law-makers could not possibly set down all cases in express terms" (p). "It is by no means unusual in construing a statute," says Alexander, C.B., "to extend the enacting words beyond their natural import and effect in order to include cases within the same mischief where the statute is remedial" (q). But though the practice of extending statutes by equity has been sanctioned in these and other cases (), it has been visited by some judges with words of censure and warning. It is said by Bayley, J., to be "a dangerous rule of construction to introduce words not expressed, because they may be supposed to be within the mischief contemplated" (s). And Lord Tenterden, C.J., says: "I think there is always danger in giving effect to what is called the equity of the statute, and that it is much better to rely on and abide by the plain words, although the Legislature might possibly have provided for other cases had their attention been directed to them" (t).

mon with

statutes.

Lord Westbury has cautiously restricted the Most comequitable construction of statutes to those of early ancient date, speaking of it as "a mode of interpretation very common with regard to our earlier statutes, and very consistent with the principle and manner according to which Acts of Parliament were at

(p) Co. Litt. 24 b.

(q) Dean and Chapter of York v. Middleborough, 2 Younge & Jervis, at p. 215.

(r) Comyn's Digest, tit. Parl., R. 13, 15; Eyston v. Studd, Plowd. 465, 467, cited and approved by Pennefather, C.J., in Murphy v. Leader, 4 Ir. Law Rep. at pp. 143, 144.

(s) Guthrie v. Fisk, 3 B. & C. at p. 183.

`(t) Brandling v. Barrington, 6 B. & C. at p. 475.

that time framed" (u). Most of the instances in which Acts have been extended by equity are to be found in the old books, or in decisions upon comparatively early statutes. It is stated in Plowden's Reports that "all statutes made for the redress of false covin and to give a speedier remedy to right are in advancement of justice and beneficial to the public weal, and therefore shall be extended by equity" (x). Again: "Where an Act is made to remedy any mischief, there in order to aid things in like degree one action has been used for another, one thing for another, one place for another, and one person for another;" and therefore the patentees of King Edward the Sixth were held to be within the equity of words describing the patentees of King Henry the Eighth (y).

Many instances of extension by equity are given by Lord Coke. Thus, because Acts which give a remedy for wrongs done are to be construed equitably, the Statute of Marlebridge (52 Hen. III. c. 29) gives abbots an action for trespass to trees, under the words habeant actiones ad bona ecclesiæ suæ repetenda (2). In Westminster the First (3 Edw. I. c. 40) the word "ancestor" is extended by equity so as to include predecessor (a), and in c. 42 of the same statute the word "tenant" is extended to tenant in law as well as tenant in deed (b). West

(u) Hay v. Lord Provost of Perth, 4 Macq. Sc. Ap. at p. 544. (x) Wimbish v. Tailbois, Plowd. at p. 59.

(y) Hill v. Grange, Plowd. at p. 178.

(~) 2 Inst. 152.

(a) 2 Inst. 242. (b) 2 Inst. 249.

minster the Second (13 Edw. I. c. 18), giving the writ of elegit, provides that the sheriff shall deliver the chattels of the debtor and one half of his land. This, being a beneficial law, is extended by equity to every other immediate officer to every other Court of Record (c). So, too, statutes speaking only of lands and tenements are extended to uses (d). It has also been held that the 4 Edw. III. c. 7, which gives executors an action for trespasses against their testators, is to be extended by equity to actions for any injury done to the personal estate of a testator in his lifetime, such as an action for the conversion of goods, for a false return, for an escape, for the removal of goods taken in execution before payment of a year's rent (e). The 31 Eliz. c. 5, provided that penal actions, where the forfeiture was to the sovereign, were to be brought within two years; where "to the Queen and to any other which shall prosecute in that behalf,” within one year by such prosecutor. It had been suggested in an early case that the Act did not apply where an informer was to have the whole penalty, "because it is not within the words of the Act, and penal Acts are not extendible by equity" (f). But when the question came before the Court of Exchequer at a much later date, it was held that the Act was to be so extended (g).

(c) 2 Inst. 395.

(d) Co. Litt. 272 b; Corbet's Case, 1 Rep. at p. 88 a.

(e) See Wheatley v. Lane, 1 Wms. Saund., by Sir E. V. Williams, pp. 244, 245, where the cases are collected; Emerson v. Emerson,

1 Vent. 187; Mr. Justice Moreron's Case, 1 Vent. 30.

(f) Chance v. Adams, 1 Ld. Raym. 77.

(g) Dyer v. Best, 2 H. & C. 189.

R

Language

of statutes

The Statutes of Limitations, 21 Jac. I. c. 16, and 4 & 5 Anne, c. 16, have both received an equitable construction. The 4th section of the first Act provided that, if judgment for a plaintiff was reversed in error or arrested, or if a defendant was outlawed and reversed the outlawry, the plaintiff and his heirs, executors or administrators, might commence a new action within a year. It was held that "within the equity" of this section, where an action abated by the death of a plaintiff, his executor or administrator might bring a fresh action within a reasonable time, and that, where a defendant died, a fresh action might be brought against his administrator (). The 19th section of the second Act provided that, if any person or persons against whom a cause of action existed, or any of them, were beyond the seas, the Statute of Limitations should not commence to run until their return. Where one joint contractor died abroad, it was held that the statute did not begin to run until his death, and that, within six years from his death, an action might be brought against his cocontractors, for though such a case was not within the literal words of the section it was within their equity (i).

In all these instances the language employed by restrained the Legislature was extended by equity so as to by equity. include cases which were not within the words of the statutes, but were within the mischief intended to be remedied. Where, however, a case was

(h) Curlewis v. Lord Mornington, 7 E. & B. 283; note to Hodsden v. Harridge, 2 Wms. Saund., 64 a.

(i) Towns v. Mead, 16 C. B. 123, 134, 141; 24 L. J. C. P. 89.

within the words of the statute, but was not within its mischief, the statute was restrained by equity. The 55 Geo. III. c. 192, recited that inconvenience had arisen from the necessity of making surrender of copyhold estates to the uses of wills, and enacted that dispositions made by wills should be as valid without surrender as if a surrender had been made. It was held that the inconvenience to be remedied was the necessity of a formal surrender, and that the Act did not extend to a case where a surrender was a matter of substance, such as the surrender required to give effect to the will of a married woman, who must have been examined apart froin her husband before she could effectually surrender (4).

penal

The term Penal Statutes, when it is employed What are for the purpose of describing such Acts as are to statutes. receive a strict construction, is not confined to statutes that create crimes or impose penalties, but extends to a variety of others, which may be more properly classed as restrictive. Acts which introduce capital punishment (1), or which shift the burden of proof in criminal cases (m), may be fitly called penal, and construed with extreme strictBut it has been also laid down that a strict construction is to be given to Acts which alter the law of evidence, either by creating new statutory modes of proof, which may defeat the rights of parties (n), or by weakening the principles which

ness.

(k) Doe d. Nethercote v. Bartle, 5 B. & Ald. 492, 501.

(1) R. v. Harvey, 1 Wils. 164.

(m) Clarke v. Crowder, L. R. 4 C. P. at p. 643, per Byles, J. (n) Nothard v. Pepper, 17 C. B. N. S. at p. 50, per Eilo, C.J.