in the construction of statutes by the intention of the legislature, which they have always taken according to the necessity of the matter, and according to that which is consonant to reason and sound discretion.1

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Thus, it sometimes happens that in a statute, the language of which may fairly comprehend many different cases, some only are expressly mentioned by way of example merely, and not as excluding others of a similar nature. So, where the words used by the legislature are general, and the statute is only declaratory of the common law, it shall extend to other persons and things besides those actually named, and, consequently, in such cases, the ordinary rule of construction cannot properly apply. Sometimes, on the contrary, the expressions used are restrictive, and intended to exclude all things which are not enumerated. Where, for example, certain specific things are taxed, or subjected to any charge, it seems probable that it was intended to exclude everything else even of a similar nature, and à fortiori, all things different in genus and description from those which are enumerated. So, it is agreed that mines in general are not rateable to the poor within the stat. 43 Eliz. c. 2, and that the mention in that statute of coal-mines is not by way of example, but in exclusion of all other mines.2

By stat. 2 Will. 4, c. 45, s. 27,3 the right of voting in boroughs is given to every person who occupies, either as owner or tenant, "any house, warehouse, counting-house, shop, or other building, being, either separately, or jointly with any land" within such city or borough, occupied therewith by him under the same landlord, of the clear yearly value of not less than 107.; it was held, that, under this section, two distinct buildings cannot be joined together in order to constitute a borough qualification. "The rule, expressio unius est exclusio alterius," observed Tindal, C. J., "is, I think, applicable here. I cannot see why the legislature should have provided for the joint occupation of a building and land, and not for

1 Plowd. 205 b.

2 See arg., R. v. Woodland, 2 East 166; and in R. v. Bell, 7 T. R. 600; R. v. Cunningham, 5 East 478; per Lord Mansfield, C. J., Governor of Company for Smelting Lead v. Richardson, 3 Burr. 1344; Steer Par. L., 3d ed., 486,

3 In connection with which see, now, stat. 30 & 31 Vict. c. 102, s. 3.

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1

that of two different buildings, if it had been intended that the latter should confer the franchise." Lastly, where a general Act of Parliament confers immunities which expressly exempt certain persons from the effect and operation of its provisions, it excludes all exemptions to which the subject might have been before entitled at common law; for the introduction of the exemption is necessarily exclusive of all other independent extrinsic exceptions.2

The following remarks of an eminent legal authority, showing the importance of the maxim considered in these preceding pages, when regarded as a rule of evidence rather than of construction, are submitted as well deserving attention:

"It is a sound rule of evidence, that you cannot alter or substantially vary the effect of a written contract by parol proof. This excellent rule is intended to guard against fraud and perjuries; and it cannot be too steadily supported by courts of justice. Expressum facit cessare tacitum-vox emissa volat-litera scripta manet, are law axioms in support of the rule; and law axioms are nothing more than the conclusions of common sense, which have been formed and approved by the wisdom of ages. This rule prevails equally in a court of equity and a court of law; for, generally speaking, the rules of evidence are the same in both courts. If the words of a contract be intelligible, says Lord Chancellor Thurlow,3 there is no instance where parol proof has been admitted to give them a different sense. 'Where there is a deed in writing,' *he observes in another place, it will admit of no contract [*667] which is not part of the deed.' You can introduce nothing on parol proof that adds to or deducts from, the writing. If, however, an agreement is by fraud or mistake made to speak a different language from what was intended, then, in those cases, parol proof is admissible to show the fraud or mistake. These are cases excepted from the general rule.'

115

We do not propose to dwell at length upon the maxim, Expressum facit cessare tacitum; a cursory glance even at the con

1 Dewhurst app., Fielden resp., 8 Scott N. R. 1013, 1017.

Dwarr. Stats., 2d ed., 605; R. v. Cunningham, 5 East 478; 3 T. R. 442.

3 Shelburne v. Inchiquin, 1 Bro. C. C. 341.

Lord Irnham v. Child, 1 Bro. C. C. 93.

Per Kent, C. J., 1 Johns. (U. S.) R. 571, 572.

tents of the preceding pages will show it to be of important and extensive practical application, both in the construction of written instruments and verbal contracts, as also in determining the inferences which may fairly be drawn from expressions used or declarations made with regard to particular circumstances. It is, indeed, a principle of logic and of common sense, and not merely a technical rule of construction, and might, therefore, be illustrated by decided cases, having reference probably to every branch of the legal science. It, moreover, has an important bearing upon the doctrine of our law as to implied undertakings and obligations. If A. covenants or engages by contract to buy an estate of B. at a given price, although that contract may be silent as to any obligation on the part of B. to sell; yet, as A. cannot buy without B. selling, the law will imply a corresponding obligation on the part of B. to sell. So, if a man engages to work and render services. which necessitate great outlay of money, time, and trouble, and he is only to be paid by the measure of the work he has performed, the contract *necessarily presupposes and implies on the [*668] part of the person who engages him, an obligation to supply the work. So where there is an engagement to manufacture some article, a corresponding obligation on the other party is implied to take it, for otherwise it would be impossible that the party bestowing his services could claim any remuneration."

