had been served at the last place of abode of the putative father, it was held that they had jurisdiction in a case where the latter was abroad, and had had no cognizance of the summons (a). The Carriers Act, which exempted a common carrier from liability for the loss of or injury to certain classes of goods unless the value was declared and insured, was construed literally as exempting him from liability, even when the loss was owning to his negligence (b). The Common Law Procedure Act of 1854, which empowered a judge to order cither party to a cause to produce documents, upon the application of the other party supported by his own affidavit was held not to authorize an order on the affidavit of another person in its stead (c). [So, under a statute requiring the deed of a feme convert to be acknowledged by her, she cannot acknowledge by attorney in fact; nor can the magistrate, required to take her acknowledgment, take it through a sworn interpreter."] So, the Solicitors Act, 23 & 24 Vict. c. 127, s. 28, which authorises the imposition of a charge for cost on property recovered or preserved through the instrumentality of a solicitor, was held not to authorize such a charge, where the suit was to prevent or stop an invasion of the right to light; for this was a suit not respecting property, but respecting an easement merely, or the mode in which it was enjoyed (b); nor to a case where proceedings had not gone beyond a decree for an account, and the parties had then compromised without the knowledge of the solicitor of the party who thereby did recover property (e).

61

§ 13. [In obedience to the rule in question, the Supreme Court of the United States refused to modify, by a construction which would have read an act as if a succeeding

(a) R. v. Damarell, L. R. 3 Q. B. 769. See also R. v. Davis, 1 Bail C. C. 191, 22 L. J. M. C. 143; R. v. Higgins, 7 E. & B. 557, 26 L. J. M. C. 116. Comp. R. v. Smith, L. R. 10 Q. B. 604.

(b) Hinton v. Dibben, 2 Q. B. 646 Morritt v. N. E. R. Co., 1 Q. B. D. 302.

(c) Christopherson v. Lotinga, 15 C. B. N. S. 809; comp. Kings

ford . G. W. R. Co., 33 L. J. C. P., 307, 16 C. B. N. S. 761.

Dawson v. Shirley, 6 Blackf. (Ind.) 531. 52 Dewey v. Campan, 4 Mich.

565.

(d) Foxon v. Gascoigne, L. R. 9 Ch. 654.

(e) Pinkerton v. Easton, L. R. 16 Eq. 440.

9954

section preceded the one next before it, the language of the statute, which, read in the order of its clauses, presented no ambiguity, although it resulted in what was termed by dissenting members of the Court an absurdity, viz., the giving of an intestate's estate, not to his next of kin, but to his brothers and sisters, instead of his own children." By adopting the construction which would have read the fifth section as preceding the fourth, "instead of adjudicating," says Mr. Justice. Swayne, "we should legislate. Our function is to execute the law, not to make it." And following the same rule of literal construction, it was held that the phrase "and have the casting vote" gave the chairman to whom it applied a casting vote, in addition to his previous vote as a member upon the same question, i. e., a double vote in case of a tie." Again, where an act providing for the manner in which a person charged in execution. might obtain his liberation from imprisonment, required that notice should be served "on the creditor or creditors, if he, she or they are within the Commonwealth," the court decided that notice must be served on all such creditors, though such construction was admittedly attended with great inconvenience where creditors were numerous. And in the provision of a statute for the improvement of swamp lands upon a petition by owners, the phrase "the greater part of them in interest" was construed, according to its plain meaning, as referring to that portion having the greatest interest in point of value, regardless of the question of area.

67

56

§ 14. [So, under an act which declared that all policies of life-insurance or annuities taken or to be taken out for the benefit of, or bona fide assigned to, the wife, or children, or other dependent relative, should be vested in such beneficiary free and clear from all claims of the creditors of the insured, it was held that the question of bona fides could only arise in cases of assignments, and 'that the title of the

53 Poor v. Considine, 6 Wall. 458. 54 Ibid. Compare, on the subject of transposition of clauses, State v. Turnp. Co., 16 Ohio St. 308; and see post, § 318.

65 People v. Church, 48 Barb. (N. Y.) 603.

66 Putnam v. Longley, 11 Pick. (Mass.) 487.

Henry v. Thomas, 119 Mass.

beneficiary, when existing by force of original issue in the name or for the benefit of such beneficiary must be deemed irrespective of any question of good faith." A provision in a statute that "all laws and parts of laws now in force, relative to the sale of vinous or spirituous, malt or brewed liquors, or any admixture thereof, in the county of A., or any part thereof, be and the same are hereby repealed,” repealed as to the county of A. all general and special laws respecting such sale in force in said county, except those for which the act itself provided; it repealed, e. g., the general law prohibiting the sale of intoxicating liquors on Sunday." An act authorizing the transfer of judgments generally from one county to another for the purpose of lien, permitted the transfer of a judgment, for that purpose, which had been opened by the court of the county, in which it was originally entered, and as to which an issue had been awarded by said court, and defendant let into a defence." An act providing that "any borrower" might contract for the payment, in addition to interest, of "any and all sums assessed or to be assessed for taxes upon the loan or its interest," applies as well to municipal corporations as to other corporations and individuals." Under an act abolishing imprisonment for debt, a judgment or decree for the payment of costs incident to a suit founded upon contract, and not involving a breach of trust, e. g., the payment of master's fees in an equity proceeding, was held unenforceable by attachment against the person of the defendant." An act authorizing the filing of mechanics' liens in certain cases, against leased estates, applies whether the lease be oral or written." Under an act providing that real estate sold by the sheriff shall be held and enjoyed by the purchaser, his heirs and assigns, as fully and amply, and for such estate or estates as the defendant had therein, the omission of words

