., 10 M. & W. 400.

f 1 Myl. & R. 162.

now become extremely numerous, and from their number and operation, they so much affect individuals, that I apprehend those who come for them to parliament, do, in effect, undertake that they shall do and submit to, whatever the legislature empowers, and compels them to do, and that they shall do nothing else."

In a case between the same parties in the Exchequer Parke, B., said, "The deliberate opinions of Lord Eldon, Lord Lyndhurst, and Lord Wynford, have established that these acts of parliament constitute a contract or bargain between the public and the company."a

The principle so stated, was acted upon in R. v. Cumberworth by Lorn Tenterden and Patteson, J. b And in R. v. Edge Lane, Lord Denman said, "The remarks of Lord Eldon, considering his high authority and undoubted caution, have great weight. We also think, that where powers are entrusted by the legislature for an avowed and precise object, the pursuit and performance of that object should be rigidly watched."c

An act of parliament brought in on the petition of the corporation of London, is to be considered as a contract between the respective parties, notwithstanding it is (as many other acts of the same kind are) declared to be a public act." d "Whether an act is public or private," said Wigram, C., in the late case of Dawson v. Paver, e "does not depend upon any technical considerations, (such as having the clause that the act shall be deemed a public act,) but upon the nature and substance of the case." And see the same case as to mere general words in an act of this kind, binding the rights of strangers.

A statute which gives a new remedy, ought not, it is laid down, (but rather questionably, whilst expressed in such general terms,) to receive a liberal construction. What is doubtless meant, is a new remedy-by summary proceedings, or other deviations from our ancient constitution.f

A statute creating a new jurisdiction, ought to be construed strictly.g And the jurisdiction of the superior courts is not to be ousted but by express words or necessary implication. Tindal, C. J., in delivering his judgment in Crisp v. Banbury, h where the words were "that the matter shall be referred to the arbitration of," &c.; fully recognises this proposition.

There are several instances in which statutes giving a summary remedy before justices have been held not to exclude the right of action, but to be cumulative. Yet where an act created penalties of 50%. and of 10., and enacted, that the former should be sued for in any of the courts at Westminster, and provided that

a 1 Cr., M. & R. 141.

c 4 A. &. E. 723.

e 5 Hare, 434.

g 10 Rep. 75; Stra. 258.

j Holt N. P. C. 147, 3 E. & G. 1275.

b 3 B. & Ad. 108.

d Prichard v. Heywood, 472.

f Pool v. Neal, 2 Sid. 63.

h 8 Bingh 394

it should and might be lawful for justices of the peace, &c., to hear and determine the latter, with a power to them to mitigate the penalties; it was held, that such proviso (clearly inserted for the benefit of the prosecuted) ousted the jurisdiction of the superior courts, as to the 10l. penalty.a In Timms v. Williams, 4 Q. B. R. 422, Lord Denman said, "As in the case of saving banks, so here (in the London Loan Society,) as it appears to me, the legislature has thought it useful to withhold the power of instituting expensive suits in the supreme courts, and to appoint a domestic forum to settle those small disputes which a society of this kind is likely to be engaged in.'

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It is a general rule in the interpretation of acts of parliament, that an enactment, the effect of which is to cut down, abridge, or restrain, any written instrument, shall have a limited construction. The enactment framed for such a purpose should be positive, and the words so clear and express, as to leave no doubt of the intention of the legislature. b The cases of Morris v. Mellor, and Bennett v. Daniel, as to the defeazance to a warrant of attorney, have been already noticed pp. 601, 602.

Statutes against frauds are a satisfactory exception to the rule, that penal statutes are to be taken strictly. There is no contradiction, except in terms, in holding, that where the offence is to be punished by setting aside a fraudulent transaction, or an instrument improperly obtained, the fullest effect shall be given to the provision framed to suppress the mischief,-whilst, where the of fender is in danger of life or liberty, he must be brought strictly within the letter of the law. Statutes, therefore, against frauds, are always liberally and beneficially expounded. "Chancery will aid remedial laws," said Lord Keeper Wright, c though they are called penal; not by making them more penal, but by letting them have their course." The statute of Marlbridge is a penal law, but yet, because it is of a beneficial nature, and for the public good comprehensively considered, though the word in the act be "faciant," it is extended to waste omittendo,-though the former term literally imports active waste.d

Though it is said, as has been lately shown, that where acts of parliament making a thing void, "it shall be void to all intents, and have a very violent relation; "e and though the stat. of 13 Eliz. c. 10, makes void certain leases by bishops "to all intents and purposes," yet such a lease is not void against the lessor himself. For, such rent reserved shall be good by the way of contract between the lessor and lessee, but is not incident to the reversion, and the lease is voidable by the successor.

a Cates v. Knight, 3 T. R. 442; 4 T. R. 100; 6 T. R. 248.

b Morris v. Mellor, 6 B. & C. 446; Bennett v. Daniel, 10 B. & C. 504.

c Ch. Prac. 215.

d 10 Mod. 282.

• 2 Jo. 19, citing 3 Hen. 7, 15; et al. Vin. Abr. tit. Stat. 139.

It was said by Horton, as early as 11 Hen. 4, tat "a statute penal, as the statute of provisions, shall be taken stricti juris; but a statute made for common remedy for general mischief, may be taken by equity." a Thus the Riot Act and the Black Acts highly penal as are their provisions generally, are treated as remedial acts in proceedings taken against the hundred.

Conformably to this doctrine, it is by no means unusual, in construing a semi-remedial statute (acting upon the offence and avoiding the transaction,) to extend the enacting words beyond their natural import and effect, in order to include other cases within the same mischief, and also within the apparent intention of the legislature. Thus, it was held, that the recitals in the disabling statute, 13 Eliz. c. 10, do not limit the force of the subsequent enactment to cases in which the mischief by the alienation is done to the personal interests of the successor of the alienor; for it is evident from the enactment, that the legislature intended to apply the prohibition to the case of persons who were seised either as mere trustees, or in a great measure as trustees, and among other persons, to the master or guardian of an hospital. b Indeed, it is largely held, that in the case of a remedial statute, everything is to be done in advancement of the remedy that can be given, consistently with any construction that can be put upon it." c


But these last-mentioned terms are too general to convey any precise instruction. It will be more profitable, as resting upon more specified grounds, to examine carefully the deliberate opinions of deeply learned judges, upon an act framed with a particular view to suppress frauds, (the 13 Eliz, c. 5,) and therefore an act, according to the rule under consideration, to be liberally and beneficially construed, to promote that end. It was held in the construction of this statute, that "the purchaser who shall avoid a precedent covenant made by fraud and covin, must be a purchaser for money or other valuable consideration; for, although it is said in the preamble, 'for money or other good consideration,' and likewise in the body of the act, 'or other good consideration,' yet these words are only to be intended of valuable consideration; and that appears by the clause which concerns those who had powers of revocation; for there it is said, 'for money or other good consideration paid or given,' and this word 'paid' is to be referred (reddendo singula singulis) to 'money,' and 'given' is to be referred to good consideration; so, the sense is,-for money paid, or other good consideration given, which words exclude all considerations of nature or blood, or the like. And this latter clause doth well expound these words mentioned before; for if consid

a Br. Parl. pl. 13; citing 11 Hen. 4, 76.

b St. Peter's, York, Dean and Ch. v. Middeborough, 2 Y. & J. 196.

c Johnes v. Johnes, 3 Dow. 15. S. P. Acheson and Everitt, Cowp. 391.

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