clusion which can be relied on can be drawn, that his intention was to give to other persons standing in the same rank of proximity the same interest in another part of the same land; and where, moreover, the words of the two devises are different, the more natural conclusion is, that, as the testator's expressions are varied, they were altered because his intention in both cases was not the same (g). Distinction between the and disjunc tive In addition to the preceding general observations, another instance may be referred to as shewing the distinction which conjunctive exists between the conjunctive and disjunctive, and which tilusit is so essential to observe whenever it is necessary to assign a construction to a testamentary instrument. A leasehold estate for a long term was devised after the death of A. to B. for life, remainder to his child or children by any woman whom he should marry, and his or their executors, &c., for ever, upon condition, that, in case the said B. should die "an infant, unmarried, and without issue," the premises should go over to his father and his three other children, share and share alike, and their heirs, executors, &c.:-Held, that the devise over depended upon one contingency, viz. B.'s dying an infant, attended with two qualifications, viz. his dying without leaving a wife surviving him, or dying childless; and that the devise over could only take effect in case B. died in his minority, leaving neither wife nor child; and it was observed by Lord Ellenborough, in delivering judgment, that, if the condition had been, “if he dies an infant, or unmarried, or without issue," that is to say, in the disjunctive throughout, the rule would have applied, that in disjunctivis sufficit alteram partem esse veram(h); and, consequently, that if B. had died in his infancy, leaving (9) Judgment, Right v. Compton, 9 East, 272, 273; 11 East, 223: Hay v. The Earl of Coventry, 3 T. R. 83; per Coltman, J., Knight v. Selby, 3 Scott, N. R., 409, 417; Argument, 1 (h) Co. Litt. 225. a.; 10 Rep. 58; trated. children, the estate would have gone over to B.'s father and his children, to the prejudice of B.'s own issue (i). According to the same rule of grammar, also, where a condition inserted in a deed consists of two parts in the conjunctive, both must be performed, but otherwise where the condition is in the disjunctive; and where a condition or limitation is both in the conjunctive and disjunctive, the latter shall be taken to refer to the whole; as, if a lease be made to husband and wife for the term of twenty-one years, "if the husband and wife or any child between them shall so long live," and the wife dies without issue, the lease shall, nevertheless, continue during the life of the husband, because the above condition shall be construed throughout in the disjunctive (k). QUI HÆRET IN LITERA HÆRET IN CORTICE. (Co. Litt. 283. b.)-He who considers merely the letter of an instrument goes but skin-deep into its meaning. Hence, it is a The law of England respects the effect and substance of the matter, and not every nicety of form or circumstance (7). The reason, therefore, and spirit of cases make law, and not the letter of particular precedents (m). rule connected with the interpretation of deeds and written instruments in general, that, where the intention is clear, too minute a stress should not be laid on the strict and precise signification of words (n). For instance, by the grant of a remainder, a reversion will pass, and e converso (o); and, if a (i) Doe d. Everett v. Cooke, 7 East, 272. As to changing the copulative into the disjunctive, see 1 Jarman on Wills, 443 et seq. (*) Co. Litt. 225. a.; Shep. Touch. 138, 139. See also ante, p. 111. (1) Co. Litt. 283; Wing. Max., p. 19. See per Coltman, J., 2 Scott, N. R., 300. (m) Per Lord Mansfield, C. J., Burr. 1364. (n) 2 Bla. Com. 379. 