present subject. Under the stat. 7 Geo. 2, c. 8, it was held, that an executory contract to transfer stock which the party was not possessed of might be void and illegal, and yet that the actual transfer of the stock by such party, or on his procurement, might be legal; and that the apparent difficulty (which, in fact, arose from applying the principle enunciated in the last-mentioned maxim) disappeared on reference to the provisions of the act, which are framed with a view to secure in every case an actual transfer of all stock bargained to be sold, and within the mischief contemplated by which act the above case does not consequently fall (9).

UTILE PER INUTILE NON VITIATUR. (3 Rep. 10).-Surplusage does not vitiate that which in other respects is good and valid.

Words of known signification, but so placed in the context of a deed that they make it repugnant and senseless, are to be rejected equally with words of no known signification (r). Moreover, it is 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 law, then a void habendum, or one differing materially from the grant, may defeat it (s).

(q) M'Callan v. Mortimer (in error), 9 M. & W. 636, 640; S. C., 7 M. & W. 20; 6 M. & W. 58. (r) Vaugh. R. 176.

(s) Argument, Goodtitle v. Gibbs, 5 B. & C. 712, 713, and cases there cited; Shep. Touch. 112, 113. See

another instance of the application of this rule to an order of removal, Reg. v. Rotherham, 3 Q. B. 776, 782; Reg. v. Silkstone, 2 Q. B. 522; to an order under 2 & 3 Vict. c. 85, s. 1, Reg. v. Goodall, 7 Jurist, 86.

of rule in

pleading.

The above maxim, however, applies peculiarly to plead- Application ing; in which it is a rule, that matter immaterial cannot operate to make a pleading double, and that mere surplusage does not vitiate a plea, and may be rejected (†); and although, if a pleading be inconsistent with itself, or repugnant, this is ground for demurrer, yet, where the second allegation, which creates the repugnancy, is merely superfluous and redundant, so that it may be rejected from the pleading without materially altering the general sense and effect, it shall in that case be rejected, at least if laid under a videlicet, and shall not vitiate the pleading (u). But a videlicet cannot make that immaterial which is in its nature material, though the omission of it may render that material which would otherwise not be so. For instance, a videlicet could not make the sum in a bill of exchange immaterial, so as to cure what would otherwise be a variance (r). So, although, in general, in pleading, the time, when laid under a videlicet, need not be strictly proved, yet there are instances in which time happens to form a material point in the merits of the case; and in which, if a traverse be taken, the time laid is of the substance of the issue, and must be strictly proved. In these instances, the pleader must state the time truly at the peril of failure, as for a variance and here the insertion of a videlicet will give no help (y). In like manner, with respect to quantity and value, the pleader may in general allege any quantity or value that he pleases, (at least if it be laid under a videlicet), without risk from

(t) Co. Litt. 303. b.; Steph. Pl., 5th ed., 468; Id. 294 et seq. See Wright v. Watts, 3 Q. B. 89.

(u) Steph. Pl., 5th ed., 415; 2 Wms. Saund. 291 (1), 316 (14); Wyat v. Ayland, 1 Salk. 324; Smith v. Nicolls, 5 B. N. C. 201, 218. As to the nature and use of a videlicet,

see Hobart, R. 171, 172.

(a) Per Patteson, J., Cooper v. Blick, 2 Q. B. 918.

(y) Steph. Pl., 5th ed., 329, and cases there cited. See Parkinson v. Whitehead, 2 Scott, N. R., 620; Harrison v. Heathorn, 6 Scott, N.R., 121.

the variance in the event of a different amount being proved; but there are instances in which it forms part of the substance of the issue, and in these it must be strictly proved as laid (z).

Surplusage, then, including in that term unnecessary matter of whatever description, is not a subject for demurrer. When, however, any flagrant fault of this kind occurs, and is brought to the notice of the Court, it is visited with the censure of the judges. They will also, in some cases, refer the pleadings to their officer to strike out the redundant matter, and in others, where the redundancy is manifest, they will themselves direct such matter to be struck out, and the party offending will sometimes have to pay the costs of the application (a).

Lastly, in connexion with this subject, we may observe, that, although the issue to be tried by the jury ought to be material, single, and specific, yet a party does not make an issue upon the substantial matter bad, merely because he includes in it something of total surplusage and immateriality (b).

