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A Florida

conformity with the royal order of Spain of 1790, land 80 conceded; which condition never has it cannot be supported;" but immediately proceeds been complied with. to show, “though the royal order is recited in the grant, that it was, in fact, founded on the merito- 4th. That the concession, if ever made, being rious consideration of the petitioner having con conditional, and the conditions unperformed, it structed a machine of great value for sawing timber; the recital of the royal order of 1790, in this

was incumbent on the claimant to assign reagrant, is entirely immaterial, and does not affect sons sufficient for the nonperformance, which the instrument. Held, the recital of the royal or- | he has not done. der, in this case, is quite immaterial. The case of the United States v. Wiggins, (14

Mr. Gilpin. This is a claim for sixteen thouPeters, 325), which decided that certain proof of sand acres of land, on the west side of the River the certificate of Aguilar, Secretary of East Flori: St. Johns, founded on an alleged concession to da, was sufficient, cited ; and the decision on that Robert M'Hardy, by Governor Kindelan, dated point affirmed.

The Spanish governors of Florida had, by the 8th November, 1814. laws of the Indies, power to make large grants to The Superior Court of East Florida adjudged

of der of Spain of 1790 applied to grants to foreign the claim to be valid. The correctness of this

These large grants, before the cession of decree is contested by the United States, beFlorida to the United States, had been sanctioned cause there is not, as they allege, competent

of , thorities representing him in Cuba, the Floridas, evidence to establish the concession to M'Har. and Louisiana. This authority has been frequent. dy; and because, if the concession ever ly affirmed by the Supreme Court.

made, a legal title to the land conceded never An application was made to the Governor of accrued to the grantee. Florida in 1814, stating services performed by the petitioner for the government of Spain, and the I. The original concession of Governor KinIntention of the petitioner to invest his means in delan never has been produced. The sole evi. the erection of a water saw-mill; and marking the dence of it is an alleged copy, *certified [*132 place where the lands were situated which were asked for. The Governor granted the lạnd, refer. by Aguilar, the Governor's Secretary. The cir. ring to the merits and services of the applicant, cumstances under which copies thus certified

consideration of the advantages which will be admitted as evidence of a grant, have would result to the home and foreign trade by ine use proposed to be made of the land. Held, that been declared by this court, in the cases of this was not a conditional grant, and that no evi- The United States v. Percheman, 7 Peters, 84; dence of the erection of a water saw-mill was re

The United States v. Delespine, 12 Peters, 656; quired to be given to maintain its validity or induce its confirmation.

and The United States v. Wiggins, 14 Peters,

348. In the first, the court held that the origiPPEAL from the Superior Court of East nal must be produced, if either party suggested

its necessity; and in the second, there was diThe appellee, as assignee of Robert M'Hardy, rect evidence of the existence of the original. presented a petition to the judge of the Superi- In the last case, the court admitted the copy, or Court for the Eastern District of Florida, without any direct evidence to that effect; but claiming a tract of land containing sixteen on the express ground that the presumptive tes. thousand acres, situated in that district, on the timony of the existence of the original was west side of the River St. Johns, at a place very strong, and also that there was a survey where there is a spring and stream of fresh proved in conformity with, and referring to the water, formerly known by the name of “old original grant. It is admitted that if the evi. Stores.”

dence brings the present case within the rules The claim was alleged to be founded on a established in the case of The United States v. 131*) grant, dated November *8, 1814, by Wiggins, the concession is proved. But is such Governor Kindelan, the Spanish Governor of the fact? There was no survey made until East Florida. The claim was opposed by the 1819, nearly five years after the grant; and it United States.

was then made by a person other than the surThe Superior Court of East Florida decided veyor designated in the order of survey, and at in favor of the claimant, and the United States a place different from that named in the grant. prosecuted this appeal.

The proof that the order of survey was signed The case is fully stated in the opinion of the by Governor Kindelan is far from direct; the court.

signature is identified by a single witness only, It was argued by Mr. Gilpin, Attorney-Gen- and by him with some expressions of doubt. eral for the United States, Mr. Downing ap- II. But if the making of the concessions in peared as counsel for the appellee.

