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or expository of the former word; "balivam, vel jurisdictionem." See stat. of Marlbridge. a
"Other than: "-The sense of an exception. b
"Other person or persons: "-Persons of the same description as those before enumerated.
In a proviso in 27 Hen. 8, the words are, "That if any wife shall have any manors, lands, &c. unto her assured after marriage for term of her life, or otherwise in jointure," &c., an estate in fee simple was held to be within the express letter of the act, for "otherwise" extends to all other estates conveyed to the wife not mentioned before in the act, which are as, or more, beneficial to the wife than the estates before mentioned. c
"Parish or place to which they belong :" For the construction of these words as to repairs of chapels under 3 Geo. 4, c. 72, s. 20. See Craven v. Sanderson. d
"Parties grieved:" Whether the near relations of a person whose body has been disinterred for dissection are "parties aggrieved" is doubtful, R. v. Toole. e
Payments bona fide made" under the Bankrupt Act, 6 Geo. 4, c. 16, see Bevan v. Venables.f
Presently answer: " held in Plowden only presently become debtor, not presently pay.
"Preferred: " before which indictment preferred, held not to mean the court alone before which a bill is found, but that also to which it is removed, R. v. Pembridge. g
Stat. Marlbridge, cap. 3. "Non Ideo puniatur dominus per demptionem." "Redemption " is fine: and finis dicitur quia finem litibus imponit; the party redeems his offence for a sum of money, which makes an end of his trangression and of his imprisonment for it. /
Upon the stat. 27 Hen. 8, restraining tenants in tail from making unreasonable leases, much doubt arose what would satisfy the
a Post, cap. 11.
b Powd. 195.
c Vernon's case, 4 Rep. 3. d See 7 A. & E. 880.
e 1 M, & R. 72
f 3 New Cases, 400.
g 7 Dowl. 1, 2 M. & Rob.
h Griesley's case, 8 Rep. 41.
NOTE 18.-" Or " in its ordinary signification, corresponds to either meaning, one, or the other of the two; but not both. It is sometimes construed to mean “and” when such construction has been necessary to give effect to a clause in a will, or to some legislative provision, but never to change a contract at pleasure. Indeed, it seems to be an inaccurate expression to say that "or" can ever mean "and" It should rather be said, that for strong reasons, and in conformity with clear intention, 66 or" has been changed, or removed, and "and" substituted in its place. Douglas v. Egre. Gilp. 147, opinion of McLean J. in United States T. Railroad Bridge Co. Am. Law Reg. old series, vol. 3, p. 613. "And" cannot be construed to mean 64 or" in a penal statute, United States v. Ten cases of Shawls 2, Paine 162.
words“ rendering the old and accustomed rent.” If the ancient reservation were of the rent to be paid in gold, and the new reservation was to be paid in silver, it would not satisfy them. If a quarter of wheat was anciently reserved, and a new lease was made rendering eight bushels of wheat, this is all one in value and nature; et parum differunt que re concordant. Joining
quality, two several farms (always before let for 201. and 107.,) in one demise, rendering 301. entire rent out of both,-or letting parcel of a farm, rendering rent pro rata, were cases in which the lease was impeached, as being new rents and not the accustomed rent. But it was admitted in the case of two coparcaners, that one might let her moiety, yielding the moiety of the accustomable rent; for it would be hard that the forwardness of her coparcener should prejudice her of the benefit of a fine which she might have, by making of a lease of her moiety. And this was different from the case of the lease of part with reservation of rent pro rata, which is his own act. &c., &c. a
“Revoking a submission :” The words of the stat. 3 and 4 Wm. 4, c. 42, s. 39, are not large enough to take away the power of revoking a submission to arbitration in case of a reference on the trial of an indictment: but apply only to civil actions, R. v. Bardell, 619.
“Separate and distinct dwelling house:" See Reg. v. The Great and Little Useworth, and N. Buddich. b “ Separate and distinct tenements.” Reg. v. Ripon. c
Stage wagons :" What carriages will satisfy these words, see Reg. v. Ruscoe. d
Shipping for exportation :" These words are often used in a sense less extensive, than the exporting of commodities to foreign ports and places, and in the more restrained sense of carrying commodities from one port to another, within the kingdom. Barret v. Darlington Railway Company.e
“Subject to the laws and statutes now in force:" See R. v. Churchwardens of St. James Westminster.f
“Such :" The operation and effect of such, hujusmodi, has been before shown. Such in mischief and inconvenience.
“Such as have been heretofore usually rated :” These words refer not to legal rateability, but to rating in point of fact, and to the practice of rating in the particular parish not in the county generally. Reg. v. Rose. I
“Thereupon and thereby :" For the distinction between these terms, see Atkinson v. Raleigh. h
"Towards and unto :" See R. v. The Marchioness of Downshire. i a Cases of leases, 5 Rep. 5.
§ 5 A. & E. 399. b5 A & E. 361.
9 6 Q. B. R. 153. c See 7 Q. B. R. 225.
h 4 Q. B. R. 79. d 8 A. & E. 388.. • 2 M & G. 134
i5 A. & E. 232.
"Unless he shall have paid all such rates:" Payment of rates to entitle a person to be put on the burgess list of a borough under stat. 5 and 6 Wm. 4, c. 76, s. 9, must be a payment by the party's own act. Reg. v. The Mayor of Bridgnorth. a
"Undertaking:" The word is ambiguous. It may mean the speculation, or might be taken to include the land itself. b
"Unmarried:" in a will, "never having been married," Per Lord Alvanley in Maberly v. Strode.c
"Unmarried" by the legislature, 3 & 4 W. & M. c. 11, s. 7, 'not married at the time.' Bott's Poor Laws.
