person;1 in such a case the misdescription would not avoid the bequest.2

It is evident that the maxims above cited, and others to a similar purport which occur both in the civil law and in our own reports, are, in fact, deducible from those very general principles with the consideration of which we commenced this chapter-benignè faciendæ sunt interpretationes, et verba intentioni non e contra debent inservire.3

*VERBA GENERALIA RESTRINGUNTUR AD HABILITATEM REI [*501] VEL PERSONAM.

(Bac. Max., reg. 10.)

General words shall be aptly restrained according to the subject-matter or person to which they relate.

4

"It is a rule," observes Lord Bacon, "that the king's grant shall not be taken or construed to a special intent. It is not so with the grants of a common person, for they shall be extended as well to a foreign intent as to a common intent, but yet with this exception, that they shall never be taken to an impertinent or repugnant intent; for all words, whether they be in deeds or statutes, or otherwise, if they be general, and not express and precise, shall be restrained unto the fitness of the matter and the person.'

Thus, if I grant common "in all my lands" in D., if I have in D. both open grounds and several, it shall not be stretched to common in my several grounds, much less in my garden or orchard. So, if I grant to J. S. an annuity of 107. a year, "pro concilio, impenso et impendendo" (for past and future counsel), if J. S. be a physician, this shall be understood of his advice in physic, and if he be a lawyer, of his counsel in legal matters."

In accordance, likewise, with the above maxim-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

1 I. 2, 20, 30.

2 Id. Wood, Inst. 3d ed. 165.

3 It may probably be unnecessary to remind the reader that the cases decided with reference to the rule of construction considered in the preceding pages are exceedingly numerous, and that such only have been noticed as seemed peculiarly adapted to the purposes of illustration. A similar remark is equally applicable to the other maxims commented on in this chapter.

4 Bac. Max., reg. 10; 6 Rep. 62.

5 Bac. Works, vol. 4, p. 46. See Com. Dig., "Condition," (K. 4.)

nature of the agreement.' If a deed relates to a particular subject only, general words in it shall be confined to that subject, otherwise they must be taken in their general sense. The words of [*502] the condition of a bond "cannot be taken at large, but must be tied up to the particular matters of the recital," unless, indeed, the condition itself is manifestly designed to be extended beyond the recital; and, further, it is a rule, that what is generally spoken shall be generally understood, generalia verba sunt generaliter intelligenda, unless it be qualified by some special subsequent words, as it may be; and that general words are sufficient where the certainty lies within the defendant's knowledge."

5

In construing the words of any instrument, then, it is proper to consider, 1st, what is their meaning in the largest sense which, according to the common use of language, belongs to them; and, if it should appear that that sense is larger than the sense in which they must be understood in the instrument in question, then, 2dly, what is the object for which they are used. They ought not to be extended beyond their ordinary sense in order to comprehend a case within their object, for that would be to give effect to an intention not expressed; nor can they be so restricted as to exclude a case both within their object and within their ordinary sense, without violating the fundamental rule, which requires that effect should be given to such intention of the parties as they have used fit words to express." Thus, in a settlement, the preamble usually *recites what it [*503] is which the grantor intends to do, and this, like the preamble to an act of Parliament, is the key to what comes afterwards. It is very common, moreover, to put in a sweeping clause, the use and object of which are to guard against any accidental omission; but in such cases it is meant to refer to estates or things of the same nature and description with those which have been already mentioned, and

11 T. R. 703.

2 Thorpe v. Thorpe, 1 Ld. Raym. 235; S. C., Id. 662.

3 Per Eyre, J., Gilb. Cas. 240. See Seller v. Jones, 16 M. & W. 112, 118;(*) Stoughton v. Day, Aleyn, 10; Arlington v. Merrick, 2 Saunds. 414; Napier v. Bruce, 8 Cl. & Fin. 470.

4 Sansom v. Bell, 2 Camp. 39; Com. Dig., "Parols," (A. 19.)

5 3 Inst. 76.

