THIS case, as well as that of Manby v. Scott, was originally intended for insertion in the first volume. The principle which it carries out, and is usually cited to illustrate, is one of the highest importance, and is indeed the main one upon which the construction of every written instrument hinges. It is expressed in the two maxims,—Quando res non valet ut agas valeat quantum valere potest, and Benigne faciendæ sunt interpretationes chartarum propter simplicitatem laicorum, ut res magis valeat quam pereat. Thus a deed of bargain and sale, void for want of inrolment, will operate as a grant of the reversion. (See Preston's note to Shep. Touch. 83; Smith v. Frederick, 1 Russ. 210; Haggerston v. Hanbury, 5 B. & C. 101); and see Goodtitle d. Edwards v. Bailey, Cowp. 600; Gibson v. Minet, 1 H. Bl. 569, 3 T. R. 481; Doe v. Simpson, 2 Wils. 22. See too Chester v. Willan, 2 Wms. Sand. 97 a, and the cases collected in notes thereto; and see Doe v. Salkeld, Willes, 673; the judgment of the C. J. in Purkhurst v. Dormer, ibid. 332; and Com. Di. title Parols. Many instances of the application of this doctrine will be found in Shepherd's Touchstone, 81, et seq. For instance," If divers join in a deed-and some are able to make such a deed, aud some are not able-this shall be said to be his deed alone that is able;" a familiar instance of which will be found in the note to Moss v. Gallimore, ante, vol. 1, p. 317, in the case of a mortgagor and mortgagee making a lease jointly, which enures as the lease of one and the confirmation of the other. So "If a lease be made to one that is incapable and others that are capable, in this case it shall enure only to him that is capable," &c. And it is further laid down in the same valuable work, Shep. Touch. 83, that "when a deed may enure to divers purposes, he to whom the deed is made shall have election which way to take it, and he shall take it in that way which shall be most for his advantage; as if one have a rent out of land of which I and my wife are jointly seised, and he doth by his deed release, give, and grant this rent to me, I may use this as a release to extinguish the rent, or as a grant of the rent, as it may make most for my advantage. But where

any inconvenience would arise from the election, there the grantee shall not have an election." One of the latest instances of the application of the doctrine cited as in Roe v. Tranmarr, is to be found in Doe v. Davies, 2 Mee and Welsb. 511, which was decided on the authority of the principal case of Roe v. Tranmarr, and bears a good deal of resemblance to it.

There are several rules of construction adopted by the courts, subsidiary to the above doctrine, and for the purpose of carrying it out; as, for instance, that too much stress is not to be laid on the strict and precise meaning of words where the intention is manifest; for qui hæret in literá hæret in cortice, and verba intentioni debent inservire, non e contra. Hence the power which the court exercises in marshalling the words of a written instrument so as to carry the intention into effect. See Atto v. Hemmings, 2 Bulst. 282, as in those cases in which words have been distributed among different subjects referendo singula singulis; (see Cook v. Gerrard, 1 Wms. Sand. 170, et notas.); Nay, there are cases in which the very same words have been construed to bear different meanings in respect of the legal properties of different subject-matters, as in Forth v. Chapman, 1 P. Wms. 667; see Burton v. Barclay and Perkins, 7 Bingh. 749. So where one writing contains two distinct instruments, e. g. a lease and release, the court will read that first which must be looked on as the first in point of time, in order to accomplish the intention of the parties. 1 Freem. 251, 2 Mod. 252, et vide Bredon's case, 1 Co. 76. Hence, too, the doctrine of Cy-pres (as it is called), the principle of which in wills is, that where there is a general and also a particular intention, and the particular intention cannot take effect, the words shall be so construed as to give effect to the general intention. See Preston's Shep. Touch. 87, and the expressions of Buller, J., 2 T. R. 254. A further consequence of this rule is expressed in the maxim, Mala grammatica non vitiat chartam, and there have been cases in which the word and, in furtherance of this doctrine, has been read or; see Chapman v Dalton, Plowd. 289; 1 Inst. 225 a. Again, the construction must be made on the en

tire instrument, after looking, as the phrase is, at the four corners of it, Ex antecedentibus et consequentibus fit optima interpretatio, and verba posteriora propter certitudinem addita ad priora quæ certitudine indigent sunt referenda; see 4 Leon. 248. Again, every word in an instrument ought, if possible, to operate, and subsequent words shall not defeat prior ones, if they may stand together. Hard. 94; 6 Mod. 107.