"Upon :" This word in most cases is used elliptically for upon condition of: as, "upon payment of costs:"-" Upon conviction
of an offender."
Upon" is sometimes used for after, within a reasonable time: Thus, "Roman Catholics may hold office upon taking certain oaths," 10 Geo. 4, c. 7, s. 14. "On admissions" in the case of copyholds.
"Upon"-construed "upon the occasion of," or "at the time of" admission. Reg. v. Humphery.d
"Usual covenants" does not mean universally inserted. "With" taken to mean " and as incident thereto." The Durham and Sunderland Railway Company v. Walker. e
The words of the stat. of enrolments, 27 Hen. 8, c. 16, are "within six months after the date of the same writings indented:" upon which it was adjudged that if such writings have a date, the six months shall be accounted from the date; if they have no date then from the delivery; and the day is exclusive. And "from the date," and "from the day of the date," are of one sense, since in judgment of law the date includes the whole day of the date. If a lease is to begin from the day of the making, or from the day of the date, the day itself of the date is excluded. But where the demise is limited to begin from the making, and where it was worded "to have and to hold for three years from henceforth," the day of the delivery was taken inclusive, and the day itself held parcel of the demise.
It has been held subsequently, that the words "from the day of the date" in a lease, mean either inclusive or exclusive, according to the subject-matter, and the court will construe them so as to effectuate the intention of the parties. g
"Wreck:" in stat. 3 & 4 Wm. 4, c. 52, s. 50, is not limited to goods forfeit after a year and a day under stat. Westminster 1. Barry v. Arnauld, h
The stat. 32 Hen. 8 c. 28, and 13 Eliz. c. 10, as to leases by
a 10 A. & E. 66.
b Doe dem. Myatt v. The St. Helen's Railway Company, 2 Q. B. R. 374.
c 3 Ves. 450.
d See 10 A. & E. 335.
e See 2 Q. B. R. 966.
ƒ Clayton's case, 5 Rep. 1.
g Pugh v. Leeds (Duke of) Cowp. 714
h 10 Adel. & Ellis. 646.
spiritual persons, "whereupon the accustomed yearly rent or more shall be reserved," are in pari materie, and must be taken together. To render a lease valid under this statute, it must be made of land which had been previously let, or on which some rent had been reserved. a
A similar construction was put upon nearly the same words in a power, as may be seen in Doe. dem. Bartlett v. Rendle, 3 M. & S. 99. See also Fuller v. Abbott, 4 Taunt. 105.
"Year," and "yearly hiring." A year is the time wherein the sun goes round his compass through the twelve signs, viz: 365 days and about six hours. But in leap year the statute 24, Geo. 2, Ch. 25, enacts that the year shall consist of 366; so that in the case of Rex. v. Wormingall, b upon a question of yearly hiring, Lord Ellenborough said: "In those years which consist of 366 days, a hiring and service for a year, must be for that same number of days, in like manner as when the year was 365 days; it must have continuance during that number.
a Doe. d. Tennyson v. Yarborough, Lord; 7 Moore 258, and 1 Bing. 24. b6 M. & S. 350.
THE BOUNDARIES OF LEGISLATION AND OF JUDICIAL INTERPRETATION SOUGHT TO BE ASCERTAINED: THE INSTANCES OF THE EXERCISE OF THIS BRANCH OF JUDICATURE IN OUR COURTS REVIEWED ; OF LEGITIMATE CONSTRUCTION AND OF INTERPRETATIVE LEGISLATION, IRRESPECTIVE OF CONSTITUTIONAL RESTRICTIONS.
"It is a remarkable fact, that in an enlightened age, and among so many intelligent inquirers into the philosophy, both of history and of law, so little attention should have been paid to the consideration of the important question,-What are the principles upon which the jurisprudence of a country ought to proceed? Certainty in the law, to a positive extent, is unfortunately unat tainable; immutability of laws, even if it were desirable (which it surely is not) is still more impracticable. An extensive alteration in the condition of the people,-a total change of circumstances, must, at any time, induce some change of institutions, and render absolutely necessary a sensible modification of the laws. Laws must be accommodated-or laws will accommodate themselvesto the growing necessities of mankind, and the varying state and condition of human society. "Comment enchainer l'action du temps? Comment s'opposer au cours des evenements, ou a la pente insensible des mœurs? Comment connaitre et calculer d'avance ce que l'experience seule peut nous reveler? La prevoyance peut-elle jamais s'etendre a des objects que la pensee ne peut atteindre?-Les hommes ne se reposent jamais; ils agissent toujours; et ce mouvement, qui ne s'arrete pas, et dont les effets sont diversement modifies par les circonstances, produit, a chaque instant, quelque combinaison nouvelle, quelque nouveau fait,—quelque resultat nouveau." a1
The term "legislation," though ordinarily restricted, in its signification, to the act of making a law, or a code of laws, is some
a Discours Preliminaire du premier projet du Code Civil, p. 20.
NOTE 1.-The following is believed to be a literal translation. "How arrest the action of time? How oppose the course of events or the insensible change of customs? How know and calculate in advance what experience alone can reveal to us? Can foresight ever extend to objects which thought cannot attain? Men never rest, they are ever active, and that movement which does not stop, and whose efforts are diversely modified by circumstances, produces every moment some new combination; some new fact; some new result."