saturating, the mind with judicial decisions, and with that learning tempered by sagacity which so eminently distinguishes the English and American tribunals.

By the act of 51 George III. c. 36, it was declared that no person named as a justice of the Cinque Ports, should be authorized to act, unless he had taken and subscribed certain oaths, and delivered at some general sessions a certain certificate. A person appointed justice had taken the oath, but had filed no certificate; it was held nevertheless that the effect of the statute was only to make it unlawful for the justice to act, and not to render his acts invalid.* It was there said, "many persons acting as justices of the peace in virtue of offices in corporations, have been ousted from their office from some defect in their election or appointment; and although all acts properly corporate, and officially done by said persons are void, yet acts done by them as justices, or in a judicial character, have in no instance been thought invalid."

Again, it has been said, that the words of a statute are not to be construed so as to extend beyond the mischief contemplated by the act, where such construction would be injurious to third persons. So, where an English statute directed in regard to ecclesiastical leases, that all leases therein specified should be utterly void and of none effect, to all intents, constructions, and purposes; yet, upon the ground that the object of the statute was to prevent the impoverishing of the successor, it was held that a lease by a dean and chapter, though within the act, was good during the life of the dean.†

* Margate Pier Co. vs. Hannam, 3 B. & Ald., 266. This case, as is evident, was decided mainly on the argumentum ab inconvenienti, or general policy. + Edwards vs. Dick, 4 B. & Ald., 212.

So, where an English statute, 26 Geo. III. c. 60, § 17, declared that a bill or other instrument of sale of a vessel, which did not recite the certificate of registry, should be utterly null and void to all intents and purposes, it was held that where a bill of sale transferred a ship by way of mortgage without reciting the certificate of registry, the instrument should be treated as void so far forth as it was meant to convey the property in the ship; but that the mortgagor might be sued upon his personal covenant in the instrument for the repayment of the money lent.*

So, an English statute, 9 Anne, c. 14, § 1, declared that all notes, &c. given for money won at gaming, shall be utterly void, frustrate, and of none effect, to all intents and purposes whatsoever. Notwithstanding this strong language, it was held that a draft accepted for a gaming debt by the loser, and passed by the winner as endorser for a valuable consideration to a third party was good as against the winner and endorser, on the ground that otherwise a gross fraud would be committed.t

An English statute (2 Geo. III. c. 19, § 1, and 39 Geo. III. c. 34), enacts that no person shall upon any pretense whatsoever take, kill, or have in his possession any partridge, between the first day of February, and the first day of September. The defendant had partridges in his possession several days after the first of February; the King's Bench refused to construe the statute according to its plain letter, because, as they said, it might lead to the absurd consequence, that a party who should

* Dwarris, p. 638, & 639.

but

Edwards vs. Dick, 4 B. & Ald. 212. This seems to be decided on the equity of the particular case.

on the last moment of the first of February kill a partridge, would be guilty of an offense by having the same partridge in his possession at the earliest moment of the second of February.*

The statute 46 Geo. III. § 4, enacts that every person who shall appraise any estate, real or personal, in expectation of any hire or reward, shall be deemed an appraiser within the act. In construing it, Lord Ellenborough admitted "that if those words are to be construed literally, the consequence will be that every person who in one single instance only, shall happen to make a valuation, must without regard to circumstances be subject to the appraisers' duty;" and on the ground of the inconvenience and hardships of such construction, held that it was to be limited to the persons who pursued the calling or occupation of an appraiser.†

A statute, 5 & 6 Wm. IV. c. 50, § 98, conferred a power of certifying for the costs of a special jury, on the court before which an indictment should be "preferred." This was held to mean "tried," on the ground that if the words were taken as they stood, it would be determined that the legislature had been guilty of a very great omission; for in a great majority of cases it was known that the indictment is preferred before a different court from that by which it is tried.

By an English statute (8 & 9 Wm. III. c. 70), it was declared that no servant should gain a settlement in any parish, unless he should continue and abide in the

* Simpson vs. Unwin, 3 B. & Adol. 134.

† Atkinson vs. Fell, 5 Maule & S. 240, 241.

