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recent case, the court supplied after the word "thousand," the immensely material word "pounds." a

E. contra, the courts have constantly rejected clauses, of which they were unable to ascertain the meaning. b In Doe dem Wyndham v. Carew, Lord Denman said, "The court is not bound to find out a meaning for a proviso framed as this is." c This is, where the words are insensible, and the purpose cannot be collected. Where the real intention can be ascertained from the context, every intendment is made to give it effect.

As regards contracts, the Digest says, "In conventionibus, contrahentium voluntas, potius quam verba, spectari placuit." d "There are certain general rules of interpretation," says Story, treating of the conflict of laws, "recognized by all nations; which form the basis of all reasonings on the subject of contracts. The object is to ascertain the real intention of the parties in their stipulations; and when these are silent or ambiguous, to ascertain what is the true sense of the words used, and what ought to be implied, in order to give them their true force and effect." e

If the full and entire intention of the parties does not appear from the words of the contract, and if the contract can be interpreted by any custom or usage of the place where it is made (custom of the country) that course is to he adopted: "Sequamur quod in regione, in qua actum est, frequentur." The same where it can be construed by the usage of trade. g Indeed "in contractibus tacite veniunt ea, quæ sunt moris et consuetudinis" h Thus if a tenant is, by custom, to have the outgoing or waygoing crop, he will be entitled to it, although not expressed in the lease. i And if a lease be entirely silent as to the time of the tenant's quitting the premises, the custom of the country will fix it.j

It is in order to discover the intention, and then, upon the pratical notion, that all writings tacitly refer to the existing circumstances under which they are made, that courts of law admit evidence of particular customs and usages in aid of the interpretation of written instruments, whether ancient or modern, whenever from the nature of the case a knowledge of such customs and usages is necessary to a right understanding of the instrument k. The law, it is said, is not so unreasonable as to deny to the reader of any instrument the same light which the writer enjoyed.l

a 8 B. & C. 568.

c 2 Q. B. Rep. 317.

e Story on Conflict of Laws, 226.

g Spicer v. Cooper, 1 Q. B. Rep. 428.

h Pothier Oblig., n. 95, Merlin Repertorie Convention, 67.

i Wigglesworth v. Dallison, Dougl. Rep. 201, 207.

j Webb. v. Plomer, 2 B. & A. 746. k 1 Phill. on Evidence, 558.

7 Wigram, Prop. 5, pp. 62, 74.

b 4 M. & S. 265.

d Dig. Lib. 50, tit. 16, 1. 219

f Dig. Lib. 50, tit. 17, 1. 34.

It is on the same ground, that, in construing a will, it must always be remembered, that the words of a testator, like those of every other person, tacitly refer to the circumstances, by which at the time of expressing himself, he his surrounded. Hence it is, that, for the purpose of determining the object of a testator's bounty, or the subject of disposition, or the quantity of interest intended to be given by the will, a court may inquire into every material fact relating to the person who claims to be interested under the will, and to the property which is claimed as the subject of disposition, and to the circumstances of the testator, and of his family and affairs. But still the object and governing principle is to discover the intention, with all aids.

A court is bound to apply itself with all diligence and attention to find the meaning of a testator, if it can possibly be found, however difficult and obscure. But if, after every effort to find that meaning, it becomes impossible to solve the difficulty and dispel the obscurity; if no judicial certainty can be obtained of his real meaning, then the court is not to supply a meaning by conjecture, or to adopt an arbitrary meaning for the purpose of giving some effect to unmeaning and ambiguous clauses a. In the words of Wigram, V. C., in his admirable work on Extrinsic Evidence, "the court is not to allow conjectural interpretation to usurp the place of judicial exposition. These remarks are cited to establish and to illustrate the general rules of construction, for they will be found equally applicable to the interpretation of


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"In applying rules for interpreting statutes to questions on the effect of an enactment, we can never, says Vatell, safely lose sight of its object. That must be the truest exposition of a law, which best harmonises with its design, its objects, and its general structure." b