Meaning of the rule, and

ARGUMENTUM AB INCONVENIENTI PLURIMUM VALET IN Lege. (Co. Litt. 66. a.)-An argument drawn from inconvenience is forcible in law (c).

In doubtful cases arguments drawn from inconvenience are how qualified, of great weight (d). Thus, arguments of inconvenience are

(z) Steph. Pl., 5th ed., 336, 337; Nightingale v. Wilcoxon, 10 B. & C. 215; Rivers v. Griffiths, 5 B. & Ald. 630; Rubery v. Stevens, 4 B. & Ad. 241; Cousens v. Paddon, 5 Tyrw 547; Falcon v. Benn, 2 Q. B. 314; Marks v. Lahee, 3 B. N. C. 408.

(a) See Steph. Pl., 5th ed., 467, 468, 469.

(b) Per Tindal, C. J., Palmer v. Gooden, 8 M. & W. 894.

(c) Co. Litt. 97, 152. b.
(d) Per Heath, J., 1 H. Bla. 61.

sometimes of great value upon the question of intention. If there be in any deed or instrument equivocal expressions, and great inconvenience must necessarily follow from one construction, it is strong to shew that such construction is not according to the true intention of the grantor; but, where there is no equivocal expression in the instrument, and the words used admit only of one meaning, arguments of inconvenience prove only want of foresight in the grantor. But because he wanted foresight, courts of justice cannot make a new instrument for him: they must act upon the instrument as it is made (e); and generally, if there be any doubts what is the law, judges solve such doubts by considering what will be the good or bad effects of their decision; but, if the law is clear, inconveniences afford no argument of weight with the judge: the Legislature only can remedy them (ƒ). And, again, “where the law is known and clear, though it be unequitable and inconvenient, the judges must determine as the law is, without regarding the unequitableness or inconvenience. Those defects, if they happen in the law, can only be remedied by Parliament; therefore, we find many statutes repealed and laws abrogated by Parliament as inconvenient, which before such repeal or abrogation were, in the courts of law, to be strictly observed. But, where the law is doubtful and not clear, the judges ought to interpret the law to be as is most consonant to equity and least inconvenient (g)." And hence, the doc

(e) Per Sir J. Leach, V.-C., Att.Gen. v. Duke of Marlborough, 3 Madd. 540; per Burrough, J., Deane v. Clayton, 7 Taunt. 496; per Best, C. J., Fletcher v. Lord Sondes, 3 Bing. 590.

(f) Per Lord Northington, C.,

Pike v. Hoare, 2 Eden, 184; per Abbott, C. J., 3 B. & C. 471. See many authorities on this subject cited, Ram's Science of Legal Judgment, 54 et seq.

(g) Vaugh. R. 37, 38.

Public incon

venience.

Argument, how applied

ing statutes.

trine, that nihil quod est inconveniens est licitum(h), which is frequently advanced by Sir E. Coke, must certainly be received with some qualification, and must be understood to mean, that against the introduction or establishing of a particular rule or precedent inconvenience is a forcible argument (i).

This argument ab inconvenienti, moreover, is, under many circumstances, valid to this extent, that the law will sooner suffer a private mischief than a public inconvenience,—a principle which we have already had occasion to consider in its general application. It is better to suffer a mischief which is peculiar to one, than an inconvenience which may prejudice many (k).

Lastly, in construing an act of Parliament, the same rule in interpret applies. If the words used by the Legislature, in framing any particular clause, have a necessary meaning, it will be the duty of the Court to construe the clause accordingly, whatever may be the inconvenience of such a course. But, unless it is very clear that violence would be done to the language of the act by adopting any other construction, any great inconvenience which might result from that suggested may certainly afford fair ground for supposing that it could not be what was contemplated by the Legislature, and will warrant the Court in looking for some other interpretation ().

(h) Co. Litt. 66. a.

(i) Ram, Science of Legal Judg. ment, 57.

(*) Co. Litt. 97. b., 152. b.; Hobart, 224; ante, p. 1.

(1) Judgment, Doe d. Governors of Bristol Hospital v. Norton, 11 M. & W.928; Judgment, Turner v. Sheffield Railway Company, 10 M. & W.

434.