Still, if there be words repugnant and plainly at variance with the general intention of the instrument, they shall be rejected: Crowley v. Swindles, Vaugh.173; Sims v. Doughty, 5 Ves. 243; and if two clauses be plainly at variance, the former stands: Hard. 94; 6 Mod. 107; Shep. Touch. 88; 2 Taunt. 113; though it is otherwise in wills. Doe v. Biggs, 2 Taunt. 109; Sherritt v. Buckley, 2 My. & K. 149, so in an Act of Parliament, Att. Gen. v. Chelsea W. W., 1 Fitzg. 195. If, however, the contradictions be of such a description as to render the intention of the instrument wholly uncertain and insensible, it will be void. 2 And. 103; 1 Inst. 20 b. Thomas v. Thomas, 6 T. R. 676.

A party cannot, without the very strongest evidence, be supposed to intend to contravene the rules of law, or to create a forfeiture, and therefore if either of those consequences would follow from giving a particular construction to the instrument, such a construction shall, if possible, be rejected. Co. Litt. 42 and 183; 2 Bl. Com. 379; Shep. Touch. 88.1

Ancient instruments may be construed by ancient usage, for so the parties to them must be supposed to have intended. Contemporanea expositio fortissima est in lege, per Lord Hardwicke, 3 Atk. 577; see Bro. Abr. Grants, 89; 2 Bulst. 298.

An evident omission or mistake may be supplied even at law. Trethewy v. Ellesdon, 2 Vent. 141; Lloyd v. Say and Sele, 4 Bro. P. C. 73; see Clinton v. Cholmondeley, 2 B. & A. 625; Spyve v. Topham, 5 East, 115. As to the power of equity to rectify instruments, see Uvedale v. Halfpenny, 2 P. Wms. 151; Tragus v. Puget, 2 Ves. 194.

The words used in a deed are to be taken most strongly against the party using them, verba accipiuntur fortius contra

proferentem; for the law supposes that natural self-love will prevent a man from unnecessarily using language to his own disadvantage. Co. Litt. 185; Cro. Car. 400; 2 Bl. Com. 379. But this is only to be carried as far as fair inference will allow; see 3 Ves. 48; and being a harsh rule, it must not be resorted to till other modes of exposition have been tried and failed. 2 Bl. Com. ubi supra, Bac. El. Reg. 3. And there is a difference in this respect between a deed poll and an indenture, the former being executed by the grantor alone, the words are his only; the latter being executed by both parties, the words are used by both. Plowd. 134.

It has been already said, "that where a deed may operate in two ways, he to whom it is made may elect in which way he will have it operate." But the instrument ought, if pleaded, to be stated according to its legal effect, and the court not left to make the election. In Miller v. Green, 2 Tyrwh. 8, 1 C. & J. 142, 8 Bing. 92, an action of replevin having been brought by the plaintiff against the defendant, the latter made cognizance, that, by deed of 25 Sept. 1806, Taylor granted Hodgson a rent-charge on the premises, with power to enter and distrain for the arrears and the distress to detain, manage, sell, and dispose of in the same manner in all respects as distresses for rent reserved on leases for years; and that he, the defendant, as bailiff to Taylor, entered and distrained for arrears thereof. The plaintiff pleaded in bar, that by a previous deed of 7th May, 1806, Taylor granted Walton a rent-charge out of the same premises, and for better securing the payment,granted, sold and demised them to Fletcher for ninety-nine years, with power of distress, and that arrears had accrued and were due. It was held that as the plea in bar did not aver an entry by Fletcher under the deed of 7th May, 1806, no estate at common law appeared to have vested in him by that deed; and that, though an estate might have passed to him by way of bargain and sale, under the Statute of Uses, still, as he had not so pleaded it, the court could not make the election for him. It is true that in this case the party pleading the deed was (as far as appeared on the record) a stranger,

