provision was not limited by the interpretation clause, and that such a declaration need not be made before a justice of the peace for the county where the lands to be taken were situated (e).

used to

not to

In other cases it has been considered that the "Include " Legislature has intentionally given words a more extend, extended meaning than they would ordinarily define. receive. The interpretation clause sometimes provides that a certain word shall "include " a variety of things, and it is then held that this phrase is used by way of extension, and not as giving a definition by which other things are to be excluded (f). Thus where the Merchant Shipping Act, 1854 (17 & 18 Vict. c. 104), provided that "ship" should include every description of vessel used in navigation not propelled by oars, it was held that a vessel propelled by oars was not excluded (g). It was declared by the Petroleum Act, 1868 (31 & 32 Vict. c. 56), that “petroleum” should include all such rock oil, &c., as gave off an inflammable vapour at a temperature of less than 100 degrees Fahrenheit. But petroleum itself was held to be within the Act, even if it did not give off an inflammable vapour below the specified temperature (h). To all such cases the words used by Blackburn, J., in reference to the Metropolis Management Act, 1855 (18 & 19 Vict. c. 120),

(e) Davies v. South Staffordshire Rail. Co., 2 L. M. & P. 599; 21 L. J. M. C. 52.

(f) R. v. Kershaw, 6 E. & B. at p. 1007; 26 L. J. M. C. at p. 23, per Erle, J.

(g) Ex parte Ferguson, L. R. 6 Q. B. 280, 291.

(h) Jones v. Cook, L. R. 6 Q. B. 505.

have a forcible application. "It does not follow that because the expression 'new street' is to include certain other things, we are to say it does not include its own natural meaning" (i) So, too, the Lands Clauses Act (8 & 9 Vict. c. 18) provided by the interpretation clause that the word sheriff in the Act should include under-sheriff. Section 39 enacted that where a warrant was issued to assess compensation, and the sheriff was interested in the matter in dispute, application was to be made to the coroner. It was held, however, that if the under-sheriff was interested in the matter in dispute, the warrant was to be issued to the sheriff and not to the coroner (k). Again, the Public Health Act, 1848 (11 & 12 Vict. c. 63), contains an interpretation clause by which the word "street" is to apply to and include any highway not being a turnpike road. It was held that a way which would properly be described in ordinary language as a street did not cease to be a street because it was part of a turnpike road, for the interpretation clause was not restrictive, but enlarged the ordinary meaning of the word street (1).

Saving

PROVISOES, SAVINGS AND EXCEPTIONS.

The saving clauses, provisoes, and exceptions, clause and which are often contained in the sections of Acts

proviso

(i) Pound v. Plumstead Board of Works, L. R 7 Q. B. at p. 194.

(k) Worsley v. South Devon Rail. Co., 16 Q. B. 539.

(1) Nutter v. Accrington Local Board, L. R. 4 Q. B. D. 375.

identical.

of Parliament, next demand our attention. There apparently does not appear to be any real distinction between a saving clause and a proviso. Each of them is, as Bayley, J., says of the latter (m), “something engrafted on a preceding enactment." Each is "merely an exception of a special thing out of the general things mentioned" in the statute (n). Each is "a limitation or exception to a grant made or authority conferred, the effect of which is to declare that the one shall not operate or the other be exercised unless in the case provided" (o). The office of each is to except some particular case from a general principle where from peculiar circumstances attending the case there would be some hardship if it were not excepted (p); to qualify, restrain, or otherwise modify the general language of an enacting clause, or to exclude some possible ground of misinterpretation that might exist if cases which the Legislature did not mean to include were brought within the statute (q).

distinction

them.

While, however, these principles seem to apply Suggested equally to a proviso and to a saving clause, so that between the two things might be considered identical in substance and differing only in name, one very marked distinction is made between them by some of the early writers. It is said that "where the

(m) R. v. Taunton, St. James, 9 B. & C. at p. 836.

(n) Halliswell v. Corporation of Bridgewater, 2 Anderson, at p. 192. (0) Voorhees v. Bank of U. S., 10 Peters, at p. 471.

(p) Huidekoper's Lessee v. Burrus, 1 Washington Circuit Court Reports, at p. 119.

(q) Wayman v. Southard, 10 Wheaton, at p. 30; Minis v. U. S., 15 Peters, at p. 445, per Story, J.

Importance and effect of proviso.

proviso of an Act of Parliament is directly repugnant to the purview, the proviso shall stand and be a repeal of the purview, as it speaks the last intention of the makers" (r). On the other hand, we are told that a saving clause directly repugnant to the purview is void; "as if the manor of which J. S. is tenant in fee simple is given to the King saving the estates of all persons, the estate of J. S. is not saved, because it would make the express gift to the King void" (s); and where the attainder of the Duke of Norfolk was declared to be void, saving the leases made by King Edward the Sixth, that saving was held inoperative (t).

A proviso is of great importance when the Court has to consider what cases come within the enacting part of a section (u), and it is always to be construed with reference to the preceding parts of the clause to which it is appended (x). Thus where the 28th section of the 7 & 8 Vict. c. 96, ended with a proviso that no debtor should be imprisoned on any process for more than twelve calendar months for any debt incurred before the filing of his petition, in case a final order for protection from process was refused, it was held that this did not refer to all cases where the final order was refused, but only to such cases of refusal as were suggested in the preceding part of the section (y). The mere fact, indeed, that a proviso was printed as part of (r) Att.-Gen. v. Chelsea Waterworks, Fitzgibbon, 195.

(s) Case of Alton Woods, 1 Rep. at p. 47.

(t) Walsingham's Case, Plowd. at p. 565.

(u) Baines v. Swainson, 4 B. & S. at p. 278, per Wightman, J. (x) Ex parte Partington, 6 Q. B. at p. 653.

(y) Ex parte Partington, 6 Q. B. 649.

any one section did not, at the time when statutes were not divided into sections upon the roll, limit the effect or construction of the proviso (2). "The question whether a proviso in the whole or in part relates to and qualifies, restrains, or operates upon the immediately preceding provisions only of the statute, or whether it must be taken to extend in the whole or in part to all the preceding matters contained in the statute, must depend, I think, upon its words and import, and not upon the division into sections that may be made for convenience of reference in the printed copies of the statute" (a).

saving

enlarge

words.

Where an enacting clause which is general in Proviso or its language and objects is followed by a proviso, cannot that proviso must be construed strictly (b). It enacting cannot enlarge the words of the enacting clause, and therefore a proviso to the effect that ships of war belonging to the Crown should not pay a toll granted in respect of lighthouses, did not render other ships belonging to the Crown liable to pay that toll (c). "A saving clause," said Wood, V.-C., "cannot be taken to give any right which did not exist already. 'Saving' means that it saves all the rights the party previously had, not that it gives him any new rights" (d). If a substantive enactment is expressly repealed, anything which is

(2) R. v. Threlkeld, Inhabitants, 4 B. & Ad. at pp. 235, 236; Wells v. Iggulden, 3 B. & C. at p. 189, per Bayley, J.

(a) R. v. Newark, Inhabitants, 3 B. & C. at p. 71, per Holroyd, J. (b) U. S. v. Dickson, 15 Peters, at p. 165, per Story, J.

(c) Smithett v. Blythe, 1 B. & Ad. 509.

(d) Arnold v. Mayor of Gravesend, 2 K. & J. 574, 591.