Rex vs. Upper Papworth, 2 East, 413. Reg. vs. Pembridge, 12 Law J. (1843), part 2, Q. B. 47; contra Reg. vs. Preston, 7 Dowl. P. C. 593. It is to be noticed that the corresponding clause in a former act, 13 Geo. III., c. 78, § 65, used the word "tried," instead of "preferred." Dwarris, 592.

same service for one whole year. But a constructive service, pursuant to a hiring for a year, has been held to confer a settlement; though this interpretation has been repeatedly regretted.*

So, on a statute declaring that a judge's certificate that an action was really brought to try a right, must be given immediately after the verdict is delivered, it has been held, that the word "immediately" does not mean as soon as ever the verdict is delivered, but that the judge must necessarily have some little time for reflection.+

So, "null and void" have been construed to mean "voidable." "It is extraordinary," said Lord Denman, "that there should be cases in which it has been held that the words, 'null and void,' should not have their usual meaning; but the word void has certainly been construed as voidable, when the proviso was introduced in favor of the party who did not wish to avoid the instrument."

In this country, many cases exhibiting the same laxity of construction are to be found. A Massachusetts statute declared all usurious mortgages utterly void; but the court held that this meant void only as against the mortgagor and those holding under him, and that a usurious mortgage could not be avoided by a mere

* Dwarris, p. 608.

+ Thompson vs. Gibson, 8 Mees. & Wel. 288. Page vs. Pearce, 8 Mees. & Wel. 677. But see Grace vs. Clinch, 4 Q. B. 606, and Shuttleworth vs. Cocker, 1 M & G. 829.

Pease vs. Morrice, 2 A & E. 94. See also Reg. vs. Inhabitants of Fordham, 11 A. & E. 83. See also Reg. vs, Justices of Leicester, 7 B. & C. 6. Reg. vs. Inhabitants of Birmingham, 8 B. & C. 29. The King vs. Inhabitants of St. Gregory, 2 Ad. & Ell. 99. Rex vs. Inhabitants of Hipswell, 8 B. & C. 466. Gye vs. Felton, 4 Taunt. 876. Barber vs. Dennis, 1 Salk. 68. Crosley vs. Arkwright, 2 T. R. 605. Dwarris, pp. 606, 639, & 640.

stranger or trespasser.* So, in the same State, the sta tute of wills provided that all persons, of full age and of sound mind, might dispose of their real estate, as well by last will and testament in writing, as otherwise by any act executed in his or her lifetime. But this language was held not to include married women, on the ground that it was not the design of the legislature to alter the relation between husband and wife, or the legal effect of that relation.†

So, where a statute gave treble damages against any person who should commit waste on land pending a suit for its recovery, the court held that the act did not apply to a party wholly ignorant that any suit was pending, saying, "We can hardly suppose the legislature intended to punish so severely, a trespasser wholly ignorant of the pending of the suit. The statute is highly penal, and should therefore be limited in its application to the object the legislature had in view."+

* Green vs. Kemp, 13 Mass. 518; affd. in Commonwealth vs. Weiher, 3 Met. 445. In Smith vs. Saxton, 6 Pick. 483, where a statute prohibited sheriffs from filling up process, and declared that "all such acts done by them should be void," an attempt was made to have the word read voidable; but it was defeated.

+ Osgood vs. Breed, 12 Mass. 530; Wilbur vs. Crane, 13 Pick. 284.

In Vermont, where it was provided by one section of an act, that if an attorney should knowingly receive a greater sum for fees than provided for by law, he should pay a tenfold penalty, and the next section declared that if any officer or other person should receive any greater fees than provided for by law, he should pay a penalty,-it was held that the word knowingly was to be construed as incorporated in the latter section; and in regard to another section of the sam eact it was said, "The necessity of the case compels us to include these additional words, at the expense of forcing the construction of the words of the act, in order to avoid so gross an absurdity as the literal interpretation would lead us into." Henry vs. Tilson, 17 Verm. 479, 486, 487. See also The Schooner Harriet, 1 Story, 251, 255, where a word in one section was inserted in another by construction.

Reed vs. Davis et al. 8 Pick. 516, 517.