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but in the obligatory part the word pounds was omitted, it being merely stated that the obligor became bound " in 1770 of lawful money, &c.," without stating what description of money; it was held that the word pounds might be supplied, by reference to the condition from which it might reasonably, and with moral certainty, be collected that the intention was, that the obligor, in order to secure the payment of the money mentioned in the condition, should become bound in a penalty consisting of pounds sterling (r). And the omission of the word "pounds” in the body of a bill of exchange, may be aided by the proper superscription of the sum, thus,—" 501." on the face of the instrument (s), or even without such superscription (t).
In debt on bond the defendant pleaded a release, and therein it was recited “ that whereas J. S. had arrested the defendant in the name of the plaintiff without his knowledge, he the plaintiff thereby released to the defendant all demands on his own account.” It appeared that the obligation was taken by J. S. in the name of the plaintiff, in trust for the children of J. S.; and thereupon J.S. caused the defendant to be arrested in the name of the plaintiff, upon which the release was given. It was adjudged that the obligation was not released thereby, because, although it was taken in the name of the plaintiff, it was not on account of the plaintiff, but on account of the children of J.S. And the words "upon his own account” were put in to some purpose, and they could be for no purpose but to distinguish the demands that he had in his own right, from what he had in the right of, or in trust for, others (u). And an authority to a broker to distrain C's goods, with an indemnity “ against all costs the broker might be at on that account," only applies to cases where the distress is illegal, on account of the landlord having no right to distrain ; and does not afford the broker a remedy against the landlord, where the broker has to pay the tenant damages, &c., in conscquence of the acts of the broker's servants in regard to the goods (x).
(1) Coles v. Hulme, 3 M. & R. 86; being applicable to the higher amount, 8 B. & C. 568, S. C. See other in. parol evidence to show that the words stances, &c., Id. 574, note (a). "and forty-five” had been omitted by
(s) Elliott's Case, 2 East P. C. 951; mistake was rejected, Saunderson v. Chitty on B. 8th ed. 170, 182. Piper, 5 Bing. N. C. 425.
(1) Phipps v. Tanner, 5 C. & P. (u) Stokes v. Stokes, 1 Lev. 272 ; 488; and see Rer v. Post, Bayl. on 2 Keb. 530, 613; 1 Ventr. 35, S. C. Bills, 8, (n). Where a bill was ex- See post, 84, 85. pressed in figures to be drawn for 245l., (.*) Draper v. Thompson, 4 C. & P. and in words for 2001., the stamp 84, cor. Tindal, C. J.
An agreement was made between the owner of premises, and a surveyor, that thic latter should negociate with the crown for the sale of the premises to the crown, and should be paid a commission on the sum which might be obtained by private treaty, arbitration, &c. It was held that the surveyor was not entitled to be paid, until the price of the estate was actually received (y).
Where J. S. gave a guarantee to P. that he would indorse any bill which A. B. might give to P. in part payment of an order for certain goods then executing for A. B.; P. to allow 51. per cent. on the amount of the bill for the guarantee, and in part payment of the goods ; and A. B. gave P. a bill at eighteen months, which the latter kept for seventeen months and ten days, and then, finding that A. B. was insolvent, applied for the first time to J. S. for his indorsement, tendering the amount of the commission; it was held that P. was concluded by his laches, and that J. S. was not liable on his guarantee. The court considered that the spirit of the agreement was, that although P. had the option to call for J. S.'s indorsement, on paying him the commission, and there was no express limitation as to time, yet he was bound to exercise such option within a reasonable period (z).
So covenant lies for rent accruing to the landlord before his reentry, on a breach of covenant for non-payment of rent, though it be provided by the lease that the lessor on such re-entry should have the premises “as if the indenture had never been made (a);" and Tindal, C. J., observed, " The proper construction of this condition is, that from the time of re-entry, the lessor shall have the land as if the indenture had not been made ; for the period previous to re-entry the lessee or assignee had it subject to the indenture. It would be a singular construction to hold, that to an action for rent on an instrument under seal, the lessee or assignee may plead, not payment, but that the lessor entered for non-payment, in other words, may deprive the lessor of his rent, because he declines to submit to any further loss. The argument would apply equally to covenants for repairs, or
(y) Bull v. Price, 5 M. & P. 2. But it seems a fraudulent neglect to receive the money, would not bar the claim of the surveyor, id., per Tindal, C. J. Semble, in such case the decla
ration should be specially framed to meet the facts.
