PROVISO. A clause inserted in an act of the legislature, a deed, a written agreement, or other instrument, which generally con tains a condition that a certain thing shall or shall not be done, in order that an agree ment 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 ex cept the clause covered by it from the pro visions of a statute; Deitch v. Staub, 115 Fed. 309, 53 C. C. A. 137; or to qualify the operation of the statute; Georgia R. & 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 some times mean additional legislation; Burling ham v. Crouse, 228 U. S. 459, 33 Sup. Ct. 564, 57 L. Ed. 920, 46 L. R. A. (N. S.) 148; Interstate Commerce Commission v. Baird, 194 U. S. 25, 24 Sup. Ct. 563, 48 L. Ed. 860.
It always implies a condition, unless sub sequent 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 ap plied to other provisions also ; U. S. v. Dry Goods Co., 156 Fed. 940, 84 C. C. A. 440.
A proviso differs from an exception ; I B. & Ald. 99. An exception exempts, ab solutely, from the operation of an engage ment 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 presump tion 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. Condi tions (A 1), (A 2) ; Dwarris, Stat. 660; PsovIDED.
The proper use of provisoes in drafting acts is explained by Coode on Legislative Construction, printed as an appendix to Purdon's Pennsylvania Digest. He considers 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 provid ing for them. The courts have generally as sumed 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 pro vision is merely to be negatived in some par ticular, 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 impos sible to deduce any general rule from the doctrines laid down by the courts in the mul titude of adjudicated cases.
Trial by proviso. A trial at the instance of a defendant in a case in which the plain tiff, 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 quad, 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.