Technical Words.-When technical words occur in a statute, they are to be taken in a technical sense, unless it appears that they were intended to be applied differently from their ordinary or legal acceptation.*

So, when legislating upon subjects relating to courts and legal process, we are to consider the Legislature as speaking technically, unless from the statute itself it appears that they made use of the terms in a more popular sense. Thus, where a statute directed that the coroner should serve process where the sheriff was "a party," it was held that he must be technically a party, and that being interested in the suit was not sufficient. So, where a Massachusetts statute in regard to flowing lands declared that a judgment should be "final," it was held that this phrase was to be taken in its technical sense. Where a Massachusetts act declared that no license to an administrator to sell the real estate of his intestate for the payment of debts, should be in force for a longer time than one year, it was said "that though the popular sense may be the true one where the act of the Legislature does not relate to a technical subject, yet it being the object to limit the time of sales and prevent estates from being kept open longer than is necessary, the legal sense seems the proper one;" "and it was held that, there being in a legal sense no sale till the deed was delivered, the deed must be delivered within the year." |

In regard to the word "robbery," used in an act of the United States, Mr. Justice Washington has said, "If a statute of the United States uses a technical term which is known, and its meaning fully ascertained by the common or civil law, from one or the other of which it is obviously borrowed, no doubt can exist that it is necessary to refer to the source whence it is taken for its precise meaning." Where the word "supersede" was used in a militia act, the Supreme Court of Massachusetts. said, "The only way to ascertain the sense of the Legislature in using the word, is to learn the military sense in which the

larged," per Story, J., Martin v. Hunter's Lessee, 1 Wheat. 326; Clark v. City of Utica, 18 Barb. 451.

* 1 Kent Com. 462; Clark v. City of Utica, 18 Barb. 451.

+ Merchants' Bank v. Cook, 4 Pick. 405.

Snell v. Bridgewater Cotton Gin Manufacturing Co. 24 Pick. 296. See this case also as to repeals by implication.

Macy v. Raymond, 9 Pick. 286.
The United States v. Jones, 3 Wash. C.

C. R. 209.

word is commonly used; for in the enactment of laws, when terms of art or peculiar phrases are made use of, it must be supposed that the Legislature have in view the subject-matter about which such terms or phrases are commonly employed."

It has been said that courts of justice are presumed to understand the meaning of technical terms in a statute, and that experts need not be called to interpret them. But in practice I should suppose this assumption would be found to be very erroneous, and that it would be frequently necessary for courts to inform themselves by testimony as to the meaning of terms. of art or science.

A question has been raised whether the same.words in any one statute can receive different meanings, according to a doc trine applied to wills; | (a) but the Chief Justice of the King's Bench has said, "We disclaim altogether the assumption of any right to assign different meanings to the same words in an act of Parliament, on the ground of a supposed general intention in the act. We think it necessary to give a fair and reasonable construction to the language used by the Legislature; but we are not to assume the unwarrantable liberty of varying the construction, for the purpose of making the act consistent with any views of our own." On this subject Vattel says, "It does not follow, either logically or grammatically, that because a word occurs in a sentence with a definite sense, that therefore the same sense is to be adopted in every sentence in which it occurs.'

We have thus considered the object to be attained in the

*Ex parte Hall, 1 Pick. 261, 262. Fashion v. Wards, 6 M'Lean, 52.

We have but little idea now of the nicety of the early English law, in regard to words; and the difficulty was then increased by the use of a foreign and a dead language. So in assize of nuisance, "The plaintiff counts that exaltavit domum, the jury finds that erexit,and exception taken to it; but the court was informed by the grammarians that the words were of one sense." Giles v. Ferrers, Cro. Eliz. 59. So see Gerrard v. Dickinson, Cro. Eliz. 196, for the distinction between talis and

eadem. Again in Hopkins v. Stapers, Cro. Eliz. 229, that ad and in are of the same effect; and in The Warden of All Souls v. Tanworth, Cro. Eliz. 232, it is decided that Elemosynam ought to be Eleemosynam, with a double e: "The common course is so, therefore it is good."

Forth v. Chapman, 1 P. Wm. 667; Crooke v. De Vandes, 9 Vesey, 197; Elton v. Eason, 19 Vesey, 77.

Reg. v. Comrs. of Poor Laws Holborn Union, 6 A. & El. 68, 69.

