ing partner of the deceased, though the testimony might result in establishing a contract with the firm. A New Jersey statute makes void and of no effect any warrant of attorney for confessing judgment which shall be included in the body of any bond, bill or other instrument for the payment of money. This provision was contained in an act which when passed was entitled "An act to regulate the practice of the courts of law." It was therefore held that it was a mere regulation of the practice in the courts of that state, and did not prohibit the making therein of such warrants of attorney for use in other states in the form that may be legal in their courts. "Laws," by construction, have been narrowed to mean only written laws, as in the application of that provision of the thirty-fourth section of the judiciary act of 1789, that "the laws of the several states, except when the constitution, treaties or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at common law in the courts of the United States, in cases where they apply." + 5 In Holmes v. Paris the statute required a notice to a surveyor, or some municipal officer, of a defect in a highway, for a period not less than twenty-four hours prior to an accident, to render the town liable. But if the defect was caused by the surveyor while acting as a servant of the town, the notice was not necessary. The court say: "We incline to the opinion that the statute does not apply to a case such as this. In its literal terms, it does; in its purpose and intent, it does not. This particular provision of the statute was intended for another class of cases. Its purpose is to allow a town a reasonable opportunity to remove a defect after receiving information of its existence. Notice of a fact to a person who already knows the fact cannot be useful. Statutes are often in some respects literally deficient by reason of their generality. They are necessarily expressed in general terms. Bennett v. Frary, 55 Tex. 145; v. Tabb, 18 Wall. 546; Supervisors v. Whart. Ev. § 469. 2 Rev. of 1877, p. 81, § 1. Schenck, 5 id. 772; Watson v. Tarpley, 18 How. 517; Delmas v. Ins. Co. 3 Hendrickson v. Fries, 45 N. J. L. 14 Wall. 665. 555. 4 Swift v. Tyson, 16 Pet. 1; Boyce 575 Me. 559. All cases that may arise under them cannot be anticipated. Therefore there must be some flexibility in their interpretation and application to facts. There must be some power and discretion in the courts to consider probable purposes, motives and results." The object of an act was to provide for the disposition of public property and not to interfere with the location of streets; it was therefore held that the designation therein of one of the boundaries of that property as the "eastern line of E street to its point of intersection with the northern line of J street," was not intended, and did not operate to extend E street northward to J. A statute against gaming was that, "if any person shall lose to another," he might receive it back. This was held not applicable to one who sets up or is interested in setting up a faro bank, and loses money to those who bet against the bank.? "When the evil," say the court, "which led to the passage of the act is considered, it is evident that the legislature did not intend to embrace within its protection those who engage in gaming by means of contrivances which are only used by those who make gaming a business." A statute of Indiana required an official bond to be signed and acknowledged by the principal and his sureties in the presence of the county commissioners. The question arose whether a bond not so acknowledged was valid. The requirement was held directory. It had been decided that the surety of an officer executing an official bond upon the faith of a promise by the principal that it would be executed by another as surety, and allowing the principal to have the custody of the bond, would be discharged if the bond were tendered by the principal, and in good faith accepted, without being executed by that other. It was merely to remedy the mischiefs to the public which were apprehended in consequence of the law as thus declared, and such as might ensue from the forgery of sureties' names, that the statute in question was enacted. That mischief was the loss of public moneys by sureties of officers avoiding liability as such upon official bonds. The remedy was not, certainly, to devise additional methods by which liability might be avoided, but to close for the future the door of escape already existing, or sup 3 Burr v. Dana, 22 Cal. 11, 20; Jacobs v. Kruger, 19 id. 411. 2 Brown v. Thompson, 14 Bush, 538. 3 Id. posed to exist; not to relieve persons becoming sureties of county treasurers, but to protect the people from the defalcations of those officers. It was not for the benefit of the surety that he was required in person to acknowledge the bond before the commissioners, but it was to prevent him from afterwards making any question concerning the genuineness of his signature, or the validity of the instrument as against him.' § 430. Liberal construction is given to suppress the mischief and advance the remedy. For this purpose, as has already been said, it is a settled rule to extend the remedy as far as the words will admit, that everything may be done in virtue of the statute in advancement of the remedy that can be done consistently with any construction. Where its words are plain and clearly define its scope and limit, construction cannot extend it; or where the language is so explicit as to exclude any reasonable inference that such extension was intended. Lord Brougham said: "If we depart from the plain and obvious meaning, we do not in truth construe the act, but alter it. We supply a defect which the legislature could easily have supplied, and are making the law, not interpreting it.” 3 "We are bound," said Buller, J., "to take