most frequently cited with reference to the mode of construing deeds and written instruments; and, in order to render the subject more complete, some remarks have been occasionally added, showing how these rules apply to the interpretation of wills and statutes. As the authorities and decided cases on the above subject are, of course, extremely numerous, and as in a work like the present it would be undesirable, and indeed impossible, to refer to any considerable portion of them, those only have been cited which exhibit and tend to elucidate most clearly the meaning, extent, and qualifications of the various maxims; and, as far as was consistent with this plan, the more modern judgments of the courts of law have been especially consulted and selected for reference, because the principles of interpretation are better understood at the present day, and consequently, more clearly defined and more correctly applied than they formerly The importance of fixed and determinate rules of interpretation is manifest, and not less manifest is the importance of a knowledge of those rules. In construing deeds and testamentary instruments, the language of which, owing to the use of inaccurate terms.

were.

and expressions, so frequently falls short of, *or altogether [*412] misrepresents the views and intentions of the parties, such rules are necessary in order to insure just and uniform decisions; and they are equally so where it becomes the duty of a court of law to unravel and explain those intricacies and ambiguities which occur in legislative enactments, and which result from ideas not sufficiently precise, from views too little comprehensive, or from the unavoidable and acknowledged imperfections of language. In each case, where doubt or difficulty arises, peculiar principles and methods of interpretation are applied, reference being always had to the general scope and intention of the instrument, the nature of the transaction, and the legal rights and situation of the parties interested.

Inasmuch as the principles developed in this chapter are applicable to the solution of many questions connected with the Law of Contracts and of Evidence, it has been thought better to consider them before proceeding to those important subjects which are treated of in the concluding chapters of this work.

The rules of construction and interpretation separately considered in this chapter are the following:-1st, that an instrument shall be construed liberally and according to the intention of the parties; 2dly, that the whole context shall be considered; 3dly, that the

'See Lord Teignmouth's Life of Sir W. Jones, 261.

meaning of a word may often be known from the context; 4thly, that a deed shall be taken most strongly against the grantor; 5thly, that a latent ambiguity may, but a patent ambiguity cannot, be explained by extrinsic evidence; 6thly, that, where there is no ambiguity, the natural construction shall prevail; 7thly, that an instrument or expression is sufficiently certain which can be made so; 8thly, that surplusage may be rejected; 9thly, that a false description is often immaterial; 10thly, that general words [*413] may be restrained by reference to the subject-matter; 11thly, that the special mention of one thing must be understood as excluding another; 12thly, that the expression of what is implied is inoperative; 13thly, that a clause referred to must be understood as incorporated with that referring to it; 14thly, that relative words refer to the next antecedent; 15thly, that that mode of exposition is best which is founded on a reference to contemporaneous facts and circumstances; 16thly, that he who too minutely regards the form of expression, takes but a superficial, and, therefore, probably an erroneous view of the meaning of an instrument.

BENIGNE FACIENDÆ SUNT INTERPRETATIONES PROPTER SIMPLICITATEM LAICORUM UT RES MAGIS VALEAT QUAM PEREAT; ET VERBA INTENTIONI, NOn e contra, debENT INSERVIRE.

(Co. Litt. 36, a.)

A liberal construction shall be put upon written instruments, so as to uphold them, if possible, and carry into effect the intentions of the parties.

The two rules of most general application in construing a written instrument are 1st, that it shall, if possible, be so interpreted ut res magis valeat quam pereat;1 and, 2dly, *that such a meaning [414] shall be given to it as may carry out and effectuate to the fullest extent the intention of the parties. These maxims are indeed, in some cases restricted by the operation of technical rules, which, for the sake of uniformity, ascribe definite meanings to par

1 The Court will not construe that which was expressed and intended to be a lease as an assignment merely, ut res pereat, for this would be against the known and salutary maxim above considered: Pollock v. Stacey, 16 L. J., Q. B. 132, 133. As to the mode of construing an award, see per Coleridge, J., Stonehewer v. Farrar, 6 Q. B. 743; per Alderson, B., Wynne v. Edwards, 12 M. & W. 712. As to construing a modus, see per Parke, B., Mayor of Bridgewater v. Allen, 397. See, also, the cases cited, Pannell v. Mill, 5 C. B. 625.

