in which the subject of the contract lies, is not sufficient to establish, as a matter of law, that the meaning of the contract is in conformity with the custom (o). CH. V. s. 7. Construction according to Lex Loci. to enforce a fori. But in seeking to enforce a foreign contract by action in this Proceedings country, all the provisions of our law which have relation to, and which regulate the time and mode of proceeding, and the practical conduct of the suit, must be consulted without regard to the foreign law upon these subjects;-the rule being, that as to everything that is incident to the remedy at law for a breach of the contract, the lex loci fori in which the remedy is sought shall prevail (p). Thus it is held, that a verbal agreement made abroad, although it may be enforceable in the country where it is made, cannot be enforced in the Courts of this country, if it be an agreement which the Statute of Frauds requires to be put into writing (q). And the time of limitation of the action falls within the same rule, and is governed by the law of the country where the action is brought (r). Thus, where an instrument was made in Scotland, which by the Scots law had the operation and effect of a bond; and, by that law, a term of forty years was allowed, within which a suit might be instituted upon such an obligation; to an action brought in this country upon the instrument as a Scots bond, the declaration in which set forth the Scots term of limitation, the defendant pleaded the English Statute of Limitations; and upon demurrer to the plea it was held, that the remedy in this country was to be governed by our law of limitation, and that the claim here was barred thereby (8). Where it appeared, in an action upon an unstamped Jamaica agreement, that by the law of that island the contract required a stamp, and was void for want of it: the Court held, that the action could not be maintained in this country (t): and so it would be in (0) Per Lord Denman, C.J., Clayton v. Gregson (1836), 5 A. & E. 302. (p) See Rothschild v. Currie (1841), 1 Q. B. 43, 49; Huber v. Steiner (1835), 2 Scott, 304; Bullock v. Caird (1875), L. R., 10 Q. B. 276. By the Code Civil, Book I., tit. 1, art. 13, it is provided "that the foreigner who shall have been permitted by the Government to establish his domicile in France, shall enjoy in that country all civil rights, so long as he shall continue to reside there. "A Frenchman may be summoned (q) Leroux v. Brown (1852), 12 C. B. (s) British Linen Company v. Drum- (t) Alves v. Hodgson (1797), 7 T. R. 241. Effect of foreign stamp law. CH. V. s. 7. Construction according to Lex Loci. Assignee of ment. which our Courts will contract made abroad. any case where, for want of a stamp, a contract made in a foreign country is void (u). But where, by the revenue laws of a foreign state, a document must be stamped merely in order to its being receivable in evidence in the Courts of that state, the want of a stamp, in pursuance of the lex loci, forms no objection to its admissibility in evidence in this country; for our Courts do not notice the revenue laws of any other state. And therefore, where an action was brought for money lent in France, and unstamped receipts were produced in proof of the loan; evidence to show that by the law of France such receipts required stamps to render them valid was rejected (x). And the assignee of an Irish judgment by cognovit might, by the common law, sue in this country in his own name (y). "not It has been held, however, that our Courts will not enforce a contract made abroad, if it be expressly stipulated in such connot enforce a tract, that no proceeding shall be thereon in a foreign country. This was first decided in the case of Gienar v. Meyer (z), which was an action brought by a foreign seaman for wages, he having, in his own country, entered into articles with the master, who was also a foreigner, by one clause in which the crew had agreed to institute any suit against the master in foreign countries," but to "abide by the maritime code of their own country, and the adjudication of their own Courts." And in Johnson v. Machielsne (a) -which was also an action for seaman's wages, and where it appeared that the crew, who were foreigners, had agreed in their own country, "that they would not in foreign parts prosecute payment of any money whatever of the captain, but be satisfied with what he might be pleased to advance them abroad in deduction of their wages "-it having been contended, that the jurisdiction of our Courts could not be thus excluded, Lord Ellenborough said, "by the personal contract between the individuals before the Court, it is expressly stipulated that the mariners shall not sue the captain for wages in foreign parts. It is impossible for me to say that this stipulation is void." So it would appear, that if a foreign law of limitation extinguished, not merely the remedy on a contract, but the right on the contract itself, the Courts of this country would take notice that this was so, and give effect thereto (b). (u) Bristow v. Sequeville (1850), 5 Exch. 275. (x) Bristow v. Sequeville (1850), 5 Exch. 275; James v. Catherwood (1823), 3 D. & R. 190. (y, O'Callaghan v. Marchioness of Thomond (1810), 3 Taunt. 