1814 by Governor Kindelan is established, had Mr. Gilpin contended that the decision of a title under it valid by the Spanish law acthe court below should be reversed, on the fol. crued to M'Hardy on the 24th January, 1818, lowing grounds:

so as to be ratified and confirmed by the eighth 1st. That the evidence in the case is insuffi. article of the treaty? 6 Laws of United States, cient to prove that the alleged grant or conces. 618; 2 White's New Rec. 210. The concession sion was ever made.

is “a square of five miles," granted, as it states, 2d. That if it be proved or admitted that the “in consideration," first, of the advantages alleged grant or concession was ever made, still, which will result in favor of the home and forthat the same was not in conformity to the eign trade of the province;" and, second, "in royal order of 29th October, 1790, by virtue conformity to the provisions of the royal order of which it is declared that the concession was of 29th October, 1790, in relation to the distri. made,

bution of lands to the new inhabitants." The 3d. That if it be proved or admitted that the first consideration, evidently has allusion to the alleged grant or concession was ever made, and statement of M'Hardy, in his memorial, that that it was in conformity to the royal order of "he intended to invest his means in the erection 29th October, 1790, still, that the same was of a water saw-mill, in consideration of the granted or conceded on the condition that the great scarcity of lumber in the province, both claimant should build a water saw-mill on the 'in regard to the home consumption and to the

Peters 15, purposes of commerce;" the second considera- | proper number of workers, then he would have tion refers, undoubtedly, to the claim to remu. acted in conformity to the royal order of 1790 neration arising from its merits and services, then the grant would have been valid, be133*] also *stated in his memorial; that is, cause one of its conditions would have been bis fidelity to the government during the re-complied with. bellious invasion of the province in 1812, and 2. It is, however, valid, although the prohis loss of a crop in that year. It is admitted visions of the royal order of 1790 were not com: that the saw-mill never was commenced, and plied with, if the other condition was executed that the land never was taken possession of, -if the water saw-mill was erected. Was this occupied, or cultivated.

done! It is admitted that it was not; and, to This grant is a mere concession; it is not a obviate the want of all evidence to that effect, complete and absolute grant; to make it so, it is argued that the terms of the grant do not further acts were necessary on the part of the imply that such erection is a necessary condiSpanish government and of the grantee; these tion: and that, under the decisions of this were, a compliance with the provisions of the court, such a grant is perfect without any such royal order of 1790, and with the promise to proof. That the terms of the grant imply such erect a saw-mill: both of these were conditions a condition is apparent from its face. It is annexed to the grant, and neither having been stated to be made “in consideration" of the adcomplied with, the grant is not valid.

vantages that are to result from such an estab1. The royal order of 1790, 2 White's New lishment; the allusion to the petitioner's merits Rec. 365, did not authorize the Governor of is not adduced as one of “the considerations" of East Florida to make such a grant as the claim the grant; they are not of a character to warant contends for. That order was issued, as it rant any donation, much less one of such undeclares, for the purpose of inviting foreigners usual magnitude; they are more than compeninto the province; but M'Hardy was not a for- sated by making him the grant, subject to the eigner. İt limited the quantity of land that provisions of the royal order of 1790 in regard might be granted to a fixed number of acres, to settlement and cultivation; any other grant, proportioned to the number of workers actually any possession of the land, unattended with a employed; M'Hardy employed no workers. An compliance with these provisions, was intended absolute grant of sixteen thousand acres to a to be coupled with this condition of building Spanish subject, who made no settlement, the saw-mill, which he proposed himself. In could not, therefore, be valid under the author. the cases of The United States v. Kingsley, 12 ity of the royal order of 1790. This point is Peters, 476, and of The United States v. Burdistinctly adjudged by this court in the case gevin, 13 Peters, 85, it was distinctly held that, of The United States v. Clarke, 8 Peters, 448. where there was a condition in the grant that There, the grant recited the royal order of 1790, a saw-mill should be erected, no title accrued and also that Clarke “had constructed, from without proof of its having been built. his own ingenuity, a certain machine” of great *It is true that in those cases the con. (*135 value. This court, passing upon the grant, dition was stated in the grant in terms more said that it was too plain for argument that, explicit than in the present case; but this if its validity depended on its being in conform cannot affect the principle established by the ity with the royal order of 1790, it could not be court. If there be a condition in the grant supported;" and they held it to be valid only itself, ascertained from its language, and because it did not depend upon that order, but evincing the intent of both parties at the on the other motives expressed in the grant. If time the grant was made, the particular lan. the same rule be applied, as it must be, to the guage in which the condition is couched is impresent case, then the claim of M'Hardy to material. The cases of The United States v. sixteen thousand acres cannot be valid under the royal order, but must depend on the other Clarke, 8 Peters, 448, and of the United States considerations stated by Governor Kindelan.