** Vattel, Book 2, ch. 17, p. 285.

(a) A word used in an amendatory statute is presumed to be used in the same sense as in the statute amended. Robbins v. Omnibus R. R. Co. 32 Cal. 472.

process of judicial interpretation, and of the means to be employed. We shall in our next chapter consider a large class of cases, already referred to, where, either from the impossibility of resolving the doubts presented by a statute on the principle of discovering its intent, or from the hardship or peculiarity of the particular matter presented, the judges have been led rather to assume the duties and powers of legislators. We shall inquire how far this exercise of power is legitimate or proper; and under this head we shall examine the subjects of liberal or equitable, and of strict construction.

It is proper here to remark that in considering the subject of this chapter, the mind of the student will frequently be called to the analogies between the construction of statutes and the interpretation of wills. Those analogies are numerous and striking; * but on the other hand, there are many and equally striking discrepancies. Among these latter, the rules governing the evidence to be admitted to explain ambiguities in wills, the arbitrary principles that have been adopted for their construction, and the vague discretion exercised by the courts under the name of the doctrine of cy près,t are very prominent. I have thought it inexpedient to enlarge this work to the extent which would have been necessary in order fully to exhibit the relations between the two great classes of subjects. (a)

I believe that many of the greatest judicial minds have been misled, if I may say so pace tantorum virorum, by these analogies. In Gore v. Brazier, 3 Mass. 523 & 541, Parsons, C. J., says, Certainly the statute ought to have a construction as beneficial to creditors, as a devise to executors of an authority to sell lands for the payment of debts." This

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seems to assume the power of construing statutes beneficially, or in other words, on grounds of equity or policy, a subject which we shall consider in our next chapter.

For the doctrine of Cy Près, see Story, Eq. Jur. § 1169, et seq. [See also, Wigram & O'Hara on Wills, part 2, ch. II.]

(a) In the following note we have arranged under appropriate heads, according to the leading thought of each rule, a number of recent decisions bearing upon the general rules of interpretation and construction. This method will be more convenient for the reader or the practitioner, than to have broken up the material into a number of short notes, and to have distributed it over a larger space. The order of arrangement, and the leading subjects of the divisions, will be indicated by the displayed headings.

Fundamental and General Principles.-The rules of construction and interpretation of acts of Congress, and of statutes of State Legislatures, except where, in regard to the latter, the State Constitutions otherwise determine, are to be derived from the common law. Rice v. Railroad Co. 1 Black, 358. Construction should lean toward

personal liberty, and statutes authorizing arrest, etc., are to be strictly construed. Elam v. Rawson, 21 Geo. 139; Ramsey v. Foy, 10 Ind. 493. It is said that where a statute is ambiguous, that construction should be given which is most favorable to the public. Haydon v. Supervisors, &c. 2 Nev. 371; but this cannot be so where the law purports to interfere with private rights of property or person, on the basis of any assumed public need or public governmental function, for it is clearly settled that all such statutes must be strictly construed, and the benefit of all reasonable doubts and ambiguities must be given to the individual proprietor or possessor of the right. An intent to change an existing law should clearly appear, Lee v. Forman, 3 Metc. (Ky.) 114; and this applies as well whether the existing law is statutory or the law promulgated by judicial decision. As a plain corollary of this general rule, statutes should not be so construed as to interfere with rights previously granted by the Legislature, unless the intent to do so is clear. McAfee v. Southern R. R. 36 Miss. 669.

Common and Technical Terms; Interpretation of Particular Terms.-Technical legal terms, as a general rule, and in the absence of any countervailing intent which displaces the rule, are to be taken in their established common-law signification; thus a statute giving dower in lands of which the husband was seized, does not include a contingent remainder, Apple v. Apple, 1 Head (Tenn.) 348; but this rule, although very general, may be overcome by other considerations, and even without any express statement of a contrary intent; e. g., in a statute using the phrase "in an action of debt," there was no express statement of a meaning other than the commonlaw one, but as there was no such technical action known to the procedure of the State, and as a technical interpretation would have destroyed the plain design of the statute, it was held that the phrase was not used in its legal sense, but meant any action to recover money for the breach of a contract. Robinson v. Varnell, 16 Tex. 382. In another case, the word "heirs" was held to mean those inheriting according to the existing laws of the State, and not those inheriting at the commonlaw. Mace v. Cushman, 45 Me. 250. This decision is not in conflict with the general rule just stated, for the technical legal sense spoken of means such sense according to the law of the State in which the statute is passed, and, in the absence of other rules, that sense is a common-law one; but if the original common-law signification of the phrase or term had been previously changed in the particular State by legislation or by judicial decision, of course the legal meaning thus determined is to be taken as the one which the Legislature intended and adopted in the statute. A term in use in English law, employed in a statute without any definition, is to be construed as it is understood in the English law, e. g., "next of kin" was held to include only legitimate persons, McCool v. Smith, 1 Black, 459; but a very important limitation should be added to this statement of the rule, namely, that the term employed in the statute has not prior thereto received, either by legislation or by judicial decision, a meaning within the particular State, or the United States, if the statute was passed by Congress, different from that given to it by the English law. If the term had previously received such different meaning, then it is to be interpreted according to that new meaning, although the statute in which it occurs is silent as to its meaning; this is an obvious corollary of the principle stated above.

