other means can the language of the instrument be made to speak the real mind of the party.1 The following cases may be mentioned as falling within the scope. of the preceding remarks: 1st, where the instrument is in a foreign language, in which case the jury must ascertain the meaning of the terms upon the evidence of persons skilled in the particular language; 2dly, ancient words may be explained by contemporaneous usage; *3dly, if the instrument be a mercantile contract, the [*480] meaning of the terms must be ascertained by the jury according to their acceptation amongst merchants; 4thly, if the terms are technical terms of art, their meaning must, in like manner, be ascertained by the evidence of persons skilled in the art to which they refer. In such cases, the Court may at once determine upon the inspection of the instrument, that it belongs to the province of the jury to ascertain the meaning of the words, and, therefore, that, in the inquiry, extrinsic evidence to some extent must be admissible." It may be scarcely necessary to observe, that the maxim under consideration applies equally to the interpretation of an act of Parliament, the general rule being, that a verbis legis non est recedendum.3 A court of law will not make any interpretation contrary to the express letter of a statute; for nothing can so well explain the meaning of the makers of the act as their own direct words, since index animi sermo, and maledicta expositio quæ corrumpit textum ;* it would be dangerous to give scope for making a construction in any case against the express words, where the meaning of the makers is not opposed to them, and when no inconvenience will follow from a literal interpretation." "Nothing," observed Lord Denman, C. J., in a recent case," "is more unfortunate than a disturbance of the plain language of the legislature, by the attempt to use equivalent terms." I Per Tindal, C. J., 5 Scott, N. R. 1037, 1038. 2 Per Erskine, J., 5 Scott, N. R. 988; per Parke, B., Clift v. Schwabe, 3 C. B. 469, 470; E. C. L. R. 54. As to the construction of a settlement in equity, see, per Lord Campbell, Evans v. Scott, 1 H. L. Cas. 66. 35 Rep. 119; cited, Wing. Max., p. 25. 44 Rep. 35; 2 Rep. 24; 11 Rep. 34; Wing. Max., p. 29. 5 Eldrich's case, 5 Rep. 119; cited, Argument, Gaunt v. Taylor, 3 Scott, N. R. 709. 6 Everard v. Poppleton, 5 Q. B. 184; E. C. L. R. 48; per Coltman, J., Gadsby, app., Barrow, resp., 8 Scott, N. R. 804. *CERTUM EST QUOD CERTUM REDDI POTEST. That is sufficiently certain which can be made certain. [*481] The above maxim, which sets forth a rule of logic as well as of law, is peculiarly applicable in construing a written instrument. For instance, although every estate for years must have a certain beginning and a certain end, yet "albeit there appear no certainty of years in the lease, yet if by reference to a certainty it may be made certain, it sufficeth;" and, therefore, if a man make a lease to another for so many years as J. S. shall name, this is a good lease for years; for though it is at present uncertain, yet when J. S. hath named the years, it is then reduced to a certainty. So, if a person make a lease for twenty or more years, if he shall so long live, or if he shall so long continue parson, it is good, for there is a certain period fixed, beyond which it cannot last, though it may determine sooner on the death of the lessor, or his ceasing to be parson.2 It is true, said Lord Kenyon, C. J., that there must be a certainty in the lease as to the commencement and duration of the term, but that certainty need not be ascertained at the time; for if, in the fluxion of time, a day will arrive which will make it certain, that is sufficient. As if a lease be granted for twenty-one years, after three lives in being, though it is uncertain at first when that term will commence because those lives are in being, yet when *they [*482] die it is reduced to a certainty, and id certum est quod certum reddi potest, and such terms are frequently created for raising portions for younger children.3 Again, it is a rule of law, that "no distress can be taken for any services that are not put into certainty nor can be reduced to any certainty, for id certum est quod certum reddi potest; and, accordingly, where land is demised at a rent which is capable of being reduced to a certainty, the lessor will be entitled to distrain for the same.5 1 Co. Litt. 45, b. See Lovelock v. Frankland, 16 L. J., Q. B. 182. The maxim is applied to an indenture of apprenticeship, Reg. v. Inhabitants of Wooldale, 6 Q. B. 549, 566; E. C. L. R. 51. 22 Bla. Com. 143; 6 Rep. 35; Co. Litt. 45, b. 3 Goodright d. Hall v. Richardson, 3 T. R. 463. Co. Litt. 96, a; 142, a; Parke v. Harris, 1 Salk. 262. 5 Daniel v. Gracie, 6 Q. B. 145; E. C. L. R. 51. See Pollitt v. Forest, 16 L. J., Q. B. 424. In like manner, in the case of a feoffment, the office of the premises of the deed is twofold: first, rightly to name the feoffor and the feoffee; and, secondly, to comprehend the certainty of the lands or tenements to be conveyed by the feoffment; and this may be done either by express words, or by words which may by reference be reduced to a certainty, according to the principle, certum est quod certum reddi potest. So, a grant shall be void if it be totally uncertain; but if the King's grant refers to another thing which is certain, it is sufficient, as if he grant to a city all liberties which London has, without saying what liberties London has.2 An agreement in writing for the sale of a house, did not by description ascertain the particular house, but it referred to the deeds as being in the possession of A. B., named in the agreement. The Court held the agreement *sufficiently certain, inasmuch as it [*483] appeared upon the face of the agreement that the house re ferred to was the house of which the deeds were in the possession of A. B., and, consequently, the house might easily be ascertained before the Master, and id certum est quod certum reddi potest.3 A testator having devised his estates in a particular way, directed that a different disposition of them should take place "in case certain contingent property and effects in expectancy shall fall in and become vested interests to my children." The children, it appeared, were entitled to no vested interests at the date of the will; and the Court, in accordance with a rule which we have already stated, refused to admit evidence offered for the purpose of showing that the testator referred to expectations from particular individuals, which had, in fact, subsequently been realized. The Master of the Rolls, however, observed that, if at the making of the testator's will his children had been entitled to any contingent interests, evidence would have been plainly admissible to ascertain those interests; because the expression of contingency had a definite legal meaning, and id certum est quod certum reddi potest, so that the evidence would not in that case have added to the will, but would have explained it.