the act of parliament as they have made it; a casus omissus can in no case be supplied by a court of law, for that would be to make law." It will make no difference if it appears that the omission on the part of the legislature was a mere oversight, and that without doubt the act would have been drawn otherwise had the attention of the legislature been directed to the oversight at the time the act was under discussion. When the language is general or obscure the court must construe it, and, State v. Blair, 32 Ind. 313. The following cases contain implied exceptions for not being within the intention of the statute: Simpson v. Unwin, 3 B. & Ad. 134; Ramsden v. Gibbs, 1 B. & C. 319; Hearne v. Garton, 2 E. & E. 66; Aberdare Local Board v. Hammett, L. R. 10 Q. B. 162; Core v. James, L. R. 7 Q. B. 135; Reg. v. Sleep, L. & C. 44; Reg. v. Dean, 12 M. & W. 39; Lee v. Simpson, 3 C. B. 871; Reg. v. Harvey, L. R. 1 C. C. R. 284; Edward v. 2 Turtle v. Hartwell, 6 T. R. at p. 429; Atcheson v. Everitt, 1 Cowp. at p. 391. 3 Gwynne v. Burnell, 7 Cl. & F. 696. 4 Jones v. Smart, 1 T. R. 44. 3 Hardc. on St. 21; Lane v. Bennett, 1 M. & W. 70; N. E. R'y v. Leadgate, L. R. 5 Q. B. 161. as far as it can, make it available for carrying out the objects of the legislature and for doing justice between parties.' § 431. Casus omissus. It will be seen by the foregoing illustrations of liberal construction that where language has received an expansive construction it has been to effect the intention of the law-maker, not to give the statute an effect beyond the intention or to supply the defects of the statute. It results from the judicial function of expounding the law as it is that the courts cannot extend it to meet a case which has clearly and undoubtedly been omitted to be provided for. As the judicial committee said in Crawford v. Spooner, "we cannot aid the legislature's defective phrasing of an act; we cannot add and mend, and, by construction, make up deficiencies which are left there;" in other words, the language of statutes, but more especially of modern acts, must neither be extended beyond its natural and proper meaning, in order to supply defects, nor strained to meet the justice of an individual case. If the language is plain, precise and unambiguous, there is no room for construction; and the particular intention so expressed is alone to be carried into effect. A statute of Connecticut which validated deeds executed and acknowledged in any other state "in conformity with the laws of such state" was held not to apply to a deed of land situated in that state, executed in New York and acknowledged before a Connecticut commissioner, defective by the laws of Connecticut, if executed there, for having but one witness. In order to extend a statute by equitable construction beyond its letter, it must be collected from the act that the wrong sought to be redressed was one of the considerations for passing it; otherwise it is a casus omissus which a court of law cannot supply. Where an act denies to one class of suitors a remedy or defense which others enjoy, it will not be extended by equitable construction to cases not specified in it, unless the court 1 Phillips v. Phillips, L. R. 1 P. & D. 173. 2 Hardc. on St. 20. 36 Moore's P. C. 9. + Lord Brougham in Gwynne v. Burnell, 7 Cl. & F. at p. 696; Lord Selborne in Pinkerton v. Easton, L. R. 16 Eq. at p. 492. 5 Hardc. on St. 20, 21; Lord Denman in Green v. Wood, 7 Q. B. at p. 185; Whiteley v. Chappell, L. R. 4 Q. B. 147. 6 Farrell Foundry v. Dart, 26 Conn. 376. is satisfied the case is within the mischief or occasion that was in the mind of the legislature at the time of its passage.1 statute in Maine provided that "hereafter when any woman possessed of property, real or personal, shall marry, such property shall continue to her notwithstanding her coverture, and she shall have, hold and possess the same as her separate property, exempt from any liability for the debts or contracts of her husband." It was held that under this statute she could not make sales and purchases of property. The court, by Shepley, J., said: "It was the intention of the legislature, as the title of the act declares, to secure to married women their rights in property, and it should receive such a construction as will make that intention effectual, so far as it can be done consistently with the established rules of law. But courts of justice can give effect to legislative enactments only to the extent to which they may be made operative by a fair and liberal construction of the language used. It is not their province to supply defective enactments by an attempt to carry out fully the purposes which may be supposed to have occasioned those enactments. This would be an assumption by the judicial of the duties of the legislative department." 2 § 432. An act which authorizes a municipal body to open and widen streets according to the procedure therein prescribed, and omits to prescribe a procedure for cases of widening streets, is to that extent inoperative. A statute providing for testing the accuracy of the weights and measures used in selling commodities, imposing penalties on those who use them contrary to the act in selling, is not applicable to persons engaged in buying. The heir at common law inherits except in the particular cases in which the statutes of descent provide for a different disposition of property, and by construction a court cannot extend such statutes to any other cases. An officer having authority in his county to take proof or acknowledgment of all instruments in writing conveying land therein 1 Scaggs v. Baltimore, etc. R. R. Co. 10 Md. 268; Jones v. Smart, 1 T. R. 52; Hull v. Hull, 2 Strob. Eq. 174; Moore v. Indianapolis, 120 Ind. 483; S. C. 22 N. E. Rep. 424. 2 Swift v. Luce, 27 Me. 285. 3 Chaffee's Appeal, 56 Mich. 244. 5 Johnson v. Haines, 4 Dall. 64. |