6 Shep. Touch. 88; Co. Litt. 42, a; Com. Dig., "Parols,” (A. 7.)

7 Com. Dig. "Pleader," C. 26; cited, per Tindal, C. J., 1 Scott, N. R. 324.

8 3 Inst., 76.

9 Per Maule, J., Borradaile v. Hunter, 5 Scott, N. R. 431, 432. See in illustration

of these remarks, Moseley v. Motteux, 10 M. & W. 533.(*)

such general words are not allowed to extend further than was clearly intended by the parties.1

So, in construing a will, a court of justice is not by conjecture to take out of the effect of general words property which those words are always considered as comprehending; the best rule of construction being that which takes the words to comprehend a subject which falls within their usual sense, unless there is something like declaration plain to the contrary. Thus, it is a certain rule, that reversions are held to be included in the general words of a devise, unless a manifest intention to the contrary appears on the face of the will.3

2

Again, it is a well-known rule, that a devise of an indefinite estate by will prior to the 1st January, 1838, without words of limitation, is primâ facie a devise for life only; but this rule will give way to a different intention, if such can be collected from the instrument, and the estate may be accordingly enlarged. So, words which *would primâ facie give an estate-tail, may be cut down to a life [*504] estate, if it plainly appear that they were used as words of purchase only, or if the other provisions of the will show a general intent inconsistent with the particular gift."

The doctrine, however, that the general intent must overrule the particular intent, observes Lord Denman, C. J., has, when applied to the construction of wills, been much and justly objected to of late, as being, as a general proposition, incorrect and vague, and likely to lead in its application to erroneous results. In its origin it was merely descriptive of the operation of the rule in Shelley's case;" and it has since been laid down in other cases where technical words of limitation have been used, and other words, showing the intention of the testator that the objects of his bounty, should take in a different way from that which the law allows, have been rejected; but in the latter cases the more correct mode of stating the rule of con

1 Per Lord Mansfield, C. J., Moore v. Magrath, 1 Cowp. 12; Shep. Touch., by Atherley, 79, n.

2 Per Lord Eldon, C., Church v. Mundy, 15 Ves. 396; adopted per Tindal, C. J., Doe d. Howell v. Thomas, 1 Scott, N. R. 371.

31 Scott, N. R. 371.

4 Doe d. Sams v. Garlick, 14 M. & W. 698;(*) Doe d. Atkinson v. Fawcett, 3 C. B. 274; E. C. L. R. 54; Lewis v. Puxley, 16 L. J., Exch. 216. See stat. 1 Vict. c. 26, s. 28, ante, p. 433. In Hogan v. Jackson, 1 Cowp. 299, S. C., affirmed 3 Bro. P. C., 2d ed. 388, the effect of general words in a will was much considered.

5 Fetherston v. Fetherston, 3 Cl. & Fin. 75, 76; ante, p. 434.

6 Ante, p. 428.

struction is, that technical words, or words of known legal import, must have their legal effect, even though the testator uses inconsistent words, unless those inconsistent words are of such a nature as to make it perfectly clear that the testator did not mean to use the technical words in their proper sense. The doctrine of general and particular intent, thus explained, should be applied to all wills,' in conjunction with the rules already considered, viz., that every part of that which the testator meant by the words he has used should be *carried into effect as far as the law will permit, but no

[*505] further; and that no part should be rejected, except what the law makes it necessary to reject.2

EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS.
(Co. Litt. 210, a.)

The express mention of one thing implies the exclusion of another.

The above rule, or, as it is otherwise worded, expressum facit cessare tacitum,3 enunciates one of the first principles applicable to the construction of deeds; for instance, an implied covenant is in all cases controlled within the limits of an express covenant." Where, therefore, a lease contains an express covenant on the part of the tenant to repair, there can be no implied contract to repair arising from the relation of landlord and tenant. So, although the word "demise" in a lease implies a covenant for quiet enjoyment, yet both branches of such implied covenant are restrained by an express covenant for quiet enjoyment." And as a *general rule, it is true that where parties have entered into written engagements

[*506]

6

1 Judgment, Doe d. Gallini v. Gallini, 5 B. & Ad. 621, 640; E. C. L. R. 27; Jesson v. Wright, 2 Bligh, 57; cited, Argument, Doe d. Littlewood v. Green, 4 M. & W. 238.(*)

2 Judgment, 5 B. & Ad. 641; E. C. L. R. 27.

3 Co. Litt. 210, a; 183, b.

See per Lord Denman, C. J., 5 Bing. N. C. 185; E. C. L. R. 35.