^ 1 Co. Litt. 6, a; 4 Cruise, Dig., 4th ed. 269. explain, or qualify the words in the premises; The office of the habendum is to limit, but if the words of the habendum are manifestly contradictory and repugnant to those in the premises, they must be disregarded: Doe d. Timmis v. Steele, 4 Q. B. 663; E. C. L. R. 45. 2 Com. Dig., "Grant," (E. 14), (G. 5); Finch, Law, 49. 3 Owen v. Thomas, 3 My. & K. 353. Again, the word "certain" must, in a variety of cases, where a contract is entered into for the sale of goods, refer to an indefinite quantity at the time of the contract made, and must mean a quantity which is to be ascertained according to the above maxim.1 *And where the law requires a particular thing to be done, [*484] but does not limit any period within which it must be done, the act required must be done within a reasonable time; and a reasonable time is as capable of being ascertained by evidence, and, when ascertained, is as fixed and certain as if specified by act of Parliament.2 Where it was awarded, that the costs of certain actions should be paid by the plaintiff and defendant in specified proportions, the award was held to be sufficiently certain, since it would become so upon taxation of costs by the proper officer.3 The proper office of the innuendo in a declaration for libel being to exhibit with certainty to the Court the nature of the imputation cast upon the plaintiff, may also be noticed in connexion with the maxim under consideration; for, if there be contained in the alleged libel matter which is capable of receiving the interpretation put upon it by the innuendo, that will be sufficient to support the count, even without any explanatory averments, which are usually introduced to fix and point the libel; whereas, if the words complained of cannot apply to the individual plaintiff, no previous averments or subsequent innuendoes can help to give the words an application which they have not. "Suppose," for instance, "the words to be a murder was committed in A.'s house last night,' no introduction can warrant the innuendo 'meaning that B. committed the said murder,' nor would it be helped by the finding of the jury for the plaintiff; for the court must see that the words *do not and cannot mean it, and would arrest the judgment accordingly-Id certum est quod [*485] certum reddi potest.' Lastly, with respect to an indictment, the maxim just cited must be understood in a restricted sense; for it is laid down, that an indictment ought to be certain to every intent, and without any intendment to the contrary; and the charge contained in it must be 1 Per Lord Ellenborough, C. J., Wildman v. Glossop, 1 B. & Ald. 12. 2 See per Lord Ellenborough, C. J., Palmer v. Moxon, 2 M. & S. 50; E. C. L. R. 28. 3 Cargey v. Aitcheson, 2 B. & C. 170; E. C. L. R. 9. See Pedley v. Goddard, 7 T. R. 73; Wood v. Wilson, 2 Cr., M. & R. 241;(*) Waddle v. Downman, 12 M. & W. 562.(*) 4 Judgment, Solomon v. Lawson, 15 L. J., Q. B. 257. 5 Cro. Eliz. 490. sufficiently explicit to support itself; for no latitude of intention can be allowed to include anything more than is expressed.1 Neither is the maxim above considered applicable where a general judgment has been given upon an indictment containing several counts, one of which is bad; for in this case, the court is not at liberty to apply the judgment to that part of the record which would support it, but will hold that the judgment was altogether erroneous.2 But it is no ground for a new trial that the jury have found a verdict for the Crown on several counts of an indictment, some of which are bad, as it cannot be intended that judgment will be given on the bad counts.3 [*486] *UTILE PER INUTILE NON VITIATUR. Surplusage does not vitiate that which in other respects is good and valid. It is a rule of extensive application with reference to the construction of written instruments, and in the science of pleading, that matter which is mere surplusage may be rejected, and does not vitiate the instrument or pleading in which it is found-surplusagium non nocet is the maxim of our law. 5 Accordingly, where words of known signification were so placed in the context of a deed that they make it repugnant and senseless, they are to be rejected equally with words of no known signification. It is also a rule in conveyancing, that, if an estate be granted in any premises, and that grant is express and certain, the habendum, although repugnant to the deed, shall not vitiate it. If, however, the estate granted in the premises be not express, but arise by implication of the law, then a void habendum, or one differing materially from the grant, may defeat it." 1 Rex v. Wheatley, 2 Burr. 1127; Rex v. Perrott, 2 M. & S. 381; E. C. L. R. 28; Rex v. Stevens, 5 B. & C. 246; E. C. L. R. 11. Dickins. Quarter Sess., by Mr. Serjt. Talfourd, 5th ed. 227, (a). With respect to the degree of certainty requisite in an indictment, the reader is also referred to 3 Burn, Just., 29th ed. 864, where the cases upon this subject are collected. 2 Ante, p. 258; Campbell v. Reg., 15 L. J., Q. B. 192. 3 Reg. v. Gompertz, 16 L. J., Q. B. 121. In further illustration of the above maxim, see Barker v. Butcher, 15 L. J., Q. B. 289, 291; Woolley v. Smith, 3 C. B. 610, 617; E. C. L. R. 54. 94. 4 Branch, Max., 5th ed. 216; 5 Vaugh. R. 176. Non solent quæ abundant vitiare, scripturas, D. 50, 17, • Argument, Goodtitle v. Gibbs, 5 B. & C. 712, 713; E. C. L. R. 11, and cases there cited; Shep. Touch. 112, 113; Hobart, 171. See, also, instances of the application |