Proviso

A clause inserted in an act of the legislature, a deed, a written agreement, or other instrument, which generally contains a condition that a certain thing shall or shall not be done, in order that an agreement contained in another clause shall take effect. 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.

Voorhees v. Jackson, 10 Pet. (U. S.) 471, 9 L. Ed. 490; Stockton v. Weber, 98 Cal. 433, 33 Pac. 332.

The general purpose of a proviso is to except the clause covered by it from the provisions of a statute; Deitcli v. Staub, 115 Fed. 309, 53 C. C. A. 137; or to qualify the operation of the statute; Georgia It. & Bank. Co. v. Smith, 128 U. S. 174, 9 Sup. Ct. 47, 32 L. Ed. 377.

See Ryan v. Carter, 93 U. S. 83, 23 L. Ed. 807.

But while this is its primary purpose, it may have a general application; U. S. v. G. Falk & Bros., 204 U. S. 143, 27 Sup. Ct. 191, 51 L. Ed. 411. It might sometimes mean additional legislation; Burlingham v. Crouse, 228 U. S. 459, 33 Sup. Ct. 594, 57 L. Ed. 920, 46 L. R. A. (N. S.) 148; Interstate Commerce Commission v. Baird, 191 IJ.

S. 25, 24 Sup. Ct. 563, 48 L. Ed. S60.

It always implies a condition, unless subsequent words change it to a covenant; •Rich v. Atwater, 16 Conn. 419; but when a proviso contains the mutual words of the parties to a deed, it amounts to a covenant; 2 Co. 72; Cro. Eliz. 242; Moore 707. Ordinarily in statutes it is to be strictly construed and confined to what precedes it, but it may, if necessary, be extended to the entire act; Carter, Webster & Co. v. U. S., 143 Fed. 256, 74 C. C. A. 394; a proviso in one paragraph of a tariff act may be applied to other provisions also; U. S. v. Dry Goods Co., 156 Fed. 910, 84 C. C. A. 440. A proviso differs from an exception; 1 B. & Aid. 99. An exception exempts, absolutely, from the operation of an engagement or an enactment; a proviso defeats their operation, conditionally. An exception takes out of an engagement or enactment something that would otherwise be part of the subject-matter of it; a proviso avoids them by way of defeasance or excuse; Plowd. 361; 1 Saund. 234 a; Lilly, Reg., and the cases there cited. The natural presumption from a proviso is, that, but for the proviso, the enacting part of the section would have included the subject-matter of the proviso; 5 Q. B. D. 173.

See, generally, Bac. Abr. Conditions (A); Com. Dig. Conditions (A 1), (A 2); Dwarris, Stat. 660; Provided.

The proper use of provisoes in drafting acts is explained by Coode on Legislative that the abuse of the proviso is universal, and doubts if it need ever be employed in drafting acts. The early, and, as he thinks, the correct use, is by way of taking special cases out of general enactments and providing for them. The courts have generally assumed that such was the proper mode of using a proviso. It is incorrectly used to introduce mere exceptions to the operation of the enactment where no special provision is made for the exception; these are better expressed as exceptions. If a general provision is merely to be negatived in some particular, the negative should be expressed in immediate contact with the general words. Sometimes a proviso introduces several stages of consecutive operation, which would be better expressed by “and.” It is impossible to deduce any general rule from the doctrines laid down by the courts in the multitude of adjudicated cases. Trial by proi iso. A trial at the instance i of a defendant in a case in which the plaintiff, after issue joined, does not proceed to trial when by the practice of the court he ought to have done so. The defendant may take out a venire facias to the sheriff, which hath in it these words, Proviso quod, etc., provided that if the plaintiff shall take out any writ to that purpose, the sheriff shall summon but one jury on them both.

Jacob; Old Nat. Brev. 159.