ed, it is another principle, that plain unambiguous words need no interpretation, and subtlety and refinement upon terms would defeat the sense. The bulk of mankind act and deal with great simplicity; and on this is founded the rule that benigna faciendæ interpretationes cartarum propter simplicitatem laicorum. Words are to be taken in their popular and ordinary meaning, unless some good reason be assigned to show that they should be understood in a different sense. Quotius in verbis nulla est ambiguitas ibi nulla expositio contra verba fienda est. Si nulla sit conjecturæ quæ ducat alio, verba intelligenda sunt ex proprietate, non grammatica sed populari ex usu. But if the intention be doubtful, it is to be sought after by a reference to the context, and to the nature of the contract. It must be a reasonable construction, and according to the subject matter and motive.b Sensus verborum ex causa dicentis accipiendus est, et secundum subjectam materiam. The whole instrument is to be viewed and compared in all its parts, so that every part of it may be made consistent and effectual. Ex antecedentibus et consequentibus optima fit interpretatio. So also ad proximum antecedens fiat relatio, nisi impediatur sententia. The relative same refers to the next antecedent, though the word said does only when the plain meaning of the writing requires it. The sense of the instrument is to be sought also, by a reference to the usage of the place, or the lex loci, according to another of the maxims of interpretation in the civil law. Si non appareat quid actum est, in contractibus veniunt ea quæ sunt moris et consuetudinis in regione in qua actum est.d Ifit be a mercantile case, *556 and the instrument be *not clear and unequivocal, evi

a Grotius de Jure B. et P. 2. 16. 2.

↳ Ashhurst, J., 1 Term Rep. 703. Best, Ch. J., 2 Bing. Rep. 519. • Co Litt. 20. b. 385. b.

a Dig. 50. 17. 34. Mr. Justice Story, in his Comm. on the Conflict of Laws, p. 225-233, has enforced by numerous authorities, and by illustrations, the general rule, that, in the interpretation of contracts, the law and custom of the place of the contract are to govern.

dence of the usage or course of trade at the place where the contract is to be carried into effect, is admissible to explain the meaning and remove the doubt.a

The law places more reliance upon written than oral testimony; and it is an inflexible rule that parol evidence is not admissible to supply or contradict, enlarge or vary, the words of a contract in writing. That would be the substitution of parol to written evidence under the hand of the party, and it would lead to uncertainty, error, and fraud.b Parol evidence is received, when it goes, not to contradict the terms of the writing, but to defeat the whole contract, as being fraudulent or illegal; for it then shows, that the instrument never had any valid operation; and this rule is supported on grounds of policy and necessity. So, when a contract is reduced to writing, all matters of negotiation and discussion on the subject, antecedent to, and dehors the writing, are excluded, as being merged in the instrument. In the case, however, of a latent ambiguity, or one not appearing on the face of the instrument, but arising entirely in the application of it— as when the person or object in view is not designated with precision—the maxim fitly applies, that ambiguitas verborum latens verificatione suppletur; nam quod ex facto oritur ambiguum verificatione facti tollitur.d

■ Webb v. Plummer, 2 Barnw. & Ald. 746. Coit v. Com. Ins. Co., 7 Johns. Rep. 385. Gibbon v. Young, 8 Taunt. Rep. 261. Bottomley v. Forbes, 5 Bingham, N. C. 121. If technical terms are employed, they are to be taken in a technical sense-verba artis ex arte.

b Piersons v. Hooker, 3 Johns. Rep. 68. Jackson v. Foster, 12 Ibid. 488.

Abbott, Ch. J., in Kain v. Dodds, 2 Barnw. & Cress. 627.

Parkhurst

v. Van Cortlandt, 1 Johns. Ch. Rep. 273. Dean v. Mason, 4 Conn. Rep. 428.

Lord Bacon's maxim, Regula, 23. Cole v. Wendel, 8 Johns. R. 90. It is a well settled rule, and one which has been acknowledged in all the cases on the subject, from Cheyney's case, 5 Co. 68, down to this day, that parol evidence is inadmissible to supply or contradict, enlarge or vary the words of a will, or explain the intention of the testator, except in a case of a latent ambiguity arising dehors the will, as to the person or subject meant to be described, or to rebut a resulting trust. Mann v. Executors

The rule that the language of a deed or contract is to be taken most strongly against the party using it, (verba ambigua fortius accipiuntur contra proferentem,) though it be a rule, according to Lord Bacon, "drawn out of the depth of reason," applies only to cases of ambiguity in the words, or where the exposition is requisite to give them lawful effect. It is a rule of strictness and rigour, and not to be resorted to but where other rules of

