mother to the marriage of persons under age (k). Statutes which authorise or require an Act to be done "upon" the occurrence of some event, furnish similar instances. "Upon," it has been said, "may undoubtedly mean before the act done to which it relates, or simultaneously with the act done, or after the act done, according as reason and good sense require the interpretation with reference to the context and the subject matter of the enactment” (1). Therefore where the Divorce Act gave the Court power to make an order for the permanent maintenance of a wife "on" any decree for dissolution of marriage, it was held that the Court had this power after decree, and need not exercise it only at the time when the decree was pronounced (m). Where an order to stop up paths might be made "on notice given," it was held that this meant after notice had been given (n). On the other hand where "upon the trial of any issue" leave to move might be given, it was held that this meant at the trial, and that leave could not be given three days afterwards (o). Another instance is supplied by certain Acts which make the production of some document "sufficient" evidence of the validity of a will, the nonpayment of money, the subscription of capital. (k) R. v. Hodnett, Inhabitants, 1 T. R. 96. (1) R. v. Humphery, 10 A. & E. at p. 370. (m) Bradley v. Bradley, L. R. 3 P. D. 47. (n) R. v. Arkwright, 12 Q. B. 960. See, too, Pier was held that (0) Folkard v. Met. Rail. Co., L. R. 8 C. P. 470. point v. Cartwright, L. R. 5 C. P. D. 139, where it "at the trial or hearing" does not mean within an hour and a half after judgment. It was held in two cases that the word "sufficient" meant prima facie evidence as opposed to conclusive, and that such evidence might therefore be rebutted (p). In another case, however, it was held that sufficient meant much more than this, and that such evidence was either conclusive in the absence of fraud, or could only be rebutted by very clear testimony (q). Even where there is no such variety of meaning, the rule which requires words to be understood according to the subject-matter of the statute must not be forgotten. Very great absurdity might be caused by giving words in one statute a sense which they would naturally and properly bear in another. Where the County Courts Act, 9 & 10 Vict. c. 95, authorised the removal of a clerk for "inability or misbehaviour," and a clerk was removed for inability, which proved to be inability to pay his debts, it was held that his removal was not authorised by the statute (1'). Where the Succession Duty Act, 1853 (16 & 17 Vict. c. 51), imposed a duty in the case of a person competent to dispose by will of a continuing interest," it was decided that the liability to this duty did not depend on mental capacity (s). The word "residence" in the Bills of Sale Act was construed with reference to the subject-matter of the Act, and the intention of the Legislature, which (p) Barraclough v. Greenhough, L. R. 2 Q. B. 1, 612; 7 B. & S. 170; 8 B. & S. 623; R. v. Fordham, L. R. 8 Q. B. 501. (q) Ystalfera Iron Co. v. Neath and Brecon Rail. Co., L. R. 17 Eq. 142, per Jessel, M.R. (r) R. v. Owen, 15 Q. B. 476. (s) Att.-Gen. v. Hallett, 2 H. & N. at p. 374. was that the person making a bill of sale should be found without difficulty (t). And in another Act the words "nature of the interest in lands," which prima facie would mean only the quality of the interest, were held to include the quantity as well (u). meaning affected by of circum stances? The meaning of words is sometimes rendered Is the uncertain by a change in the circumstances which of words existed at the time when an Act was passed. a change There may be a question whether words are to change their meaning from time to time, or are to retain a sense which may cease to be effectual. Where an Act spoke of "bread usually sold as French or fancy bread," it was held by two judges that this phrase did not mean bread usually sold as such when the Act passed (x). From this opinion, however, Hannen, J., dissented, and the view which he took was afterwards approved by Blackburn and Archibald, JJ. (y). In another case it has been held that where the "town of Rochdale" was mentioned in an Act, that phrase was not confined to the town which existed when the Act was passed, but included streets subsequently added (2). The general rule which has now been considered Exception is subject to one important exception. If the neral rule intention of the Legislature cannot be ascertained from the Act itself, we may properly have recourse to other methods of effecting that purpose. But there are very few legitimate guides to the interpretation of Acts of Parliament beyond the Acts (t) Blackwell v. England, 8 E. & B. 541. (u) Healey v. Thames Valley Rail, Co., 5 B. & S. 769. (y) Aerated Bread Co. v. Gregg, L. R. 8 Q. B. 355. to the ge of con struction. Where language Look to contem poranea themselves, and those which are legitimate must be followed with extreme caution. Where the language of an Act is doubtful in is doubtful. its meaning, and cannot be made plain by the help of any other part of the same statute, or of any Act in pari materia which may be read with it, or of the course of the Common Law up to the time of its passing, the Court may consider what was the construction put upon the Act when it first came into operation. The maxim which is so often quoted, "Contemporanea expositio est forexpositio. tissima in lege (a), fully bears out this proposition. "In construing old statutes," says Martin, B., "it has been usual to pay great regard to the construction put upon them by the judges who lived at or soon after the time when they were made, because they were best able to judge of the intention of the makers at the time" (b). So, too, it is said by Burke, C.J., delivering the considered judgment of the Exchequer Chamber of Ireland, that in expounding an ancient statute without the assistance of any decided cases on the subject, the Court should attend to the contemporanea expositio "to be discovered from what appears to have been done, or not done, upon the statute, and how it appears to have been understood and dealt with shortly after the Act had passed by the members of the legal profession who lived at or near the time" (c). (a) 2 Inst. 11, 136; 1 Kent's Com. 465, quoted by Crowder, J. Lord Fermoy's Claim to Vote, 5 H. L. C. at p. 747. (b) Morgan v. Crawshay, L. R. 5 H. L. at p. 315. (c) Att.-Gen. v. The Primate, 1 Jebb. & Symes, at p. 317. See by un The best evidence to show what was the construction adopted at the time when an Act was passed must necessarily be found in the decisions of the Courts, or in the works of writers of authority. But a very strong inference may also be Evidenced drawn from long uninterrupted usage, which is broken presumed to have commenced with the passing of usage. the Act in the absence of proof to the contrary. This position is maintained by Lord Brougham against the Lord Justice Clerk: "I cannot go along with his Lordship when for this reason he denies that usage, however long and inveterate, could be binding and operative on the parties. It can be binding and operative on the parties only as it is the interpreter of a doubtful law as affording a contemporary interpretation; but it is quite plain that as against a plain statutory law no avail. But this undeniable propousage is of any sition supposes the statute to speak a language plainly and indubitably differing from the purport of the usage. Where the statute speaking on some points is silent as to others, usage may well supply the defect, especially if it is not inconsistent with the statutory directions, where any are given; or where the statute uses a language of doubtful import, the acting under it for a long course of years may well give an interpretation to that obscure meaning, and reduce that uncertainty to a fixed rule: optimus legis interpres consuetudo, which is sometimes termed contemporanea expositio; and where you can carry back the usage for a century, also M'William v. Adams, 1 Macq. Scotch Appeals, at pp. 137, 145, per Lord Truro. |