now adhered to, and laid down in our most modern law reports.

§ 701. In more modern times, the rule seems still to prevail that statutes are many times to receive what is termed an equitable construction—that is, a construction that may sometimes seem contrary to the letter; which rule has for its reason, that a thing within the intention is as much within the statute as if it were in the letter, and the principle is still recognized that this rule proceeds upon the ancient ground that the lawgiver could not set down every thing in express terms, so as to meet the varied exigencies of human affairs; and hence courts, whenever they discover a thing within the mischief which it was the intention of the statute to remedy, hold that such things must be considered as within the statute. (a) So, on the other hand, when a case arises which it is clear that it is out of the mischief intended to be guarded against-or, in other words, out of the spirit of the statute the letter of the statute will not be deemed so unequivocal as to elude any other construction.(b) This rule obtained in a case in the courts of New York.(c) The statute prohibited any sheriff or other officer, to whom any execution should be directed, or any of their deputies, or any person for them, or either of them, to purchase any goods, or chattels, lands, or tenements, at any sale, by virtue of any execution, and declared all purchases made by them, or any of them, or for the use of them, or any of them, void. The premises in question, in that case, which was an action of ejectment, had been sold by one deputy sheriff on an execution issued under a judgment owned by another deputy of the same sheriff, and were bid off by a third

(a) 1 Inst. 19.

(b) Faw v. Masteller, 2 Cranch, 10.

(c) Jackson v. Collins, 3 Cowen R. 85.

person in his own name; but in fact, as it was claimed, for the deputy who owned the judgment, and were subsequently deeded to him by the purchaser. It was contended, that as the purchaser was trustee of the deputy, and purchased the lands for his benefit, the purchase was void. Savage, Ch. J. held, although the purchase came within the letter of the act, it could never have been the intention of the legislature to have prevented a deputy sheriff, when plaintiff in an execution, from bidding, in order to secure his money. The object was to prevent abuse, that the sheriff or his deputy should not be allowed to become purchasers at their own sales, and thereby be induced to conduct corruptly in relation to them. But it never was intended to place those persons in a worse situation than others, as to the collection of their own demands. That "whenever the intention of the makers of a statute can be discovered, it ought to be followed with reason and discretion in the construction of the statute, although such construction seem contrary to the letter of the statute. A thing which is within the letter of a statute, is not within the statute, unless it be within the intention of the makers. (a) If from the view of the whole law, or from other parts in pari materia, the evident intention is different from the literal import of the terms employed to express it in a particular part of the law, that intention should prevail for the reason, that in fact, is the will of the legislature. (b)

§ 702. Some of the English authorities have laid down the rule that all acts, private as well as general, shall be taken by a reasonable construction. Indeed, in this country the doctrine has obtained that an instrument no less

(a) Bac. Abr. Statute I.; People v. Utica Ins. Co. 15 J. R. 380; The King v. Younge, 5 T. R. 449; Rex v. Cox, 2 Burr, 786; Canal Co. v. Railroad Co. 4 Gill & J. 6; Plowden, 18; 3 B. & A. 266; 4 B. & A. 212. (b) The United States v. Fisher, 2 Cranch, 399.

solemn and sacred than that of the federal constitution, and that too on a question of power, like every other grant, must have a reasonable construction, according to the true import of its terms; and where a power is expressly given in general terms, it is not to be restrained to particular cases, unless that construction grows out of the contract, or by necessary implication, for the reason that the constitution, like statutes, necessarily deals in general language. It was impossible, as well as unsuited to the purposes of the people, to provide for minute specification of power in this great charter of their liberties.(a)

§ 703. The English rule is, that the intent and meaning of the legislature must be found partly from the words and partly from the mischief which the statute was intended to remedy; as that intent is the controlling principle, sometimes it becomes necessary to expound it against the letter, in order to preserve the interest. As the reasons which induced the law-makers to make an act which took away or altered the common law, is the principal thing to be considered in connection with the words of the act itself, courts may in doubtful cases enlarge the construction of an act, according to the reason and sense of the law-makers, which are expressed in other parts of the statute or general acts by considering the frame and design of the whole ;(b) and as that intent is rather to be weighed many times, it will be found that things which are in the letter are not within the purview of the law, which extends no farther than the intent of the makers.(c)

§ 704. The spirit, as well as the letter of a statute,

(a) Martin v. Hunter's Lessees, 2 U. S. Cond. R. 583.

(b) 11 Mod. 160.

(c) 19 Vin. Abr. 519.

must undoubtedly be respected; and where the whole context of the law demonstrates a particular intent in the legislature to effect a certain object, in that case some degree of implication may be called in to aid that intent. (a) But this rule only obtains where the intent is not plain, and must be ascertained.(b) The intent must be sought for in the words, and where the intent is apparent on the face of the act; (c) where there is no obscurity in the meaning, obscurity must never be created by construction.(d) The supreme court of the United States have held, "It is undoubtedly true it is the duty of the court to ascertain the meaning of the legislature from the words used in the statute, and the subjectmatter to which it relates, and to restrain its operation within narrower limits than its words import, if the court are satisfied that the literal meaning of its words would extend to cases which the legislature never designed to include in it.(e)

§ 705. The English rule adopted by ancient authorities is, that no statute, when the letter is ambiguous, should be taken by equity contrary to the letter, so as to maintain a thing or mischief contrary to the letter or intent, the very object of the statute being to toll the mischief or inconvenience, but that in such cases it should be taken in the letter and intent, so as to destroy the mischief or inconvenience.(f) As the necessity of an equitable construction originates in the difficulty of so framing a statute as to comprehend and provide for

(a) Durrousseau v. United States, 6 Cranch, 307, 314.

(b) United States v. Fisher, 2 Cranch, 358.

(c) 7 Cranch, 52; 2 Pet. 662.

(d) Camden and Amboy Railroad Co. v. Commissioners of Appeal, 3 Harrison R. 72.

(e) Lessees of Brewer v. Blougher, 14 Pet. 178.

(f) 19 Vin. 527.

every possible case within its scope and design;(a) and as the words of the law, according to their strict and literal meaning, may in a particular instance lead to the subversion of the intention and principles of it, and produce manifest injustice, either by comprehending cases to which its principles do not extend, or by not embracing cases where the intention of it was to give relief, an equitable construction must sometimes be adopted.(b)

705. It may not be amiss, in this connection, to advert once more to the understanding of judicial and ethical writers as to the nature of equitable construction, the extent to which it is to be carried, and the rules that should govern in its application. To this end the pathway of the legal student may be somewhat illuminated by lights derived from ancient civil law writers, as well as by the principles evidently deduced there from by more modern legal writers, and expressed in judicial decisions.

§ 706. Grotius seems to have adopted substantially the definition of Aristotle as to the equity required in such cases. He says: "Equity is an accurate interpretation by means of which that which is defective in the law by reason of two general terms, whenever it is perceived is rectified." Puffendorf's explanation of this definition is, "that a true equitable construction consists in showing by principles of natural good sense, that a particular case is not comprehended in the meaning of a law, because if it were so comprehended, some absurdity would necessarily follow," and he illustrates this rule by the case supposed by Cicero, in his treatise De Inventione, where it was forbidden by the law to open the gates of the

(a) L.10 ff. De legb.

(b) Grotius Dr des Guene et de La Paix. L. ii. 16, sec. 27; Puff. Dr des Gens, b 1, c. 11, sec. 8; 1 V. C. 12, sec. 21; Black. Com. b. 3, 429, 430; Woodd. Lect. 7.