particular construction; whatever may be the amount, the general rule of construction must prevail. (1)

A blank in a will, for the devisee's name, is an instance of apparent ambiguity, and parol evidence cannot be admitted to shew what person's name the testator intended to insert (2). But on a bequest to a person, whose surname was mentioned with a blank left for the Christian name, the party who claimed the legacy, was allowed not only to prove acts of kindness and constant affection on the part of the deceased, but to shew further that the testator had said, "he would provide for him, and that he had left him something by his will (3);" and in another case, where only one initial appeared in the will, (the bequest being "to Mrs. G.," without any other description,) the Chancellor referred it to the master to receive evidence, to shew who was the person intended to be described by that initial (4). The distinction between these cases is, that in the former there is no description whatever of a devisee, and whether the testator had selected any person as the object of his devise is entirely uncertain on the face of the will; but in the two last cases, the testator has given some description, and though it would appear too slight and general for the information of strangers, yet to persons, well acquainted with the testator, it might be sufficiently full and distinct ; in the first of these two cases, the testator might not have known the Christian name; in the other, the description in the will might have been the only one, by which the testator used to designate the claimant.

When a blank is left in a written agreement, which need not have been reduced into writing, and would have been equally binding, whether written or underwritten,

(1) Doe dem. Handson v. Fyldes, Cowp. 833. Standen v. Standen, 2 Ves. jun. 593. Richardson v. Edmonds, 7 T. R. 635.

(2) Baylis v. The Attorney-General, 2 Atk. 239. Castledon v. Turner, 3 Atk. 257. Hunt v. Hort, 3 Bro. Ch. C. 311. (3) Price v. Page, 4 Ves. jun. 680. (4) Abbot v. Massie, 3 Ves. jun. 148.

(as,

(as, if the agreement were to deliver goods to the amount of less than ten pounds, and a blank were left for the quantity of goods to be delivered,) in such a case, it is presumed, in an action for the non-performance of the contract, parol evidence might be admitted to shew the quantity, for which the parties agreed; for a memorandum in writing was not required in this case by the statute of frauds, and the proposed evidence would not contradict any part of the written agreement, but merely supply an omission, where nothing need have been expressed. And where a written instrument, which was made professedly to record a fact, is produced as evidence of that fact which it purports to record, and a blank appears in a material part, the omission may be supplied by other proof. Thus, if a bishop's register were to be produced in evidence, for the purpose of shewing a presentation by a patron, under whom the plaintiff claims, and on the production of the register a blank should appear in the place where the patron's name is usually inserted, the presentation might be proved in some other way (1); as, by a witness, who was present, and heard the presentation. So, in the case of a surrender of a copyhold by a steward, if there is any mistake in the entry, that is only matter of fact; and the courts of law will in that case admit an averment, that there was a mistake either as to the lands or uses. (2)

In the construction of written instruments, words are to be understood according to their common and general acceptation at the time when the instrument was made (3), and with reference to the nature of the subject. If the language in antient charters is become obscure from its antiquity, or the construction is doubtful, the constant and immemorial usage under the instrument may be resorted

(1) Bishop of Meath v. Lord Bel

field, 1 Wils. 215.

(2) Towers v. Moor, 2 Vern. 98.

(3) Vaugh. Rep. 169. Com. Dig, tit. Parols, (A).

Usage to ex

plain ancient

charters, &c.

to for the purpose of explanation (1), though it can never be admitted to control or contradict the express provisions of the instrument. Such continued usage is a strong practical exposition of the meaning of the parties. Even in the case of an act of parliament, universal usage has been referred to as a proper expositor, where the language is doubtful (2). Lord Coke, in commenting on the statute of Glocester, says, that when any claimed before the justices in eyre any franchises by ancient charter, if the words were general, and a continual possession was pleaded of the franchises claimed, or if the claim was by old and obscure words, and the party in pleading expounded them to the court and averred continual possession according to that exposition, the entry was ever inquiratur super possessionem et usum; and this, adds Lord Coke, "I have observed in divers records of those eyres, agreeably to that old rule, optimus interpres rerum usus (3)." And the uniform course of modern authorities fully establishes the rule, that however general the words of antient grants may be, they are to be construed by evidence of the manner, in which the thing has been always possessed and used (4). Thus, on an information to set aside an election to a perpetual curacy, it appeared that the impropriate rectory, out of which the curacy arose, had been granted in trust for the use of the parishioners and inhabitants of a parish for ever; on the part of the relators it was insisted, that the right of nomination to the vicarage ought to be confined to inhabitants paying scot and lot, or to persons paying to church and poor; and on the part of the defendants, that it extended to all house-keepers in general: Lord Hardwicke, in delivering his judgment, said, "that some sort of limitation was allowed by both sides