82. (2) Gienar v. Meyer (1796), 2 H. BI. 603; 3 R. R. 520. (a) Johnson v. Machielsne (1811), 3 Camp. 44; 13 R. R. 745. (b) Huber v. Steiner (1835), 2 Scott, 304. And it seems that, where money is due upon a contract, it is to be paid according to the currency of the place or country in which it is stipulated that the payment shall be made (c). 66 CH. V. s. 7. Construction according to Lex Loci. Mode of payment. Verba cartarum fortius accipiuntur contra proferentem. SECT. 8.-Construction most strongly against Grantor. Another rule is, that a deed or other instrument shall be taken most strongly against the grantor or contractor. Thus, if tenant in fee simple grant to any one an estate for life" generally, it shall be construed an estate for the life of the grantee (d). So, if two tenants in common grant a rent of ten shillings, this is several, and the grantee shall have ten shillings from each; but if they make a lease, and reserve ten shillings, they shall have only ten shillings between them (e). So, in the case of a guarantee, if the Guarantee. party who gives it uses ambiguous language, such ambiguity will be taken most strongly against himself (f). And the same rule holds in the case of an exception in a lease; so that, if there be Exception in any doubt about the meaning of the exception, the words thereof, being the words of the lessor, are to be construed favourably for the lessee, and against the lessor (g); and the rule applies "more Re-entry. strongly" than in ordinary cases to a proviso for re-entry (gg). lease. So, if a carrier give two different notices, limiting his respon- Notices. sibility in cases of loss of goods, he is bound by that which is least beneficial to himself (h). So, a notice under which a party claims a general lien is to be construed most unfavourably to himself (i). So, if an instrument be made in terms so ambiguous as to make it doubtful whether it be a bill or a note, the holder may, as against the maker of the instrument, treat it as either at his election (k). So where a man, for good consideration, gave a “Never” to note expressed to be "for money borrowed, which I promise never to pay;" the word never was rejected (1). pay. This rule of construction, however, is clearly subject or subor- Limitations dinate to all those principles of exposition to which we have before of this rule. adverted. For although it is a rule calculated and intended to (c) Story's Conf. of Laws, s. 272 a; and see Scott v. Beavan (1831), 2 B. & Ad. 78. (d) 5 Co. 7 b; Shep. Touch. 87. (e) Co. Litt. 197 a. (ƒ) Per Tindal, C.J., Hargreave v. Smee (1829), 6 Bing. 244. (g) Shep. Touch. 100; Earl of Cardigan v. Armitage (1823), 2 B. & C. 197; per Bayley and Holroyd, JJ., Bullen v. Denning (1826), 5 B. & C. 842. (gg) Per Cur., Doe d. Abdy v. Stevens, or Jeapes (1832), 1 B. & Ad. 299; 1 L. J. (N.S.) K. B. 101; 37 R. R. 429; and see Johnson v. Edgware, &c. Rail. Co. (h) Munn v. Baker (1817), 2 Stark. (i) See Cumpston v. Haigh (1836), 2 Scott, 684. (k) Lloyd v. Oliver (1852), 18 Q. B. 471; Edis v. Bury (1827), 6 B. & C. 433. (2) Per Lord Mansfield, C.J., Russell v. Langstaff (1781), B. R. M. 21 G. 3; per Lord Hardwicke, C., Simpson v. Vaughan (1739), 2 Atk. 32. CH. V. s. 8. Construction of Contracts against Grantor. this rule. Taylor v. defeat studied ambiguity of expression, yet it is also considered as a rule of some strictness and rigour, and the last to be resorted to; a rule, in fact, never to be relied upon, but where other rules of construction fail (m). Accordingly, it cannot be applied except Limitation of in cases of ambiguity (n); and even then regard must first be had to the apparent intention of the parties, as it is to be collected from the whole context of the instrument (o). In Taylor v. St. Helen's Corporation (p), indeed, Jessel, M.R., went so far as to say that he did not see how the maxim, that a grant, if there is any difficulty or obscurity as to its meaning, is to be construed most strongly against the grantor, could, according to the established rules of construction as settled in the House of Lords, be considered to have any force at the present day, though found in a great many text-books and also in a great many judgments of ancient date. But the three House of Lords cases (g) by which Jessel, M.R., probably considered "the rules of construction to be settled," all turned upon the construction of wills; and Lord Selborne has since declared in the House of Lords (r) that "it is well settled that the words of a deed, executed for valuable consideration, ought to be construed, as far as they properly may, in favour of the grantee;" and it is submitted that the dictum of Jessel, M.R., was incorrect, and that a considerable effect, though a limited one, ought to be given to the maxim, Verba chartarum fortius accipiuntur contra proferentem (8). Personal representatives impliedly bound. SECT. 9.