Words in common use, when found in a statute, are to be taken in their ordinary sense, and technical words in their technical sense, unless as respects either a contrary intent plainly appears; but the real obvious intent is to prevail over any mere literal sense; thus "house of another," in a statute against breaking and entering, was held to mean only the mansion and the houses so connected therewith, as to

form in law part and parcel thereof. Neville v. State, 7 Cold. 78. That the ordinary and popular signification is to be taken, except as to terms of art, which are to be interpreted in their technical signification, and that the meaning of terms and words is to be ascertained from the whole statute, and is to be such as will best carry out the general intent, and that where a word is used in a particular sense in one part of a statute, it will be presumed to be used in the same sense throughout, and that when the words "house" and " branch" (speaking of a Legislature), in a Constitution are generally used to denote a duly constituted quorum, they will be so construed where, in another clause, a two-thirds vote of such "house" or "branch" is required. See Green v. Weller, 32 Miss. 650. If two acts are in pari materia, the second one being in effect amendatory of the first, a word in the second will not be presumed to be used in a different sense from that in which it is used in the first. Robbins v. Omnibus R. R. 32 Cal. 472.

The ordinary and popular meaning of words is to be preferred. Mayor, &c. v. Winter, 29 Ala. 651; Schrifer v. Wood, 5 Blatch. C. C. 215; thus "internal improvements," used in a statute conferring power upon a municipality in their aid, is not to be construed as merely improvements internal to the town. Ibid.; and see Parkinson v. State, 14 Md. 184; and "wagon" does not include a hackney coach," Quigley v. Gorham, 5 Cal. 418; and "connection " of railroads was held to mean such arrangement that freight and passengers could be conveniently passed from one to the other by transition of cars or otherwise. Philadelphia, &c. R. R. v. Catawissa, &c. R. R. 53 Penn. St. 20.

Ambiguous words are to be interpreted by comparing therewith the context of the whole statute, and by considering its reason, spirit, and cause. State v. Judge, &c. 12 La. Ann. 777; and the law is to be construed as a whole. State v. Weigel, 48 Mo. 29. A statute which treats of things of an inferior degree, cannot ordinarily be extended by general words to things of a higher degree; but where all the actions of an inferior degree were provided for in express terms, and there were general words in addition, it was held that they covered an action of a higher degree, which was within their scope. Ellis v. Murray, 28 Miss. 129. It is not so much the abstract meaning of words which is to be regarded, but the sense in which they are used in the particular statute, and this is to be ascertained from the context. McIntyre v. Ingraham, 35 Miss. 25. See further as to technical terms, Ormsby Co. v. State, 6 Nev. 283.

Grammar and Punctuation.-Common sense should prevail over strict grammatical rules, and punctuation should not control. Gyger's Estate, 65 Penn. St. 311. The punctuation of a statute is not to be considered. Cushing v. Warrick, 9 Gray, 382; Hamilton v. Steamboat Hamilton, 16 Ohio, N. S. 428. A clause purporting to define the meaning of "obligation or other security of the United States," as used in other parts of the act, was construed as applying to the terms “ obligation" and "security" actually used, the phrase as quoted not being in fact found in any other part of the statute. U. S. v. Rossvally, 3 Ben. (U. S.) 157.

General Scope of the Statute.-Words are to be interpreted with reference to the general scope and object of the statute. Thus a statute creating a city out of a part of a town, and providing for its organization, etc., and adding that after a certain day it should cease to be a part of the town, was construed to mean that such separation should only occur on the completion of the organization; although the clause providing for such separation on the given day was in itself not limited, it was construed as limited by the rest of the statute. State v. Button, 25 Wisc. 109.

The construction of any particular clause, as well as of an entire statute, should