v. Segui, 10 Peters, 306, do not conflict with But it is submitted that the recital, in this these positions. In the former, the grant was grant, by Governor Kindelan, of the royal or

not in consideration of a saw-mill to be erected, der of 1790, was not superfluous or incorrect. but in consideration of the applicant having It is the inference drawn from that recital by already constructed, from his own ingenuity, a the claimant which is erroneous. The grant peculiar mill of great value. In the case of The 134*] does not purport to be *made "by virtue United States v. Segui, this court did indeed of” the royal order of 1790, which was applica- hold that where a grant was made in absolute ble especially, if not exclusively, to foreigners; property, they would not attach a condition, but it was made to a Spanish subject, "in con from the mere fact that the erection of a sawformity to the provisions” of that order; that mill had been stated as an inducement in the is, according to the regulations which required memorial; but it is evident, from the report of settlement and cultivation by a certain number that case, that this statement was merely in of workers. Under the power which the gove the memorial, and not repeated as "a considera. ernor possessed of making grants for services, he made this concession to M'Hardy for those tion” by the governor in the grant itself. In to which he had, in his memorial, called his at the present case it is otherwise; this consideratention; but as the grant was large, the gov. tion appears, not merely in the memorial, but ernor required that he should either comply in the grant; and besides, it is not, as Segui's with the provisions of the royal order, which was, a grant "in absolute property.” were recited in the concession, or erect a mill It is therefore submitted that the concession, which would be “favorable to the home and if ever made, was conditional; that the condi. foreign trade of the province.” Had the claim. tions are unperformed, and, therefore, that the ant settled the tract, and placed upon it the grant is not valid.

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Mr. Justice Wayne delivered the opinion of erty, the square of five miles of land in the the court:

designated place, without prejudice to a better The decree of the court below confirms the owner, and for the attainment of which, let the title of the appellees to a square of five miles secretary's office issue to him a certified copy of of land, situated in the place known under the this expedient and decree, which in all events denomination of Apprecile Spring, opposite the will serve to him as a title in form. old store of the house of Messrs. Panton & Les

Kindelan.” lie, called Hamlet.

It is contended, on the part of the United The claim is founded upon a concession to States, that the decree should be reversed upon Robert M'Hardy, dated the 8th November, three grounds: 1814. The memorial for the grant, and the 1. That the evidence in the case is insuffi. grant, are as follows:

cient to prove that the alleged grant or conces. “His Excellency the Governor:

sion was ever made. "Don Roberto M'Hardy, an inhabitant of The evidence is a certificate from Aguilar, this province, with due respect represents to Secretary of the government of East Florida, your Excellency, that since the month of July, the same as that to be found in The United 186*] *1803, when he came to it and was States v. Wiggins, 14 Peters, 345, which the admitted under the protection of His Catholic court held to be sufficient proof of the grant. Majesty, whom may God preserve, he flatters The second objection is, that if it be proved bimself with having the honor of having been or admitted that the grant was made, still it is selected and preferred to others of his class for) void; because it is not in conformity to the holding commissions of the government, the royal order of the 29th October, 1790, by virtue truth of which is well known to your Excel of which, it declared the concession was made. lency; and moreover, for the same reason of his That royal order will be found in 2 White's fidelity in the year 1812, when said province was New Rec. 365. It is contended that, under invaded by some rebellious inhabitants thereof, the order, grants can only be made to foreignyour petitioner was arrested by them and de- ers, and that the number of acres granted must tained prisoner for the space of twenty-nine be in proportion to workers. The argument is, days, in consequence of which violence, he suf- professing to be made under the royal order, if fered the loss of all his crop, and other damages the grant is not in accordance with it, it is and losses to a great amount, which he does not void; and The United States v. Clarke, 8 Pemention, as they are well known to your Ex. ters, 448, is cited to sustain the objection. The cellency. In consideration of which, and your authority has been mistaken. The court do petitioner wishing to repair in some measure say in that case, "if the validity of the grant his said losses, he intends to invest his means in depends upon its being in conformity with the the erection of a water saw mill, in considera- royal order of 1790, it cannot be supported." tion of the great scarcity of lumber in this But it immediately proceeds to show, though province, both in regard to the home consump- the royal order is recited in the grant, that it tion and to the purposes of commerce; and as