58 McCutcheon's App., 99 Pa. St. 133.

59 Com'th v. Gedikoh, 101 Pa. St. 354.

60 Kittanning Ins. Co. v. Scott, 101 Pa. St. 449; though, of course, no execution could be issued on the transcript, during the pendency

of the proceedings on the original judgment: Ibid.

61 Fidelity, &c. Co., v. Scranton, 102 Pa. St. 387.

62 Pierce's App., 103 Pa. St. 27. Comp. post, § 74. Wood v. Wood, Phill. L. (N. C.) 538.

63 Mountain City, &c. Ass'n. v. Kearns, 103 Pa. St. 403.

of inheritance in the sheriff's deed does not limit the estate conveyed to the purchaser." An act authorizing a corporation to assess upon each share of stock such sums of money as the stockholders think proper, not exceeding, in the whole, the original par value of the stock, confers the power to make such assessments upon stock the full par value of which has been already paid by the subscriber." Under an act giving a reward to "whosoever shall pursue and apprehend any person who shall have stolen any mare," etc., the owner of such animal, who pursues and apprehends the thief that stole it, is entitled to the reward." Upon the same principle of construction an act making the property of the county of B. in the township of C. liable to road-taxes in said township, did not subject to such taxation the real estate owned in said township by the "Directors of the Poor, etc., of the county of B.," a corporation created by statute for purposes relating to the poor of said county. "It certainly does not matter that the money used for the purchase of the land and the erection of the buildings was raised by assessments made by the County Commissioners, for the money thus raised was intended for the use of the poor district, and the municipality known as B. County had no interest in or control over it or the property it was used to purchase.'

99 67

15. [So, again, power given by statute to purchase "any property," gives power to purchase real and personal property." And an act disposing of state property, excepting that portion "known as the government reservation," excep ted all lands known by that name, whether the reservation had any legal existence or not." In another case, the court refused to read "no" for "an" in the absence of positive proof of error furnished by the original enrolled bill." Under a statute providing that "an action may be brought by any person in possession. against any person who

64 Middleton v. Middleton, 106 Pa. St. 252.

65 Price's App., 106 Pa. St. 421. See to similar effect, as to liability of stockholders under Wis. R. S. 1769. Sleeper v. Goodwin, 67 Wis. 577.

"Butler Co. v. Leibold, 107 Pa. St. 407.

67 Cumru Township v. Poor Directors, 112 Pa St. 264.

68 De Witt v. San Francisco, 2 Cal. 289.

69 People v. Dana, 22 Cal. 11; Blane v. Bowman, Id. 23.

10 Angele de Sentmanat v. Soulè, 33 La. An. 609.

claims an estate. . therein. . adverse to him, for the purpose of determining such adverse claim," etc., it was held that any interest claimed adversely to the plaintiff might be determined, whether claimed from the same source from which the plaintiff claimed, or from a different one." Where à statute prescribes as the punishment for an offense, fine and imprisonment, the court is bound to inflict both upon the party convicted."]

§ 16. [Again, where an act directed that "the unpaid balance" "of $664,300" on the sale of certain railroads, "together with all interest that might accrue thereon," be appropriated to building a branch road between certain termini, and the unpaid balance upon the sale referred to was, in point of fact, $674,300, it was held, that, the language being plain and unequivocal, it could not be controlled by any presumed intention to appropriate the whole balance, and that, therefore, a mandamus would not lie against the State to enforce the payment of the difference of $10,000 between the actual balance and the sum named as such in the Act." So, under an Act providing that a demand exhib ited within two years might be proved within three years, although it was clear that three was substituted for two by mistake, the court refused to construe away the plain meaning of the language as it stood." So, again, where it was evident that, in copying from an earlier act, the words "other than the county," before the word "from," had been omitted in the requirement of fifteen days' notice of a motion to amerce the sheriff of any county from which the execution is issued," the court declined to depart from the obvious meaning of the language used, by interpolating the omitted words." An act entitling widows and orphans of testators and intestates to a reasonable support and maintenance out of their estates, for a period of twelve months. immediately after the death of such, was held to apply equally whether the estates thus drawn upon were solvent

11 Walton v. Perkins, 33 Minn. 357.

72 U. S. v. Vickery, 1 Har. & J. (Md.) 427. S. P.. Com'th V. Shade, 1 Woodw. (Pa.) 44.

73 St. Louis, etc. R. R. Co. v.

Clark, 53 Mo. 214.

14 Hicks v. Jamison, 10 Mo. App. 35. And see Pacific v. Seifert, 79 Mo. 210.

75 Woodbury v. Berry, 18 Ohio St. 456.