clude some possible ground of misinterpretation of it, as

by the legislature to be There has been a dis

extending to cases not intended brought within its purview. (a) tinction in some of the books between a saving clause and a proviso in a statute, though the reason of the distinction is not very apparent. It was held by the barons of the exchequer, in the case of the Atterney General v. The Governor and Co. of the Chelsea Water Works,(b) That where the proviso of an act of parliament was directly repugnant to the purview of it, the proviso should stand, and be held a repeal of the purview, because it speaks the last intention of the lawgiver. It was compared to a will, in which the latter part if inconsistent with the former, supersedes and revokes it. In reference to this distinction Chancellor Kent has said: "But it may be remarked, upon this case of Fitzgibbon, that a proviso repugnant to the purview of the statute, renders it equally nugatory and void as a repugnant saving clause; and it is difficult to see why the act should be destroyed by the one and not by the other, or why the proviso and the saving clause when inconsistent with the body of the act, should not both of them be equally rejected."(c)

§ 654. Sometimes it happens, that a statute makes use of a word in one part of it, which is susceptible of two meanings, and in another part of the same statute the same word is used in a definite sense. In such cases, it is a rule of construction that it is to be understood throughout in that sense, unless the object to which it is applied, or the connection in which it stands, re

(a) Minis v. The United States, 15 Peters, 445.

(5) Fitzg. R. 195.

(c) 1 Kent, 462.

quires it to be differently understood in the two places.(a) But this rule is not to be applied to cases where, from the language of the act, to confine its use to a definite sense, will render any clause, sentence, or word superfluous, void, or insignificant.(6)

§ 659. It sometimes happens that a section is introduced into a statute, which appears a stranger to and unconnected either with the preamble, or to the general purview of the act, in such cases, but little aid is derived in its construction either from the preamble, or purview of the act. The rule of construction in such a case, as laid down in Bacon's Abr. Statute, I., is, that it must take effect according to its obvious meaning, independent of all influence from other parts of the law. And even if it be a part of the same subject, and either enlarges or restrains the expressions used in other parts of the same act, it must be interpreted according to the import of the words used, if nothing can be gathered from such other parts of the law to change the meaning. But if in this latter case general words are used, which import more than seems to have been within the purview of the law, or of other parts of the law, and those expressions can be restrained to others used in the same law, or in any other upon the same subject, they ought to be so restrained. What we have said in this chapter as well as in a previous chapter is all that is deemed necessary as illustrative of the rule in reference to the construction of statutes in pari materia.

(a) Den ex dem. James v. Dubois, 1 Har. N. J. R. 293.

(b) Ibid. 293.

CHAPTER XV.

OF AFFIRMATIVE AND NEGATIVE STATUTES.

§ 660. SOME statutes are, from their being in affirmative terms, called affirmative statutes; others obtain the name of negative statutes, because they are penned in negative terms. It is a maxim of the law, that an affirmative statute does not take away the common law. It is laid down as a rule in the Institutes; if a statute gives a remedy in the affirmative without a negative, expressed or implied, for a matter which was actionable at common law, the party may sue at the common law, as well as upon the statute, for this does not take away the common law remedy. (a) Thus, it has been held, that where a statute authorized the erection of a mill-dam upon one's own land, upon a creek or river which is a public highway, although it might protect the party from indictment for a nusance; if in doing it, he flow his neighbor's land, he is liable to an action, even though the act provides for a summary mode of appraising and paying the damages arising from such a consequence.(b) In the case cited the court held, that if there had been no express provision in the act for the payment of damages, the defendant would have been still liable to pay them; and the only effect of this provision was, to enforce the duty of making compensation by additional sanctions, as the grant or license might be avoided, if the defendant

(a) 2 Inst. 200.

(b) Crittenden v. Wilson, 5 Cow. 105.

should fail to pay the damages in the manner prescribed by the act. The effect of the grant was merely to authorize the defendant to erect a dam, as he might have done if the stream had been his own, without a grant. In that case he would have been responsible in damages for all the injury occasioned by it to others. It was not the intention of the legislature, by making it a condition of the grant, that the defendant should pay the damages which might result to third persons from his dam, to be ascertained in the manner pointed out in the act, to deprive those who might sustain injury of their remedy by action. Their object was to provide a summary remedy for those who might be injured by the dam, by which they might be remunerated more expeditiously and with less expense than by the ordinary course of law. But as there was nothing in the act which either in terms, or by necessary implication, made it compulsory upon those who might be injured to have their damages assessed under the act, or deprive them of their pre-existing common law remedy by action-as the act was not couched in negative terms, the remedy which it provided was merely cumulative, and not exclusive. The court based their decision upon the above rule laid down in the Institutes, which it cites, as the rule applicable to such a case. (a)

661. In another case(b) it was held, that where a new right is introduced by statute, the party complaining of its violation was confined to the statutory remedy, if one be prescribed. But that it would be otherwise where the right existed at common law, and an affirmative statute intervenes, inflicting a new penalty. The court said, if a statute is introductive of new rights

(a) See Beckford v. Hood, 7 T. R. 628. (6) Lang v. Scott, 1 Blackf. Ind. R. 405.

which did not before exist in the country, and prescribes the penalty for their violation, the persons claiming under the act, must depend for the security of the rights thus claimed upon the provisions therein specified. In the case last cited, the action was for erecting an unauthorized ferry within two miles of the plaintiff's ferry. The court held, that as the exclusive privileges of ferries were not known in that state until they were authorized by statute, and as the statute by which they were authorized prescribed a specific penalty for their violation, upon the provisions of the act the owners of the ferry must rely for the security of their rights, so far as the courts of common law were concerned.

§ 662. Almy v. Harris (a) was also an action on the case, for disturbing the plaintiff in the enjoyment of a ferry granted to Harris. It was held that the action would not lie. The act to regulate ferries within this state prohibited any person within certain districts from keeping or using a ferry, for transporting across any river, stream, or lake any goods or merchandise for profit or hire, unless licensed in the manner directed in the act, under a penalty of five dollars. If the plaintiff had possessed a right at common law to the exclusive enjoyment of this ferry, then the statute giving a remedy in the affirmative, without a negative expressed or implied, for a matter authorized by the common law, he might, notwithstanding the statute, have his remedy by action at the common law. But as he had no such right at common law, nor any right except that derived from the statute, consequently he could have no rights since the statute but those it gave, and must pursue his remedy under the statute.(b)

(a) 5 J. R. 175.

(b) See Bissel v. Larned, 16 Mass. R. 65.