14 M. & W.

ticular expressions; and, in other cases, they receive certain qualifications when applied to particular instruments, such qualifications being imposed for wise and beneficial purposes; notwithstanding, however, these exceptions and qualifications, the above maxims are undoubtedly the most important and comprehensive which can be applied in determining the true construction of written instruments. It is then laid down repeatedly by the old reporters and legal writers, that, in construing a deed, every part of it must be made, if possible, to take effect, and every word must be made to operate in some shape or other.' The construction, likewise, must be such as will preserve rather than destroy, it must be reasonable, and agreeable to common understanding; it must also be favourable, and as near the minds and apparent intents of the parties as the rules of law will admit; and, as observed by Lord Hale, the judges ought to be curious and subtle to invent reasons and means to make acts effectual according to the just intent of the parties; they will not, therefore, cavil about the propriety of words when the intent of the parties appears, but will rather apply the words to fulfil the intent, than destroy the intent by reason of the insufficiency of the words." *Deeds, then, shall be so construed as to operate according [*415] to the intention of the parties, if by law they may; and, if they cannot in one form, they shall operate in that which by law will effectuate the intention; Quando res non valet, ut ago, valeat quantum valere potest. For, in these later times the judges have gone further than formerly, and have had more consideration for the substance, to wit, the passing of the estate according to the intent of the parties, than the shadow, to wit the manner of passing it. For instance, a deed intended for a release, if it cannot operate as such, may amount to

1 Shep. Touch. 84; Plowd. 156.

2 Per Lord Brougham, C., Langston v. Langston, 2 Cl. & Fin. 243.

32 Bla. Com. 378; 1 Bulst. 175; Hob. 304.

42 Bla. Com. 378; 1 Anderson, 60; Jenk. Cent. 260.

5 Crossing v. Scudamore, 2 Lev. 9; per Lord Hobart, Hob. R. 277, cited Willes, R. 682; Moseley v. Motteux, 10 M. & W. 533. 61 Plowd. 159, 160, 162.

7 Per Lord Mansfield, C. J., Goodtitle v. Bailey, Cowp. 600; cited Roe d. Earl of Berkeley v. Archbishop of York, 6 East, 105; 1 Ventr. 216. See, also, the instances of the above rule mentioned in Gibson v. Minet, 1 H. Bla. 614, 620.

8 Osman v. Sheaf, 3 Lev. 370; cited, Doe d. Lewis v. Davies, 2 M. & W. 516; per Willes, C. J., Smith v. Packhurst, 3 Atk. 136; cited Marquis of Cholmondeley v. Lord Clinton, 2 B. & Ald. 637; Tarleton v. Staniforth, 5 T. R. 695; per Maule, J., Borradaile v. Hunter, 5 Scott, N. R. 431, 432; 2 Wms. Saund. 96, a. n. (1); 3 Prest., Abstr. Tit. 21, 22; 1 Id. 313.

a grant of the reversion, an attornment, or a surrender, and è converso.1 So, if a man make a feoffment in fee, with a letter of attorney to give livery, and no livery is given; but there is, in the same deed, a covenant to stand seised to the uses of the feoffment, proIvided there be a consideration sufficient to raise the uses of the covenant, this will amount to a covenant to stand seised. And, where A., in consideration of natural love and of 1007., by deeds of lease and release, granted, released, and confirmed certain premises, after his own death, to his brother B. in tail, remainder to C:, the son of another brother of A., in fee; and he covenanted and granted that the premises should, after his death, be held by B. and the heirs of his body, or by C. and his heirs, *according to the true [*416] intent of the deed; it was held, that although the deed could not operate as a release, because it attempted to convey a freehold in futuro, yet it was good as a covenant to stand seised. So, a deed of bargain and sale, void for want of inrolment, will operate as a grant of the reversion. And, if the King's charter will bear a double construction, one which will carry the grant into effect, the other which will make it inoperative, the former is to be adopted." In accordance with the same principle of construction, where divers persons join in a deed, and some are able to make such deed, and some are not able, this shall be said to be his deed alone that is able; and, if a deed be made to one that is incapable, and another that is capable, it shall enure only to the latter. So, if mortgagor and mortgagee join in a lease, this enures as the lease of the mortgagee, and the confirmation of the mortgagor. And if there be a joint lease by tenant for life and remainderman, such lease operates during the life of the tenant as his demise confirmed by the remainderman, and afterwards as the demise of such last-mentioned party."

