proviso

the office of a proviso is either to except something from the enacting clause or to qualify or restrain its generality, or to exclude some ground of misinterpretation of it, as extending to cases not intended to be brought within its operation

A proviso is 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 Case provi(fed. 187 Mich. 516, 525. The name of 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. "This word hath divers operations. Sometimes it worketh a qualification or limitation, sometimes a condition, and sometimes a covenant." Co. Litt. 146b, 203b. vhen a proviso contains the mutual words of the parties to a deed, it amounts to a covenant. 2 Coke, 72; Cro. Eliz. 242; Moore, 707. A proviso differs from an exception. 1 Barn. & 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 which would otherwise be part of the subject matter of it; a proviso avoids them by way of defeasance or excuse. 8 Am. Jur. 242; Plowd. 361; Garth. 99; 1 Saund. 234a, note; Lilly, Reg., and the cases there cited. See, generally, Am. Jur. No. 16, art. 1; Bac. Abr. "Conditions" (A); Comyn, Dig. "Condition" (A 1), (A 2); Dwarr. St. 660. PROVISO EST PROVIDERE PRAESENtia et futura, non praeterita. A proviso is to provide for the present and the future, not the past. 2 Coke, 72; Vaughan, 279; Broom, Leg. Max. (3d London Ed.) 275.

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.

I. Provided, — a word by which a condition might be created in a deed; a condition beginning with " provided " on the observance of which the validity of the deed depends; a clause in a statute whose office is to create an exception, or to qualify or restrain, or to exclude possible misinterprecation. Proviso est providers prsesentia et futura, non praeterita: [the office of] a proviso is to provide for the present and future, not the past In English law. Proviso, trial by: a trial brought on by a defendant, where the plaintiff, after issue, neglects to proceed to trial according to the course and practice of the court.

/. Provided. Trial by proviso vras where the plaintiff failed to proceed after issue joined; whereupon the defendant took the necessary steps to a trial, issuing the venire, etc. Pros:', for Prosimus, I. The next. Prox' seq', sequente: next following. Proximus haeres: the next heir.

A conditional clause often inserted in deeds or statutes, or operative force of the statute frequently depends j it usually begins with the word provided. The word proviso is generally taken for a condition: but it dif Eers from it in several respects; for a condition is usually created by the grantor or lessor, but a proviso by the grantee or lessee. Jacob. A proviso also differs from an exception, in this, that an exception exempts, absolutely, from the operation of an engagement or an enactment; while a proviso defeats their operation, conditionally: an exception takes out of an engagement or enactment something which would otherwise be part of the subject-matter of it; wliile a proviso avoids them, by way of defeasance or excuse. See Bouvier. A proviso in a statute is generally intended to restrain the enacting clause, and to except something which would otherwise have been within it, or in some measure to modify the enacting clause. Wayman V. Southard, 10 Wheat. 1, 30. A proviso in deeds or laws is 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. Bank of the United States, 10 Pet. 449.