(1) R. Varlo, Cowp. 248. Gape v. R. v. BellHandley, 3 T. R. 288, n. ringer, 4 T. R. 810. R. v. Osbourne, 4 East, 333. Bailiff, &c. of Tewkesbury v. Bricknell, 2 Taunt. 120. R. v. Mayor of St. Alban's, 12 East, 559.. R. v. Mayor, &c. of Stratford-upon

Avon, 14 East, 348. R. v. Mayor, &c. of Chester, Maule & Selw. 101.

་

(2) Sheppard v. Gosnold, Vaugh. 169, and see R. v. Scott, 3 T. R. 604. (3) 2 Inst. 282.

(4) Weld v. Hornby, 7 East, 199. R. v. Osbourne, 4 East, 327.

to

to have been put by usage on the liberality of the grant, and that in the construction of antient grants and deeds there is no better way of construing them, than by usage; and contemporanea expositio is the best way to go by;" and since in this case there was evidence of house-keepers having constantly voted, Lord Hardwicke held, that this usage ought to prevail. (1)

Nor does it make any difference with respect to the admissibility of evidence of immemorial usage, for the purpose of explaining and construing ancient instruments, whether the instrument be a charter granted by the crown, or merely a private deed. Thus, in the case of Withnell v. Gartham (2), where the question was on the construction of an ancient deed, granting the power of appointing a schoolmaster to the minister and churchwardens of a parish, whether all the churchwardens must concur, or whether the act of the majority was sufficient, and the jury found the usage to be in favour of the appointment by a majority, Lord Kenyon, in speaking of the usage and adverting to an argument which had been insisted on, (namely, that the Court ought to reject the evidence of usage, because the instances proved were not as ancient as the deed, and also because usage cannot be let in to explain a private deed,) said, that if the first reason were sufficient to reject the usage, it would be difficult to know how far such an objection might extend. In many cases a party undertakes to prove a custom from the time of legal memory, but that proof is generally established by evidence of facts done at a much later period. And as to the second objection, Lord Kenyon said, there was no difference in that respect between a private deed and a king's charter; in both cases, evidence of usage might be given to expound them. So, in a late case (3), where, in an action for entering the plaintiff's close, the defendant pleaded, that the close was copyhold, and justified

(1) The Attorney-General v. Parker and others, 3 Atk. 576. The AttorneyGeneral v. Forster, 10 Ves. jun. 335.

Ee 3

(2) 6 T.R. 388.

(3) Stammers v. Dixon, 7 East, 200.

under

under a grant from the lord and by the command of the copyholder, in support of this plea the defendant proved that the person (under whom he justified) and all those, whose estate he had, for a long course of years had constantly taken the forecrop of grass and pasturage from the close, and then by court rolls of the manor proved admissions to a copyhold tenement" of three acres of meadow,” (which was admitted to be the close in question,) but every other benefit of the land, except the forecrop, had been enjoyed by those from whom the plaintiff claimed; Mr. Justice Heath, who tried the cause, was of opinion, "that, although the terms of the surrender and admission were sufficiently comprehensive to pass the soil and freehold, yet, as in ancient grants the legal import might be restrained by long and concomitant usage, which might be taken as evidence of the original intent of the parties in making the grant, so here the grant might be restrained by the received usage, and only pass the forecrop, which would not carry the soil." And the Court of King's Bench agreed in this construction of the written evidence. The terms of the admissions, they thought, were not incompatible with the plaintiff's right, and might receive a construction conformable to the usage.

Thus it appears, that the words of an instrument, in themselves conveying a general right to an estate, may in certain cases be limited and restrained by the manner, in which the estate has for a length of time been actually enjoyed. But in the construction of a legal instrument, where the question is, whether a party is bound by his covenant to do a certain act, (as, for example, to grant a renewal of a lease,) courts of law will not consider the acts. of the parties or their interpretation of the instrument. In one case, indeed, where it was doubtful, whether a covenant for renewal extended to a perpetual renewal, and the parties had renewed four times successively, the Court of King's Bench held, that the legal effect was a perpetual renewal, on the ground that the parties them