town during the night, a man opened the gates at night for the purpose of admitting troops to succor the town, when they would have been cut to pieces if they had been suffered to remain without the walls until morning. In this case it is perfectly clear, although the act was within the letter of the law, the law-makers never could have intended that this law should apply to such a

case.

§ 707. St. Germain says: "In some cases it is necessary to leave the words of the law, and follow that which reason and justice requireth, and to that intent equity is ordained; that is to say, to temper and mitigate the rigor of the law, and so it appeareth that equity taketh not away the very right, but only that which seemeth to be right by the general words of the law.”(a) Domat adopts the general rule, that courts should not, in the construction of a law, mitigate the hardships or rigor of it whenever it is evident that such rigor is essential to the law from which it flows, so that no temperament can be applied to it without annulling it.(6) Domat illustrates this principle by a reference to those laws which require certain formalities in the execution of last wills and testaments, but which formalities from the happening either of some unforeseen event, or through mistake or accident, have not been complied with. In such case, the will must always be held null, whatever certainty there may be of the will of the testator, or however favorable the contents of the testament may be. The principle in such case is founded upon the reason that these formalities are the only ways which the law allows, and hence the rigor of the law, which annuls wills when these formalities have not been observed, is

(a) Doct. and Stud. 1, c. 16.

(5) Domat's Civil Law, b. i. tit. i. sec. 2, p. 10. IV.

required, and is essential to the law itself, founded as it is upon principles of public policy, which cannot be mitigated without subverting those principles, and quite annulling the law itself. (a) But in those cases where the hardship or rigor of the law be not the necessary consequence of, and inseparable from it, but the law itself may have effect, by an interpretation which mitigates its rigor; courts may, as the spirit of the law requires, depart from the rigor which the letter of the law seems to demand, and follow rather its spirit and true intendment rather than adhere to a strict and rigid interpretation.(b) We have seen that he is of the opinion that we cannot lay down any general rule of universal application, either that the rigor of a law ought always to be followed contrary to the temperament of equity, or that it ought always to yield to equity. For this reason, the rigor of a law becomes injustice in those cases where it will admit of an equitable construction, and on the other hand it is a just rule in those cases, when an equitable interpretation would destroy or annul the law itself.

§ 708. Thus it will be seen, that according to this great civilian, "the rigor of the law," must be taken either for a hardship which is unjust and odious, for the reason that it is in no way conformable to the spirit of the law, or on the other hand, for a rule which is inflexible, but which has nevertheless its principles founded on substantial reasons and strict justice. In the former case it may be mitigated, but in the latter it should not. This certainly is a very palpable distinction, and one

(a) Domat's Civil Law, b. i. tit. i. sec. 2, p. 10, IV. See 3 Har. & McHen. 457.

(6) Domat's Civil Law, b. i. tit. i. sec. 2, p. 10, V.

which should ever be kept in view, in cases where an equitable interpretation is to be resorted to. He thinks that the rule of an equitable construction manifestly ap plies in all that class of cases where the words of the law do not expressly comprehend some cases which cannot, without absurdity, be excepted from its ope

ration.

ris says,

§ 709. Fret, in his commentaries on the Pandects, says, "That things which are not expressly specified by the law, must be supplied by means of interpretation by the jurisdiction of judges, proceeding on the manifest meaning of the law, to cases similar to those provided for according to the letter of the law, whenever the principles and reason of the law apply. (a) Mr. Dwar "Whatever doubts may be entertained of the propriety of extending the words of a statute by equitable construction to embrace other cases,-conveyances,times, places,-persons, and things,-besides those contained and expressly mentioned in the act, there can be no question that the words of a remedial statute are to be construed largely and beneficially, so as to suppress the mischief and advance the remedy. It is by no means unusual, in construing a remedial statute, to extend the enacting words beyond their natural import and effect, in order to include cases within the same mischief.”(b) Stephens says, "That is true with us of remedial sta tutes only, which Cicero says of all laws, eas ex utilitate communi non ex scriptione, quæ in literis est interpretari." (c)

710. Lord Erskine's rule was, that where the strict

(a) Domat, 4, c. iv. prelim., secs. 1, 21, LX. ff. de leges, I. XII., eod. i. xxxii. ff. ad 4 Aquil. Eng. Constitution, by Bowyer, 28.

(6) Dwarris, 735; 2 Y. & J. 196.

(c) 1 Steph. Elec. L. 28.

letter of the law was contrary to its spirit or to equity, judges ought not so much to regard the proper or received signification of the words, as that meaning which appeared most consonant to the design of the law. (a) And he bids fairest for a just interpretation who keeps constantly in view, the mischiefs or defects which existed in the former laws on the same subject, the remedies which the statute has provided to cure them, how far those remedies are proper, and what sense appears the most consonant to the subject-matter, and most agreeable to equity.(b)

§ 711. An inattentive reader, in perusing the works of some elementary writers, might be led from their writings to suppose, that a distinction exists between the powers of a court of equity and a court of law in the application of the doctrine of equitable construction. But it will be found no such distinction exists. We have stated the rule adopted in such cases in a previous chapter.(c) We have shown that in those states which have separate courts of law and equity, the same rules of construction prevail in each; or if they differ it is only as one court differs from another.

§ 712. The rule of an equitable construction of a statute has frequently been adopted in this state, and the reasons for it adverted to. It came under consideration in the case of The Mayor, &c. of New York v. Lord,(d) in the court of dernier resort. The chancellor, in speaking of its necessity, says: "The imperfection of human language, and the different modes of expression in use amongst different individuals, even in the same state or government, to convey their ideas, wishes, or intentions, to the minds of others, renders it morally impossible that

(a) Erks. Inst. b. i. tit. i. sec. 52. (b) lb. sec. 58.

(c) See ante, 635.

(d) 18 Wend. 131.

the language of any general legislative provision, which is intended to govern in future cases, can be made so certain and explicit as not to admit of a doubt as to its proper interpretation or legal construction, when it is afterwards to be applied to the peculiar circumstances of some cases, which may arise and be brought before the judicial tribunals in reference to such statutes. For this reason it has been found necessary to establish a system of legal hermeneutics, or fixed principles of interpretation, and construction of legislative enactments, to ascertain the intent and meaning of the lawgiver. For similar reasons, certain fixed rules of judicial construction are resorted to by courts of justice, for the purpose of giving a proper construction to the terms of a grant from the government, or from a private person, the meaning of a testamentary disposition, or the true interpretation of words which parties have used in a written contract. Among these fixed principles or rules for the interpretation or construction of statutes, which has been adopted in this country and England, is that of construing the statute by equity, so as to produce neither injustice nor absurdity, where the language of the statute is such as to admit of different interpretations or constructions." The learned chancellor then adopts the rule of Lord Eskine, above stated by us.

§ 713. In this case, the question arose under the provisions of 1 R. L. 1813, p. 368, sec. 81, which provided, that when any building or buildings in the city of New York should be on fire, the mayor, with the concurrence of two aldermen, might direct and order the same, or any other building which they may deem hazardous, to be pulled down or destroyed. The act further provided, that upon the application of any person interested in such building so pulled down or destroyed, to the mayor, recorder or any two aldermen; it made it their duty to call a jury to inquire of and assess the damages which