5 Nokes' case, 4 Rep. 80; S. C., Cro. Eliz. 674; Merrill v. Frame, 4 Taunt. 329; Gainsford v. Griffith, 1 Saund. R. 58; Vaugh. R. 126; Deering v. Farrington, 1 Ld. Raym. 14, 19.

6 Standen v. Chrismas, 16 L. J., Q. B. 264.

7 Line v. Stephenson, 5 Bing. N. C. 183; E. C. L. R. 35; Merrill v. Frame, Taunt. 329. See Earl of Cardigan v. Armitage, 2 Bing. N. C. 197; E. C. L. R. 29; Easterby v. Sampson, 1 Cr. & J. 105. By stat. 8 & 9 Vict. c. 106, s. 4, it is enacted, that the word "give" or "grant" in a deed executed after the 1st of October, 1845, shall not imply any covenant in law in respect of any hereditament, except by force

with express stipulations, it is manifestly not desirable to extend them by any implications; the presumption is, that, having expressed some, they have expressed all the conditions by which they intend to be bound under that instrument.1

It will, however, be proper to observe, before proceeding to give instances in illustration of the maxim expressio unius est exclusio alterius, that great caution is always requisite in its application; thus, where general words are used in a written instrument, it is necessary in the first instance, to determine whether those general words are intended to include other matters besides such as are specifically mentioned, or to be referable exclusively to them, in which latter case only can the above maxim be properly applied.3 Where, moreover, an expression which is primâ facie a word of qualification, is introduced, the true sense and meaning of the word can only be ascertained by an examination of the entire instrument, reference being had to those ordinary rules of construction to which we have heretofore adverted."

*In illustration of the very general rule of construction

which we have above proposed for consideration, the following [*507]

66

cases may be mentioned:-In an action of covenant on a charterparty, whereby the defendant covenanted to pay so much freight for goods delivered at A.," it was held, that freight could not be recovered pro ratâ itineris, the ship having been wrecked at B. before her arrival at A., although the defendant accepted his goods at B.;

of some act of Parliament. A covenant for quiet enjoyment, however, is also implied by the word "demise" in a lease for years; and this implication is not taken away by either of the recent stats. (7 & 8 Vict. c. 76, and 8 & 9 Vict. c. 106.) In every contract for the sale of leaseholds there is, in the absence of an express stipulation to the contrary, an implied undertaking on the vendor's part to make out the lessor's title to demise, Hall v. Betty, 5 Scott, N. R. 508; recognising Souter v. Drake, 5 B. & Ad. 992; E. C. L. R. 27. See also Sutton v. Temple, 12 M. & W. 52;(*) Hart v. Windsor, Id. 68; Messent v. Reynolds, 3 C. B. 194; E. C. L. R. 54. As to the difference between covenants in law and express covenants, see Williams v. Burrell, 1 C. B. 427; E. C. L. R. 50.

1 Judgment, Aspdin v. Austin, 5 Q. B. 683, 684; E. C. L. R. 48; Dunn v. Sayles, Id. 685; M'Guire v. Scully, Beatt. 370.

2 To show the caution necessary in applying the above rule may be cited, Price v. The Great Western Railway Company, 16 L. J., Exch. 87; Dimes v. The Grand Junction Canal Company, 16 L. J., Q. B. 107, 112; Attwood v. Small, 6 Cl. & Fin. 482. 3 See Petch v. Tutin, 15 M. & W. 110.(*)

4 In Doe d. Lloyd v. Ingleby, 15 M. & W. 465, 472, (*) the maxim was applied by Parke, B. diss., to a proviso for re-entry in a lease, and this case will serve to illustrate the above remark.