(2) Payne v. Ives, 3 D. & R. 664 ; see Curry v. Edensor, 3 T. R. 524.
(a) Hartshorne v. Watson, 4 Bing. N. C. 178; 5 Scott, 506, S. C.
other services to be rendered by the lessee, and is so unreasonable that it cannot be upheld.”
So a contract for the purchase of a cargo of Gallipoli oil, consisting of “ L. R. 240 casks,” cannot be vitiated on the ground that some of the casks are defective, provided the oil be not thereby injured. The contract is to purchase oil, not casks; and it would be of serious consequence to hold that every defect in the receipt vessel would entitle a purchaser to avoid his contract for the commodity contained in it (6).
So where a tenant agreed to work a colliery so long as it was “ fairly workable," and it appeared that there were still coals in the mine, but of such a description that it would not pay to work it; the court held that under the words, “fairly workable,” the tenant was not obliged to work the mine at a dead loss (c).
So on the demise of a very old house, a covenant by the tenant to repair and leave in repair, does not render it necessary that the house should be restored in an improved state, nor that the consequences of the elements should be averted; but the tenant has the duty of keeping it as nearly as may be in the state in which it was at the time of the demise (d).
Nor can a tenant under a covenant to repair be made liable for the extra expense of laying a new floor down on an improved plan (e).
All latitude of construction must submit to this restriction, namely, that the words and language of the instrument will bear the sense sought to be put upon them (f). In every deed there must be such a degree of moral certainty, as to leave in the mind of a reasonable man no doubt of the intent of the parties (g). “ We cannot put words in a deed which are not there, or put a construction on the words of a deed directly contrary to the plain sense of them (h).”
The Construction shall be Liberal-The terms used in an
(6) Gover v. Dedalzen, 3 Bing. N. Dougl. 27, per Mansfield, C.J.; ParkC. 717; 4 Scott, 453, S. C.
hurst v. Smith, Willes, R. 332, per (c) Jones v. Shears, 7 C. & P. 346. Willes, C. J.
(d) Per Tindal, C. J., Gutteridge v. (g) Per Lord Tenterden, Coles v. Munyard, 7 C. & P. 133; 1 M. & Hulme, 8 B. & C. 573 ; 3 M. & R. Rob. 334, S. C.
86, S. C.; ante, 73. (c) Soward v. Leggatt, 7 C. & P. (h) Per Willes, C. J., in Parkhurst 613.
v. Smith, Willes, R. 332. (Ilotham v. East India Company,
agreement shall prevail according to their most comprehensive popular sense; if there be nothing to show that they were meant to be used in a more confined interpretation. An indefinite expression shall be understood universally, unless there be otherwise some reason to restrain it. Thus the masculine shall be understood to include both genders; the word men shall comprise women also ; and if a licence be given to kill any beast of chase in such a forest, except bucks, the exception includes does also, there being nothing to show that the male was used in opposition to the female (i). And it is laid down, that if two persons have goods in jointure, and give all their goods, not only these they have in jointure, but their several goods also pass (k).
The Construction shall be Favourable : so that the agreement may, if practicable, be supported (!). If therefore the words used be susceptible of two senses, one agreeable to, the other against law, the former sense shall be adopted (m). There is no presumption against the validity of a contract; and the court will, if possible, construe an agreement so that it may have some operation, rather than defeat it on the ground of assumed illegality, &c. (n). A bond conditioned " to assign all offices,” will be construed to apply only to such offices as are by law assignable (o). Upon the same principle, if by a particular construction the stipulation of the party would be frivolous and utterly ineffectual, and the apparent object of the contract in reference to its subject matter, &c. would be frustrated; but a contrary exposition, though, per se, the less appropriate, (looking to words only,) would produce a different effect; the latter interpretation shall be applied to the agreement, if it can possibly be supported by any thing in the contract, or the nature thereof.
