against the validity of an agreement.

"Whensoever the

words of a deed, or of the parties without deed, may have a double intendment, and the one standeth with law and right, and the other is wrongful and against law, the intendment that standeth with law shall be taken.""

This rule of favorable construction must, however, bend to the intention of the parties; the purpose of it being, like that of all other rules of construction, to give effect to such intention. If therefore the parties obviously meant to make a frivolous, absurd, or unlawful agreement, they must abide by the legal consequences.

3. The subject matter of an agreement is to be considered in construing the terms of it; and they are to be understood in the sense most agreeable to the nature of the agreement: Verba generalia restringantur ad habilitatem rei, vel aptitudinem personæ.1

3

Thus, a stipulation in a policy of insurance, that a ship shall "sail or depart with convoy," is held to mean convoy for the voyage." The subject matter of such agreement is a voyage, and merely departing with convoy, and then proceeding alone, would be no protection to the ship on the voyage. And the captain must take sailing orders, or directions as to keeping with the convoy, obeying signals, &c. Otherwise the security intended by convoy would not be procured. So a license to load a cargo in an enemy's country, and import it into Great Britain, authorizes a purchase of the cargo. In Penn v. Glover, there was a condition in a lease, that the lessee should not molest, vex, or put out any copyholder, paying his duties and services, under the penalty of forfeiture. The lessee entered into a

1 Co. Lit. 42.

3 Jeffereys v. Legendra, 1 Show. 321;

2 1 Pow. Con. 377; 1 D. & E. 703. Lilly v. Ewer, 1 Doug. 72.

4 Webb v. Thompson, 1 Bos. & Pul. 5; Anderson v. Pitcher, 2 Bos. & Pul.

164.

5 Fenton v. Pearson, 15 East, 419.

6 Mo. 402; S. C. Cro. Eliz. 421.

cowhouse and beat a copyholder. A forfeiture was claimed under the word "molest." But it was held, that the molestation must be such as should be an expulsion, or molestation concerning the copyhold tenement; that a tort to the person of a copyholder was not intended.

A grant of common out of all one's manor authorizes the grantee to depasture his cattle only in commonable places, and not in the grantor's garden. So a grant of all trees growing on a farm does not extend to fruit trees, if there be any other trees on the farm.' A general covenant for quiet enjoyment of land extends only to evictions and disturbances by title. But a covenant to indemnify against a particular person, by name, extends to entries and disturbances of that person by tort as well as by right.' So if the condition of a bond be that the obligor shall not hurt or molest the obligee "on any account," it shall be construed to be a wrongful molestation, and not to hinder the obligor from pursuing the obligee for crimes committed by him, or for any other just cause.3

Under this third rule of interpretation may also be given the following cases, where general words are restrained by the subject matter of the contract.

The use and object of a sweeping clause are, generally, to guard against any accidental omission; but it is meant to refer to estates or things of the same nature and description with those that have been before mentioned. A release of all demands, when a particular demand is acknowledged to have been received, is confined to the demand specified." In 2 Rol. Abr. 409, it is said, "if a man should receive £10, and give a receipt for it, and doth thereby acquit and re

1 Pow. Con. 377; Shep. Touch. 86, 87.

* Dalis. 58, pl. 8; 110, pl. 2; Chanudflower v. Prestley, Yelv. 30, and cases in note. Greenby v. Wilcocks, 2 Johns. 1.

3 Dobson v. Crew, Cro. Eliz. 705.

• Per Ld. Mansfield, Cowp. 12.

5 1 Pow. Con. 391 et seq. 1 Domat, 38, § 21.

lease the person of all actions, debts, duties and demands, nothing is released but the £10; because the last words must be limited by those foregoing." Lord Holt is reported1 to have denied this case in Rolle; but lord Ellenborough' said, he was sorry to find that it had been denied to be law, because it seemed to him to be as sound a case as could be stated. And it is now, doubtless, the settled law of England and of this country."

But if the general words of a release stand alone, without any recital, or reference to the subject matter on which it is to operate, the rule does not apply. In such case, the release is taken most strongly against the releasor. Extrinsic evidence cannot be admitted to explain the releasor's intentions, and to what demand the release is to be applied;" otherwise, of a receipt.

Where the condition of a bond is larger than the recital, the recital shall restrain it-on the principle that the condition is to be confined to the subject matter. The recital shows what the subject matter is. "The condition cannot be taken at large, but must be tied up to the particular matters of the recital." Thus, where the condition of a bond recited that the obligee had made the obligor bailiff of the hundred of Brixto, and the engagement was that the obligor should make true return of all warrants directed to him; on a suit upon this bond, alleging that the obligee made a warrant to the obligor to execute a certain process,

11 Show. 155.

2 4 M. & S. 427.