-Rights and Liabilities of Executors. The parties to a contract, by implication, bind not only themselves, but their personal representatives (t). Executors, therefore, whether named in the contracts or not, are liable on all contracts of the testator which are broken in his lifetime; and, with the exception of contracts in which personal skill or taste is (m) Per Cur. Lindus v. Melrose (1858), The 3 H. & N. 177, 182, Ex. Cham. ; 2 Bl. (n) Per Tindal, C.J., Borradaile v. (0) Per Lord Eldon, C.J., Browning v. Wright (1799), 2 B. & P. 13; 5 R. R. 521; per Park, J., Nind v. Marshall (1819), 1 B. & B. 319. (p) Taylor v. St. Helen's Corporation (1877), 6 Ch. D. at p. 270. (q) Grey v. Pearson (1857), 6 H. L. C. 61; Roddy v. Fitzgerald (1857), 6 H. L. C. 823; Abbott v. Middleton (1858), 7 H. L. C. 68. (r) In Neill v. Devonshire (Duke of) (1882), 8 App. Cas. at p. 149; and see, too, per Lord Selborne also in Birrell v. Dryer, 9 App. Cas. at p. 350. (8) Co. Litt. 36 a. And see Broom's Legal Maxims, 7th ed., at p. 441; citing Birton v. English (1883), 12 Q. B. D. at p. 220; Pollock on Contracts, 7th ed., at p. 255. (t) Wills v. Murray (1850), 4 Exch. 843, 865; and see Ch. XXVI., sect. 3, post. required, on all such contracts broken after his death (u); and such parties may likewise sue on a contract, although they be not named therein (x). CH. V. s. 9. Construction of Contracts (Executors). But the heir is not bound by the obligation of the ancestor Aliter as to unless he be expressly named therein (y). the heir. SECT. 10.-Contracts, when Joint or Several. As to the joint or several liability of co-contractors the true rule is that even in the absence of express words, an agreement primâ facie joint may be construed to be several, if the interest of either party, appearing upon the face of the instrument, shall require that construction (2). And so, on the other hand, though there be words which primâ facie create a several agreement, yet, if the agreement be ambiguous, it will be held to be joint if the interest be joint, and several if the interest be several (a). Where a contract is joint, all the co-contractors have a right to insist on being sued together. If by reason of their not so insisting, judgment is recovered against one of them, such judgment, though unsatisfied, is a bar to any action against the others. This is the effect of King v. Hoare (b), as approved by the House of Lords in Kendall v. Hamilton (c), in which it was held that an action and unsatisfied judgment against two persons who had borrowed money from the plaintiffs barred an action by the same plaintiffs against a third person, afterwards discovered to have been really interested as a partner with the two debtors in the business for the purposes of which the money had been borrowed. And it was in the same case laid down that there is no rule of equity that a contract joint at law is joint and several in equity. (u) Per Parke, B., Siboni v. Kirkman (1836), 1 M. & W. 418. (x) See Conv. Act, 1881, §§ 58, 59. (y) 2 Wms. Saund. 137; Co. Litt. 209 a; but see Conv. Act, 1881, ss. 58, 59. (2) Per Parke, B., Sorsbie v. Park (1843), 12 M. & W. 146; Foley v. Addenbroke (1843), 4 Q. B. 197; Hopkinson v. Lee (1845), 6 Q. B. 965; Haddon v. Ayers (1858), 1 E. & E. 118; and see Ex parte Harding (1879), 12 Ch. D. 557, C. A. For case of underwriters subscribing a marine policy as a syndicate, but as "each one for his own part" being held severally liable only, see Tyser v. Shipowners Syndicate (Reassured), [1896] 1 Q. B. 135, per Mathew, J. (a) Per Pollock, C.B., Keightley v. Watson (1849), 3 Exch. 716; and see Pugh v. Stringfield (1858), 3 C. B., N. S. 2; S. C. 4 id. 364; Beer v. Beer (1852), 12 C. B. 60; Wetherell v. Langston (1847), 1 Exch. 634. (b) King v. Hoare (1844), 13 M. & W. 494. (c) Kendall v. Hamilton (1879), 4 App. Cas. 504; and see In re M'Rue (1883), 25 Ch. D. 16, C. A.; Ex parte Chandler (1884), 13 Q. B. D. 50; and In re Hodgson (1885), 31 Ch. D. 177, C. A., where the rule in Equity that a partnership debt is joint and several is explained, and limited to cases of death; and see also Hammond v. Schofield, [1891] 1 Q. B. 453. Contracts held joint or several. when to be Judgment against one joint contractor only bars action against others. Kendall v. Hamilton. |