To a qualified extent, and with certain restrictions as to the use of astuteness and the exercise of invention, (which had better not be applied to acts of Parliament) the observations before cited as to the construction of deeds and wills, hold good in the construction of statutes. There, also, the great object of the rules and maxims of interpretation is to discover the true intention of the law; and whenever that intention can be indubitably ascertained from allowed signs and by admitted means, courts are bound to give it effect, whatever may be their opinion of its wisdom or policy. "Whatever doubts I may have in my own breast," said Lord Mansfield, in the case of Pray v. Edie, c "with respect to the policy and expediency of this law, yet as long as it continues in force, I am bound to see it executed according to its meaning; and however I may think that this is not a commendable defence a Per Lord Abinger, C. B. 1 C., M. & R. b Vatell, Bk. 2, ch. 17, § 285.

c 1 T. R. 313.

in the underwriter, yet that is a matter for his consideration, and not for mine. Let us consider, what are the mischiefs intended to be remedied, and the provisions of the act for remedying them.

The real intention, too, when collected with certainty, will always, in statutes, prevail over the literal sense of terms. For "every statute ought to be expounded, not according to the letter but according to the meaning." a When the stat. 18 Edw. 1, quia emptores terrarum, &c., says; Every man shall hold of the ford paramount secundum quantitatem terra; this shall be construed according to the value, for so was the intent. b Hence, too, son fait demesne was interpreted son tort demesne; and perdra la chose hath ever been rendered amittet locum. c

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"Whenever the intention which the makers of a statute entertained can be discovered by fit signs, it ought to be followed in its construction, in a course consonant to reason and discretion." What are to be the guides in such course will be considered hereafter, but it is proposed at present, to state and to illustrate the subordinate branches of the general rule.

A thing, which is within the object, spirit, and meaning, of a statute, is as much within the statute, as if it were within the letter. d' a See post, Stat. Glouc. cap. 5. b 11 Rep. 73. c Pl. Com. 1057 b. d Zouch and Stowell, Plow. 366; 10 Rep. 101. NOTE 1.- In a previous chapter we appended by way of notes, certain general maxims of interpretation, compiled from distinguished and acknowledged authors, and from American judicial authority. It is seen, that the present chapter also treats somewhat of general rules of interpretation, as well as such as are qualified and particular; and as we did not in the previous notes exhaust the American view of construction, we propose to follow our author still further with our general rules, as well as such as are qualified and particular.


The best rule by which to arrive at the meaning and intention of a law, is to abide by the words which the lawmaker has used. U. S. v. Bright, Brightly, R. Q. same v. Warner, 5 McLean 178; Nicholson v. U. S. Devereaux C. C. R. 158. If from the view of the whole law, the intent is different from the whole literal im port of some of its terms, the intent is to prevail. Brown v. Wright, 1 Green, 240.

Words, in a statute are never to be construed as unmeaning, and surplusage if a construction can be legitimately found which will give force to and preserve all the words in the act. Leversee v. Reynolds 13, Iowa 310; Hartford Bridge Co. V. Union Ferry, 29 Conn. 210.

Doubtful words, if not scientific or technical, are to be interpreted according to their familiar use and acceptation. The Fashion v. Ward 6 McLean 152. If they are found in a general statute they may be construed with reference to general usage; and when a statute is applicable to a particular place only, such doubtful words may be interpreted by the usage at that place. Love v. Hinchley, 1 Abbott 436,

In the construction of a doubtful law the cotemperaneous construction of persons appointed to execute it, is entitled to great respect. Edward v. Darby, 12 Wheat. 210; U. S. v. The recorder, 1 Blatchford C. C. R. 218.


Chap. 5.

By the 4 H. 7, c. 24, it is provided, that the right of a person, who was within the age of twenty-one years at the time of levying a fine, shall not be thereby bound; yet, if the disseissee die, leaving a wite with child, and the disseissor levy a fine, and afterwards the child be born, the child, although not within the letter of the statute, (because, as the age of a child begins only from its birth, it cannot be said to have been, at the time the fine was levied, within the age of twenty-one years,) is within the meaning; and his right shall be saved.