3 Bac. Abr. Release, K; Cole v. Knight, 3 Mod. 277; Abree's case, Hetl. 15; Payler v. Homersham, 4 M. & S. 423; Lampon v. Corke, 5 Barn. & Ald. 606; Lyman v. Clarke, 9 Mass. 235; Munro v. Allaire, 2 Caines, 329; 5 Johns. 335, per Kent, C. J.

4 Thorpe v. Thorpe, 1 Ld. Raym. 235; Bac. Abr. Release, K.

5 Butcher v. Butcher, 1 New. Rep. 113; Pierson v. Hooker, 3 Johns. 68. 63 Stark. Ev. 1044. 1272; 8 Johns. 389; 9 Johns. 310; 1 Johns. Cas. 145; 11 Mass. 32; 4 Greenl. 427.

7 Per Eyre, J. Gilb. Cas. 240.

and that he had not returned it, it was held, on demurrer, that no cause of action was shown; because the generality of the condition must be restrained by the recital, and the defendant was liable only for not returning warrants to be executed within the hundred of Brixto: Non constat, on these pleadings, that such was the warrant which the defendant, as was alleged, had not returned.' After verdict, however, judgment would not be arrested for such cause. It would be intended that the warrant was directed to the defendant as bailiff of the hundred for which he was appointed. In Pearsall v. Summersett, the condition of the bond recited that the plaintiff had accepted, indorsed, &c. divers bills of exchange for the accommodation of W., several of which were outstanding, and in order to indemnify the plaintiff, in respect thereof, from all losses, charges, &c. the defendant stipulated to pay all that the plaintiff had advanced, or thereafter should advance, on account of W. It was held, that the condition should be confined to payments in respect to bills accepted before the date of the bond.

3

In a suit on a bond reciting that J. had been appointed deputy postmaster for the term of six months, and with a condition that during all the time he should continue in that office, he would faithfully perform the duties, &c.—it was held, that the surety of J. was not liable for his default after six months had elapsed. So where the condition of a bond is for the good conduct of a person in an office which is annual, &c. though the condition purport to be commensurate with his continuance in office, and he be reëlected or reappointed, yet the obligor is liable only during the continuance of the office under the first election or appointment; otherwise, if the office is not by law an annual one,

1 Stoughton v. Day, Style, 18. S. C. Aleyn, 10. 2 Weston v. Mason, 3 Bur. 1727.

34 Taunt. 593.

Arlington v. Merricke, 2 Saund. 414, and note (5).

5 Liverpool Water works v. Atkinson, 6 East, 507; St. Saviour's v. Bos

though the officer may be annually elected or appointed.' Where a bond was given for the fidelity of an accountant in a bank, and that he should continue in the service of the bank for two years, the bond was held to secure the bank while the accountant was in their service; the mention of two years only preventing his sooner leaving the service.*

So if there is a change of parties, the obligor and his sureties are not held on the contract. As where a bond was given for the fidelity of a clerk of the obligee, and the obligee entered into partnership with a third person, and the clerk was afterwards guilty of misconduct in the partnership business. So in case of a material variation in the mode or extent of transacting the business of the obligee. So where a bond was given to several persons as governors of a voluntary society, with a condition for the faithful collection and accounting, &c. of H. to the obligors, and their successors, as governors, and the society afterwards was incorporated; a default of H., after the incorporation, was held not to be covered by the bond. In Barclay v. Lucas, on a bond reciting that the obligees "had agreed to take Jones into their service, and employ him, as a clerk in their shop and counting house, and that the defendants had

one

tock, 2 New Rep. 175; Hassell v. Long, 2 M. & S. 363; Bigelow v. Bridge, 8 Mass. 275; U. States v. Kirkpatrick, 9 Wheat. 720; Commonwealth v. Fairfax, 4 Hen. & Munf. 208; Commonwealth v. Baynton, 4 Dallas, 282; S. Carolina Society v. Johnson, 1 McCord, 41; S. Carolina Ins. Co. v. Smith, 2 Hill, 589.

1 Curling v. Chalklen, 3 M. &. S. 502; 1 New Rep. 40, per Mansfield, C. J. Dedham Bank v. Chickering, 3 Pick. 335.

? Worcester Bank v. Reed, 9 Mass. 267.

• Wright o. Russell, 3 Wils. 530; S. P. Barker v. Parker, 1 D. & E. 287 ; Strange v. Lee, 3 East, 484; Bellairs v. Ebsworth, 3 Campb. 53.

4 Bartlett and Bowdage v. Attorney General, Parker's Rep. 277, 278; Miller v. Stewart, 9 Wheat. 680; Boston Hat Manufactory v. Messenger, 2 Pick. See also 4 Pick. 314; Fell on Guaranties, chap. v.

5 Dance v. Girdler, 1 New Rep. 34. 61 D. & E. 291, note.