The preceding examples will probably suffice to show that where a deed cannot operate in the precise manner or to the full extent

2

1 Shep. Touch. 82, 83; Co. Litt. 49, b; cited, 5 B. & C. 106.

Shep. Touch. 82, 83.

3 Roe v. Tranmarr, Willes, R. 682. See the cases collected 2 Wms. Saund. 96 a. n. (1); 1 Prest., Abstr. Tit. 313; 1 Rep. 76; Perry v. Watts, 4 Scott, N. R. 366; Doe d. Daniell v. Woodroffe, 15 M. & W. 769.

42 Smith, L. C. 294; Haggerston v. Hanbury, 5 B. & C. 101; Adams v. Steer, Cro. Jac. 210. 5 Per Tindal, C. J., Rutter v. Chapman, 8 M. & W. 102.

6 Shep. Touch. 81; Finch, Law, 60.

7 Shep. Touch. 82.

9

Treport's case, 6 Rep. 15.

8 Doe d. Barney v. Adams, 2 Cr. & J. 232; per Lord Lyndhurst, C. B., Smith

v. Pocklington, 1 Cr. & J. 446.

intended by the parties, it shall, nevertheless, be made as far as pos

[*417]sible to effectuate that intention. *Acting, moreover, on a kindred principle, the Court will endeavour to affix such a meaning to words of obscure and doubtful import occurring in a deed, as may best carry out the plain and manifest intention of the parties, as collected from the four corners of the instrument,—with these qualifications, however, that the intent of the parties shall never be carried into effect contrary to the rules of law, and that, as a general rule, the Court will not introduce into a deed words which are not to be found there,' nor strike out of a deed words which are there, in order to make the sense different. The following important illustrations of the above propositions may advantageously be noticed, and many others of equal practical importance will, doubtless, readily suggest themselves to the reader.

In cases, then, prior to and excluded from the operation of the recent stats. 7 & 8 Vict. c. 76, s. 4,3 and 8 & 9 Vict. c. 106, §. 3, the question whether a particular instrument should be construed as a lease or as an agreement for a lease must be answered by considering the intention of the parties, as collected from the instrument itself; and any words which suffice to explain the intent of the parties, that the one should divest himself of the possession, and the other come into it for such a determinate time, whether they run in the form of a license, covenant, or agreement, will of themselves be held, in construction of law, to amount to a lease for years as effectually as if the most proper and pertinent words had been made use of for that purpose. "The rule," observes Parke, B., "which is [*418] *laid down in all the cases, is, that you must look at the whole of the instrument to judge of the intention of the parties, as declared by the words of it, for the purpose of seeing whether it is an agreement or a lease.”

1 Vide, per Willes, C. J., Parkhurst, v. Smith, Willes, 332; cited and applied, per Alexander, C. B., Colmore v. Tyndall, 2 Yo. & J. 618; per Lord Brougham, C., Langston v. Langston, 2 Cl. & Fin. 243.

2 Whyte v. Burnby, 16 L. J., Q. B. 156; secus as to mere surplusage, post. 3 See Burton v. Reevell, 16 M. & W. 307.(*)

Bac. Abr. "Leases," (K.); and 2 Shep. Touch. by Preston, 272; cited judgment, Doe d. Parsley v. Day, 2 Q. B. 152, et seq.; E. C. L. R. 42; Alderman v. Neate, 4 M. & W. 704.(*)

5 Gore v. Lloyd, 12 M. & W. 478;(*) Doe d. Morgan v. Powell, 8 Scott, N. R. 687; Doe d. Wood v. Clarke, 7 Q. B. 211; E. C. L. R. 53; per Wightman, J., Jones v. Reynolds, 1 Q. B. 517; E. C. L. R. 41; Chapman v. Towner, 6 M. & W. 100;(*) per Mansfield, C. J., Morgan v. Bissell, 3 Taunt. 72; Curling v. Mills, 7 Scott, N. R. 709, 725; Tarte v. Darby, 15 M. & W. 601.(*)