557

exposition fail.a The modern and more reasonable practice is, to give to the language its just sense, and to search for the precise meaning, and one requisite to give due and fair effect to the contract, without adopting either the rule of a rigid or of an indulgent construction. The Roman law maxims of interpretation in such cases were, that in dubiis benigniora præferenda sunt. In obscuris quod minimum est, sequimur-secundum promissorem interpretamur.b The true principle of

sound ethics is, to give the contract the sense in which the person making the promise believed the other party to have accepted it, if he in fact did so understand and accept it. c

of Mann, 1 Johns. Ch. R. 234. Doe v. Chichester, 4 Dow's P. C. 65. 96. Hand v. Hoffman, 3 Halsted's R. 71. The rule as to the ambiguity applies equally to deeds and to all written instruments. Ibid. Meres v. Ansell, 3 Wils. Rep. 275. The maxim of Lord Bacon, that ambiguitas patens is never helped by averment is too general. It is subject to qualifications, and this is sufficiently shown in the learned decision, in Fish v. Hubbard's Administrators, 21 Wendell, 651. In extrinsic cases parol evidence is often admitted to explain a patent ambiguity. Duer on Insurance, vol. i. 170. At the end of the Treatise of Mr. Wagram on the adoption of Extrinsic Evidence, there are observations on the cases relative to Lord Bacon's rule concerning latent and patent ambiguities.

Bacon's Maxims of the Law, No. 3. b Dig. 45. 1. 99. Ibid. 50. 17. 9. 56. However if the deed from its ambiguity creates a doubt, the construction is to be favorable to the grantee, and there is no distinction, in this respect, between the language of the grant itself, and that of any exception or reservation contained in it. Ch. J. Parker cites the authorities and enforces the rule in his able decision in Cocheco Man. Co. v. Whittier, 10 N. H. Rep. 305.

Every treaty, says Vattel, should be interpreted as the parties under

If the object of the contract be present, an error in the name does not vitiate it; as, if A. gives a horse to C., (D. being present,) and says to him, (C.,) " D., take this horse," the gift is good notwithstanding a mistake in the name; for the presence of the grantee gives a higher degree of certainty to the identity of the person than the mention of his name. So, if the error consists in the demonstration or reference, and not in the name of the thing as if A. grant to B. his lot of land called Dale, in the parish of B., in the county of D., and the lot lies in the county of H., yet the falsity of the addition does not affect the efficacy of the contract. Many other cases to the like effect are put by Lord Bacon, and given by way of illustration of the rule, that præsentia corporis tollit er. rorem nominis, et veritas nominis tollit errorem demonstrationis.a

stood it, when the act was prepared and accepted. Droit des Gens, b. 2. ch. 17, sec. 268. Vide supra, vol. i. 460, note.

Bacon's Maxims of the Law, Reg. 25. Smith v. Smith, 1 Edw. Ch. Rep. 189. Doe v. Cranstoun, 7 Mees. & W. 1.

LECTURE XL.

OF BAILMENT.

BAILMENT is a delivery of goods in trust, upon a contract expressed or implied, that the trust shall be duly executed, and the goods restored by the bailee, as soon as the purpose of the bailment shall be answered.a

There are five species of bailment, according to Sir William Jones, in his correction of Lord Holt's enumeration of the different sorts of bailments.

I. Depositum, or a naked deposit without reward. II. Mandatum, or commission, which is gratuitous, and by which the mandatory undertakes to do some act about the thing bailed.

III. Commodatum, or loan for use without pay, and when the thing is to be restored in specie.

IV. A pledge, as when a thing is bailed to a creditor as a security for a debt.

*559 *V. Locatio, or hiring for a reward.b

2 Blacks. Com. 452. Pothier, Trailé du Contrat de Dépôt, No. 1. Mr. Justice Story, in his Commentaries on the Law of Bailments, speaks of a consignment to a factor, as being a bailment for sale; and he applies the term bailment to cases in which no return or delivery, or re-delivery to the owner or his agent, is contemplated. But, I apprehend, this is extending the definition of the term beyond the ordinary acceptation of it in the English law.

> Jones' Essay on the Law of Bailments, 27, 1st edit. 1790. Bailments have been reduced, by a late master hand, to three kinds: 1. Those in which the trust is for the benefit of the bailor, and which embrace deposits and mandates. 2. Those in which the trust is for the benefit of the