and so the court observed. In Pascoe v. Pascoe, 3 Bingh. N. C. 898, the plaintiff having brought replevin, the defendant avowed that the plaintiff held the premises as his tenant under a demise, at a rent of 321. per annum, and avowed for 804 arrears plea in bar, that the demise passed the whole of the defendant's interest, without leaving him any reversion. Upon demurrer, at a subsequent stage of the pleadings, it was held that the plea in bar was not bad; for that, on the authority of Preece v. Corrie, 5 Bingh. 24, it might admit a demise, yet set up an assignment;

and though it was contended, on the part of the defendant, that the rent would, at all events, be a rent-seck, to which a power of distress would be incident by virtue of 4 G. 2, cap. 28, yet the court said, "Although it is true that this rent may be a rent-seck, and that the remedy is the same under the statute for a rent-seck as a rent-service, yet the avowry is for a rentservice at common law, and not for a rentseck." See further, as to the necessity of pleading a deed according to its legal effect, the excellent note to Chester v. Willan, 2 Wms. Saund. 97 b.

Rule refused.

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THE principle established by Merryweather v. Nixan, viz., that one tort-feasor cannot recover contribution against another, is but one modification of that general rule laid down by Wilmot, C. J., in Collins v. Blantern, ante, vol. 1., viz. : Ex turpi causâ non oritur actio. Whoever," his lordship there lays down, "is a party to an unlawful contract, if he have once paid the money stipulated to be paid in pursuance thereof, shall not have the help of a court of justice to fetch it back again.” And the statement of an account in which the money due by the terms of the illegal contract is allowed, seems for this purpose equivalent to payment of it. Owens v. Denton, 1 C. Mee. & Rosc., 712; 5 Tyrwh. 359. In that case, the defendant had sold malt to the plaintiff by the hobbett, and the price having been included in an account stated and settled between them, it was held, that the defendant might avail himself of the sale in support of a plea of set-off to an action brought against him by the plaintiff. "The general proposition," said Lord Abinger, may be admitted, that a seller cannot enforce a contract of this sort by action, or in support of a plea of set-off. But the question here is, whether a settlement of accounts, equivalent to a payment in cash, has not taken place between the parties?"

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Examples of the rule, that money paid in pursuance of an illegal contract, shall not be brought back again, are to be found in B. N. P. 16, 132; Howson v. Hancock, 8 T. R., 575; Browning v. Morris, Cowp. 790; Andrée v. Fletcher, 3 T. R., 266; Vandyck v. Hewitt, 1 East, 97; Lubbock v. Potts, 4 East, 449; which shew, that, in case of illegal insurance, the premium

cannot be recovered back, notwithstanding that, the insurance being void, the underwriters could not have been compelled to pay the loss; though it is otherwise where the illegality has been occasioned by an accident, of which the insured could not have been aware, such as the breaking out of hostilities between the country of the insured and this country, of which no news had arrived at the place where the insurance was effected. Oom v. Bruce, 12 East, 225; and see Hentig v. Stanniforth, 5 M. & S., 122. It must be observed that the generality of this doctrine is subject to some qualifications, for, though, generally speaking, money paid in pursuance of an illegal contract cannot be recovered, yet where the contract has been rendered illegal by an act the object of which is to protect one class of men against another, or where the contract has been made in consequence of oppression on one side, and submission on the other, persons belonging to the class whose protection is the object of the law, may recover back from those against whom it is intended to protect them, payments made under such a contract; see Smith v. Bromley, Dougl. 696 n., B. N. P. 133; Jaques v. Golightly, 2 Bl. 1073; Jaques v. Withy, 1 H. Bl. 65; Williams v. Hedley, 8 East, 378; Taylor v. Lendey, 9 East, 49; Smith v. Cuff, 6 M. & S. 160. And it must also be observed, that even money paid in pursuance of an illegal contract by one of the parties to it, but paid, not to the other party, but to a stakeholder, may be recovered back from the stakeholder before it had reached the other party's hands; for to permit this is merely to allow a locus pœnitentiæ, and to prevent the illegal contract from being