was in fact founded upon a meritorious con. it is necessary for that purpose to obtain a sideration of the petitioner having constructed suitable position as is the place known under a machine of great value for sawing lumber. the denomination of Apprecile Spring, opposite The court say: "We cannot think that the rethe old store of the house of Messrs. Panton & cital of a fact, entirely immaterial, on which Leslie, called Hamlet, therefore your petitioner | fact the grant does not profess to be founded, supplicates your Excellency be pleased, in con- can release an instrument making other consideration of the merits he has obtained, and of siderations on which it does profess to ('138 other circumstances in his favor, to grant him be founded, if the matter, as recited, be suffi. in absolute property a square of five miles in cient to authorize it. Without attempting to the location designated, and which is vacant; assign motives for the recital of that order, we which favour he hopes to receive from the jus- are of opinion that in this case the recital is tice of your Excellency.

quite immaterial, and does not affect the in"St. Augustine, of Florida, on the eighth strument. The real question is, whether Gov. of November, one thousand eight hundred and ernor Coppinger had power to make it;" and fourteen.

Robert M'Hardy.so it must be said that the recital of the royal

order in this case is quite immaterial. The

petitioner for the grant asks for it, reciting "St. Augustine, of Florida, eighth of No services and fidelity to the government in time vember, one thousand eight hundred and four of a rebellion; his imprisonment and loss of teen.

property to a great amount, in consequence of "Whereas, the merits, services, and other it; "all of which," he says, "are well known to circumstances which the interested party ex your Excellency.” In consideration of which, poses in this representation, are well known to he further states, that, to repair his losses, he me, in consideration of the advantages which intends to invest his means in the erection of a will result in favour of the home and foreign water saw-mill; and then asks his Excellency, trade of this province, and also in conformity in consideration of his merits, and other cir. to the provisions of the royal order of the cumstances in his favor, to grant him, in abso187'] *twenty-ninth of October, one thousand lute property, a square of five miles, in the eight hundred and ninety, communicated to place designated in his petition. this government by the Captain-General of the The governor's decree, upon that petition, Island of Cuba, and of the two Floridas, in re- first recites the merits and services of the Detilation to the distribution of lands to the new tioner, which he says are well known to him; inhabitants, I have come to the determination and then says, in conformity with the royal or of granting to the petitioner, in absolute prop. I der of October, 1790, he grants him, in absolute

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property, the square of five miles. Now, if it | dence in this case, as it should have done, thio
be the fact that the governor had the power to court will direct a survey to be made at the
make a larger grant than the quantity recited place designated in the decree, for the number
in the royal order, which was applicable to a of acres decreed, without prejudice to the rights
particular class of persons, foreigners; it will of third parties.
not be contended, because he says "in conformi. *This cause came on to be heard on [*140
ty to the royal order," that these words shall the transcript of the record from the Superior
control a larger grant, made to one who was not Court for the District of East Florida, and was
a foreigner, but a subject of His Catholic Majes- argued by counsel; on consideration whereof,
ty: particularly when it is stated the consider it is adjudged and decreed by this court that
ations of the grant are the merits and losses of the decree of the said Superior Court in this
the grantee. That the governor had the power cause, so far as it declares the claim of the
to make the larger grant, cannot be denied. It petitioners to be valid, be, and the same is
is to be found in the laws of the Indies, in the hereby affirmed in all respects; and that a sur-
various regulations under which they granted vey be made of the lands contained in the said
lands in Florida for more than forty years; concession, according to the terms thereof, for
sanctioned by the King of Spain, and the au. the number of acres, and at the place therein
thorities representing him in Cuba, the Flori- designated; provided it does not interfere with
das, and Louisiana. The power of the governor the rights of third parties. And it is further
in this respect has been frequently affirmed by ordered by the court that a mandate be issued
the decisions of this court, in cases growing out to the surveyor of public lands, directing him
of claims to land under the eighth article of the to do and cause to be done, all the acts and
treaty with Spain.

things enjoined on him by law, and as required
The third objection against affirming the de. by the opinion and decree of this court in this
139*] cree is that the grant was made upon case; and that this case be remanded to the
condition that the grantee should build a water said Superior Court, for further proceedings to
saw-mill on the land granted, which condition be had therein, in conformity to this decree,
has never been complied with; and that it was and the opinion of this court, which must be
incumbent on the claimants to assign reasons annexed to the mandate.
why this condition was not performed.