3 (0) Hobart, 27; 2 Bla. Com. 379. lessee covenants to leave all the timber which was growing on the land when he took it, the covenant will be broken, if, at the end of the term, he cuts it down, but leaves it there; for this would be defeating the intent of the covenant, although a literal performance of it (p). mar. In accordance with this principle, it is a further rule, that False grammala grammatica non vitiat chartam (q)—the grammatical construction is not always, in judgment of law, to be followed; and neither false English nor bad Latin will make void a deed, when the meaning of the party is apparent (r). Thus, the word "and" has, as already stated, in some cases, been read "or," when this change was rendered necessary by the context (s). Where, however, a proviso in a lease was altogether ungrammatical and insensible, the Court did not consider themselves bound to find out a meaning for it (t). In interpreting an act of Parliament, also, it is not, in general, a true line of construction to decide according to the strict letter of the act; but the Courts will rather consider what is its fair meaning (u), and will expound it differently from the letter, in order to preserve the intent (x). (P) Woodf. L. and T., 5th ed., 439, citing 1 Esp. N. P. 271. (q) 9 Rep. 48; 6 Rep. 40; Wing. Max., p. 18; Vin. Abr. "Grammar," (A.); Lofft, 441. (r) 2 Bla. Com. 379; Co. Litt. 223. b.; Osborn's case, 10 Rep. 133; 2 Show. 334. (8) Chapman v. Dalton, Plowd. 289; 1 Jarman on Wills, 443 et seq.; ante, p. 297. (t) Doe d. Wyndham v. Carew, (u) Per Lord Kenyon, C. J., 7 Ancient grants, &c. Statutes. CONTEMPORANEA EXPOSITIO EST OPTIMA ET FORTISSIMA IN LEGE. (2 Inst. 11).—The best and surest mode of expounding an instrument is by referring to the time when, and circumstances under which, it was made. There is no better way of construing ancient grants and deeds than by usage (y); and the uniform course of modern authorities fully establishes the rule, that, however general the words of an ancient grant may be, it is to be construed by evidence of the manner in which the thing granted has always been possessed and used; for so the parties thereto must be supposed to have intended (z). Thus, if it be doubtful, on the face of an instrument, whether a present demise or future letting was meant, the intention of the parties may be elucidated by the conduct they have pursued (a). If the words of the instrument be ambiguous, the Court will call in aid the acts done under it as a clue to the intention of the parties (b). Upon the same principle, also, depends the great authority which, in construing a statute, is attributed to the construction put upon it by judges who lived at the time when the statute was made, or soon after, as being best able to determine the intention of the Legislature, not only by the ordinary rules of construction, but especially from knowing the circumstances to which it had relation (c); and it has been resolved, that, for the true and sure interpretation of (y) Per Lord Hardwicke, C., Attorney-General v. Parker, 3 Atk. 576, and 2 Inst. 282, cited, 4 T. R. 819. Per Lord Eldon, C., AttorneyGeneral v. Forster, 10 Ves. jun. 338. (z) Weld v. Hornby, 7 East, 199; Rex v. Osbourne, 4 East, 327. (a) Chapman v. Bluck, 4 B. N. C. 187, 195. (b) Per Tindal, C. J., Doe d. Pearson v. Ries, 8 Bing. 181. (c) 2 Phill. Ev., 9th ed., 347; The Bank of England v. Anderson, 3 B. N. C. 666. all statutes, be they penal or beneficial, restrictive of or enlarging the common law, four points are to be considered: 1st, what was the common law before the making of the act; 2ndly, what was the mischief and defect for which the common law did not provide; 3rdly, what remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth; and, 4thly, the true reason of the remedy; and then the office of the judges is always to make such construction as shall suppress the mischief, and advance the remedy (d). Where, therefore, the words of an act are obscure or doubtful, and where the sense of the Legislature cannot, with certainty, be collected by interpreting the language of the statute according to reason and grammatical correctness, considerable stress is laid upon the light in which it was received and held by the contemporary members of the Profession. "Great regard," says Sir E. Coke, “ought, in construing a statute, to be paid to the construction which the sages of the law, who lived about the time or soon after it was made, put upon it, because they were best able to judge of the intention of the makers at the time when the law was made” (e). (d) Heydon's case, 3 Rep. 7. 703; 2 Inst. 11, 136, 181; per Holt, C. J., Comb. R. 210. |