Thus if a lease be to A.“ for life,” rendering rent at Michaelmas, and there be a demise after his death to his executor UNTIL Michaelmas then next; the executor (notwithstanding the word
(i) Brooke, Exposit. des Termes, 39. stood in that according to which it
(k) Year Book, 19 Hen. 6, 41; may have some effect, than in that Hetley, 9.
whereby it cannot produce any." (1) 2 Bla. Com. 279; Purkhurst v. (m) Co. Lit. 42; 2 Bla. C. 380. Smith, Willes, R. 332, per Willes, C. (n) Id. See Pugh v. Duke of Leeds, J.; Goodtitle' v. Bailey, Cowp. 600, Cowp. 714; Noy's Maximns, 14. per Lord Mansfield. So by the French (0) Harrington v. Kloprogge, 4 Civil Code, book S, tit. 365, art. 1157, Dougl. 5, S. C., cited in 2 'Chitty, R. « when a clause is susceptible of two 475; and Palmer v. Bute, 2 B. & B. meanings, it must rather be under- 678, nole.
until is in its general sense exclusive,) shall have the premises for the whole of Michaelmas day after the testator's death, that is, the term shall end with and upon Michaelmas day, and not the day before ; because no rent would otherwise be payable to the lessor (p). A person, under a power reserved in his marriage settlement to lease for twenty-one years in possession, but not in reversion, granted a lease to his only daughter for twentyone years, to commence " from” the day of the date.
This was held to be a good lease; and it was laid down by the court, that the word “from” may mean either inclusive or exclusive, according to the context and subject matter, and that they would construę it so as to effectuate the deeds of the parties, and not to destroy them (9).
The Popular Meaning of Words to be adopted.-An agreement is to be construed according to its sense and meaning, as collected from the terms used in it, which terms are themselves to be understood in their plain, ordinary and popular sense, unless they have, generally, in respect to the subject-matter, as by the known usage of trade or the like, acquired a particular sense, distinct from the popular sense of the same words; or unless the context evidently points out that they must, in the particular instance, and in order to effectuate the immediate intention of the parties to that contract, be understood in some other special sense (r). Thus the term Insolvency may, according to the context, mean a general inability of a party to pay his debts, and is not confined to the taking the benefit of the Insolvent Debtors' Act($).
(p) Stated to have been so adjudged, liament; per Lord Tenterden, Rer v. Mich., 30 Eliz., K. B. ; 3 Leon. 211; Winstanley, 1 C. & J. 414; Parnaby Noy's Max. 14; Bac. Max. 47. v. Lancuster Cunal Company, 3 Nev.
(9) Pugh v. Duke of Leeds, Cowp. & P. 523; Rex v. Poor Law Com714; 2 Camp. 294. "And the onus missioners re $t. Pancras, 6 Ad. & E. 7. lies on the party seeking to narrow the (s) Doe dem. Gatehouse v. Rees, 6 popular meaning of words ; Doe dem. Scott, 165 ; 4 Bing. N. C. 384, S.C.; Knott v. Sawton, 4 Bing. N. C. 455; Parker v. Gossuge, 2 C. M. & R. 617; Doe v. Rees, 6 Scott, 165.
1 Gale, 288 ; 1 Tyrw. & G. 105, S. C.; (r) Per Lord Ellenborough, Roberts and see De Tastet v. La Tavernier, 1 son v. French, 4 East, 135; Parkhurst Keen, 161. Such," means of the v. Smith, Willes, 332, per Willes, C. J.; same description, not identical; per 3 Stark. Ev. 1033; 1 Powell on Cont. Taunton, J., in Fenton v. Swallow, i 373, cites argument of counsel in Ad. & E. 732. As to the construction Plowd. 169. The same rule applies of the words, “ null and void to all as to the construction of an act of par- intents and purposes," see Peurce v.