A careful perusal of the memorial will show it certainly was not the intention of the memorialist to make the building a mill the induce. *THE UNITED STATES, Plaintiffs ['141 ment to the grant, but his merits, services,

in Error, imprisonment, and loss of property. When, too, the governor, in the grant, precedes his SAMUEL W. DICKSON et al., Defendants in declaration of the advantages which will result


Error. in favor of the home and foreign trade, by an acknowledgment of the petitioner's merits and Commissions of receiver of public money-conservices; it certainly cannot be inferred from

struction of act of Congress by treasury the first that it was the sole consideration which

officials not conclusive on judiciary. induced the governor to make it. If it be not so, then it cannot be said that the grant would

Samuel W. Dickson was appointed a receiver of only be perfect upon the performance of a con public money for the Choctaw district, Mississippi, dition precedent: because another consideration and entered on the duties of his office on the 220 or inducement for making it is given, requiring ! until the 26th July, 1836, when he resigned it. He

ld the office nothing to be done by the petitioner. Indeed, received more than two hundred and afty thousfrom these expressions of the governor in the and dollars of public money, in each year, during

the two years of his continuance in otuce ; and, ai grant, no condition can be inferred. They are

so, more than two hundred and fifty thousand dola mere recital; and if condition could be im lars during the portion of the year commencing on plied, it would be so inconsistent with an abso- the 220 November, 1835, and ending on the 26th lute grant in terms, that it could not for a

July, 1836. He claimed, under the act of Congress

relating to the compensation and salaries of remoment have any weight against it. But the ceivers, a compensation of one per cent. on the sum objection is not new in this court. The point of two hundred and ifty thousand dollars in each has been directly decided in The United States year; and also a commission of one per cent. on

the money received during the fraction of the year, v. Segui, 10 Peters, 306. The claim in that not exceeding, with the salary of five hundred dol.

was founded upon a grant of sixteen lars, three thousand dollars, in the fraction of the thousand acres, in consideration of services to

last year. The United States claimed to limit the

commissions and salary to the fiscal year, from the Spanish government, and for erecting ma: January 1 to December 31, annually: and denied chinery for sawing timber. The court say: "It his right to more than a portion of the commishas been suggested by the Attorney-General slons on the money received by him, limiting the that though there was no express condition in Held, that the receiver was entitled to charge bis the grant, one was implied from the considera commissions on the whole sum received by him in tion in part being the erection of a saw-mill. the part of the year he was in office; the same not But we cannot attach any condition to a grant thousand dollars.

exceeding with his salary, the amount of three of absolute property, in the whole quantity. The receiver was entitled to calculate his yearly It was exclusively for the governor to judge of

NOTE.--Provisos in Statutes. the conditions to be imposed on his grant. He The office of a proviso is, generally, either to exappears to have considered the services of the cept something from the enacting clause, or to reappellee a sufficient consideration, and made strain its generality, or to exclude some possible

ground of misinterpretation of it, as extending to the grant absolute."

cases not intended by the legislature to be brought T'he decree of the court below is affirmed. But within its purview. 'Minis v. U. S. 15 Pet. 423. as ihe court rejected the survey given in evi.! then in force, does not confirm State laws contain

A clause in an act of Congress saving State laws



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commission on the amount of public money re- entitled to two thousand five hundred dollars
celved by him during a year commencing from the
date of his appointment, instead of calculating It

by the fiscal year, which commences with the cal- To this charge of the court the United States
endar year, on the first day of January in every excepted, and prosecuted this writ of error; a
year. He had a right to charge the whole yearly
maximum of commissions for the fractional por ing been given, conformably to the opinion of

verdict and judgment for the defendants hav. he

this court.

The case was argued by Mr. Birchard and N error to the Circuit Court of the United Mr. Gilpin, Attorney-General, for the United sippi.

ants. Samuel W. Dickson, the defendant, was ap- Mr. Birchard, for the United States, conpointed by the President of the United States, tended that the court erredreceiver of public money for the Choctaw dis- 1st. In allowing the receiver to calculate his trict, in the State of Mississippi, and entered yearly commission on the amount of public on the duties of his office on the 22d November, money received in a calendar year, commen: 1833, and retained the office, performing the cing with the date of his appointment, instead duties thereof, until the 26th July, 1836, hav- of the fiscal year fixed by law. ing on that day resigned the same.