The words of 2 Westm. 2, c. 23, are in casu quando vir amisit per defaltam tenementum quod fuit jus uxoris suæ, &c. Only a loss by default of the husband is within the letter of the statute; but the construction has been, a that a woman shall have a right of cui in vita, although the loss was by default of both herself and husband; because, as she is presumed to have acted under the coercion of her husband, this case is within the intention of the makers of the statute.

The stat. 35 Geo. 3, c. 101, gave justices jurisdiction to suspend an order of removal made by them, on account of sickness, &c., of the pauper, "in case any poor person shall be brought before them," &c., the object of which remedial law would have been entirely frustrated by a literal construction of the words of it. The court, therefore, gave effect to the plain intention, by an undisguised departure from the strict letter of the act, and construed the words to mean "in case the question concerning the removal of any poor person shall be brought, &c." b

A thing which is in the letter of a statute, is not within the statute, unless it be within the intention of the makers.c

The statute of Marlbridge, c. 4, prohibits generally the driving of a distress taken in one county, into another. It has however been adjudged, that if land holden of a manor in one county, lie in another county, the lord may distrain upon the land, and drive the distress into the county where the manor lies; for as it would be inconvenient and a great loss to the lord, if he could not drive the distress to his manor, d this case, although within the letter, is not within the meaning of the statute. And this decision, further considered, will every way be supported, as agreeable to right reason. For the tenant, by doing suit and service to the manor, knows where the pound is, to give his beasts sustenance; and further knows where to have his replevy: so that this case is out of the mischief intended to be remedied.

The stat. Westm. 2, c. 12, gave damages to an appellee upon his acquittal; but if his life was never in jeopardy, (by reason of erroneous process or otherwise), held, that though this be within

a Plowden 57.

c Bac. Abr. tit. Statute 1.

b Rexis Everdon 5 East., R. 101.

d 2 Inst. 107.

the letter of the law, yet it is out of the meaning, and the defendant shall recover no damages. a

It will be remembered, that in a former part of this work, under the head of "Clauses how controlled by clauses," "Prior Acts by subsequent acts," the case of Williams and Pritchard was cited, to this effect; that where it is manifestly the intention of the legislature that a subsequent act of parliament shall not control the provisions of a former act, the subsequent act shall not have such operation, even though the words of it, taken strictly and grammatically, would repeal the former act. In Bro. Tit. Parliament, 52, "where a statute is, that the merchant shall import bullion of two marks for every sack of wool exported; and then another statute was made that the merchant should not be charged except for the ancient custom, this does not repeal the first statute. (Vide Causam, 4 E. 4, 12.)" And the reason is, that though the words would have that operation per se, it clearly was not the intent of the legislature that the act should have that effect. The principal case itself, of Williams v. Pritchard, b decided that the land-tax act 27 Geo. 3, though the words were sufficiently large for the purpose, yet should not, (because it could not have been intended that it should) repeal the provisions of an act 7 Geo. 3, which exempted certain lands embanked from the Thames from land tax.

It thus manifestly appears, that in the interpretation of all instruments, whether wills, deeds, contracts and agreements, or statutes, a very great desire is felt, and constant endeavors used, to ascertain and to give effect to, the intention of their makers and framers. As applied to the construction of statutes, the doctrine is advisedly not enounced in the terms commonly employed, that "the intention must prevail." For over what, shall it be said the intention is to prevail? Over the declared sense of the legislature? The presumed meaning over the expressed sense! That is surely impossible. The rule will it is apprehended, be more correctly stated in the guarded terms :-That effect shall be given to the intention, whenever such intention can be indubitably ascertained by permitted legal means.

And what are the allowed means, the recognized signs, by which the interpreters of statutes are to explore the intentions of the legislature? Suppose it granted, that the primary object of construction is to ascertain the sense and intention of the law

a 2 Inst. 386, citing 9 H, 5, 2.

b 4 T. R. 2.

NOTE 2.-An alteration in the phraseology, or the omission or addition of words in the revision of statutes, does not necessarily alter the construction of the act, or imply an intention to do so. Such intent, must be evident, or the change in language be palpable, before the courts will hold the construction to be changed, Crowell v. Crane, 7 Barb. 191.

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