*2d. In allowing the receiver the (*143 The United States claimed a large balance whole yearly maximum of two thousand five as due to them, and the defendant paid, in hundred dollars of commissions for the fracNatchez, the whole sum alleged to be due by tional portion of the year in which he rehim, with the exception of the items charged signed. 142"] to him in the "treasury transcript, In this case the accounting officer settled which were the subject of controversy in this the accounts, as is required by law, quarterly;

the last quarter of each year terminating on A suit was instituted by the United States the 31st day of December, annually. on the official bond of Samuel W. Dickson and The instruction given to the jury by the his sureties, in May, 1839, in the District Court court below makes his first year commence on of the United States for the Southern District the 22d day of November, 1833, and end twelve of Mississippi, in which the United States months thereafter; and so of the succeeding claimed certain sums of money received by years. The fractional period, which it treats Samuel W. Dickson, as receiver, and not paid as a full year, begins November 22d, 1835, and over to the United States. These sums were ends July 26th, 1836. It treats the terms used claimed by the defendant, and had been re- in the statute, “any one year," as any period of tained by him as his official compensation for time, equal to twelve calendar months, whether the annual period of his service in the office, it consists of portions of any two fiscal or cal. from the 22d November, 1833, and for the endar years. It disregards the beginning of fraction of the last year in which he was in quarters, weeks, or months, and has no referoffice, commencing on the 22d November, 1835, ence to the accounting days by quarters, or and ending on the 26th July, 1836; during the fiscal year established by law, and recogwhich latter period he had received public nized by Congress and the department from money exceeding in amount two hundred and the first establishment of the treasury to the fifty thousand dollars.


present time. On the trial of the cause the court charged It is respectfully submitted that the entire the jury that the defendant Dickson was en legislation of Congress shows that the terms titled to credit for three thousand dollars as “any one year," when used in reference to the compensation, including his salary of five hun subject of accounting, import that portion of dred dollars for the year commencing Novem time intervening between the 1st day of Januber 22, 1833, and ending November 22, 1834; ary and 31st day of December; and that to that he was entitled to the same compensation give the phrase, as used in the Act of 20th for the year commencing November 22, 1834, April, 1818, 3 Story, 1710, any other meaning, and ending November 22d, 1835; and for the or such a meaning as will make it embrace any fraction of the year between the 22d Novem- twelve consecutive months, composing parts ber, 1835, and the 26th July, 1836, he was of any two years, will subvert the design of ing a provision Impairing the obligation of con- The office of a proviso, is either to except sometracts but merely leaves them to operate, so far as thing from the enacting clause, or to qualify or coustitutionally they may, in the cases specified in restrain its generality, or to exclude some possible the saving clause. Sturgis V. Crowningbield, 4 ground of misinterpretation of its extent. Minis wheat. 122.

v. U. S. 15 Pet. 445; Boon v. Jullet, 1 Scammon's, It was held by all the barons of the Exchequer I. R. 258. that where the proviso of an act of Parliament In construing, a proviso may be limited to the was directly repugnant to the purview of it, the general scope of the enacting clause to avoid re proviso should stand, and be held a repeal of the pugnancy, 19 Vermont, 129. purview, because It speaks the last intention of the in Saving Institution v. Makin, 23 Me. R. 360, law-glver. It was compared to a will, in which the it was held, that a saving clause in a statute, in latter part, If inconsistent with the former, super- the form of a proviso, restricting in certain cases sedes and revokes it. The Attorney-General v. the operation of the general language of the enact. The Governor and Co. of Chelsea Water-Works, ing clause, was not void, though the proviso be re. Fitz. R. 195.

pugnant to the general language of the enacting There is also a technical distinction between a

The true principle undoubtedly is, that proviso and an exception in a statute. If there be the sound intepretation and meaning of the statan exception in the enacting clause of a statute, it ute, on a view of the enacting clause, saving clause must be negatived in pleading ; but if there be a iind proviso, taken and construed together, are to separate proviso, that need not, and the defendant prevail. If the principal object of the act can be must show it by way of defense. Spieres v. Parker. accomplished and stand, under the restriction of 1 Term, 141; 1 Barn. & Ald. 99 ; Thibault v. Gib- the saving clause or proviso, the same is not to be son, 12 Meeson & Welsby, 88, 740.

held void for repugnancy.


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