Many instances similar to the foregoing might be put,3 where the act to be done by the party binding himself can only be done upon. something of a corresponding character being done by the opposite party, and where a corresponding obligation to do the things necessary for the completion of the contract would be implied. In any case, where a contract is thus silent, the court or jury who are called upon to imply an obligation on the other side, which does not appear in the terms of the contract, must take care that they do not make the contract speak where it was intentionally silent;

2 Per Cockburn, C. J., Churchward v. Reg., L. R. 1 Q. B. 195. There is an implied covenant by a grantor that he shall not derogate from his grant, ante, p. 282, Gerard v. Lewis, L. R. 2 C. P. 305.

The doctrine as to implied undertakings was much considered in Francis v. Cockrell, L. R. 5 Q. B. 184; Readhead v. Midland R. C., L. R. 4 Q. B. 379; Ford v. Cotesworth, L. R. 4 Q. B. 127; Stirling v. Maitland, 5 B. & S. 840 (117 E. C. L. R.); Harmer v. Cornelius, 5 C. B. N. S. 236 (94 E. C. L. R.).

and, above all, that they do not make it speak entirely contrary to what, as may be gathered from the whole terms and tenor of the contract, was the intention of the parties.1

The maxim above commented on, is, however, as recently remarked, "by no means of universal conclusive application. For example: it is a familiar doctrine that though where a statute makes unlawful that which was *lawful before, and ap[*669] points a specific remedy, that remedy must be pursued, and no other; yet where an offence was antecedently punishable by a common law proceeding, as by indictment, and a statute prescribes a particular remedy in case of disobedience, that such particular remedy is cumulative, and proceedings may be had either at common law or under the statute." And where a charter incorporating a trading company declared in case "the defendants should fail to enter into and execute a deed of settlement, and deposit it as directed, or in case they should not comply with any other of the directions and conditions contained in the letters patent, that it should be lawful for the Crown, by any writing under the great seal or under the sign manual, to revoke and make void the charter, either absolutely or under such terms and conditions as the Queen thought fit," it was held that the intention of the proviso was to give a remedy in addition to that by way of scire facias, and that the maxim Expressum facit cassare tacitum was consequently inapplicable.3

EXPRESSIO EORUM QUÆ TACITE INSUNT NIHIL OPERATUR. (2 Inst. 365.)

The expression of what is tacitly implied is inoperative.

"The expression of a clause which the law implies works nothing." For instance, if land be let to two persons for the term of their lives, this creates a joint tenancy;

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1 Per Cockburn, C. J., L. R. 1 Q. B. 195–6.

2 Per Williams, J., 2 E. & B. 879 (75 E. C. L. R.).

3 Eastern Archipelago Co. v. Reg., 2 E. & B. 856 (75 E. C. L. R.); s. c., 1 E. & B. 310 (72 E. C. L. R.).

44 Rep. 73; 5 Rep. 11; Wing. Max., p. 235; Finch's Law 24; D. 50. 17. 81. In Hobart R. 170, it is said that this rule "is to be understood having respect to itself only, and not having relation to other clauses." The rule

and if the words "and the survivor of them" are added, they will be mere surplusage, because, by law, the term would go to the survivor. So, upon a lease reserving rent payable quarterly, with a proviso that, if the rent were in arrear twenty-one days next after the day of payment being lawfully demanded, the lessor might reenter, it was held, that, five years' rent being in arrear, and no sufficient distress on the premises, the lessor might re-enter without a demand, and the above maxim was held to apply; for, previous to the stat. 4 Geo. 2, c. 28, a demand was necessary as a consequence of law, whether the lease contained the words "lawfully demanded" or not. Then the statute says, that "in all cases where half a year's rent shall be in arrear, and the landlord has a right of entry," the remedy shall apply, provided there be no sufficient distress; that is, the statute has dispensed with the demand which was required at the common law, whether expressly provided for by the stipulation of the parties or not. In like manner, if there be a devise of "all and singular my effects," followed by the words "of what nature or kind soever," the latter words are comprehended in the word "all," and only show that the testator meant to use "effects," in its largest natural sense: this devise, therefore, will not pass real property, unless it can *be collected from the will itself that such was the testator's [*671]

intention.3

2

Again, every interest which is limited to commence and is capable of commencing on the regular determination of the prior particular estate, at whatever time the particular estate may determine, is, in point of law, a vested estate; and the universal criterion for distinguishing a contingent interest from a vested estate is, that a contingent interest cannot take effect immediately, even though the supra is applied in Wroughton v. Turtle, 11 M. & W. 569, 570; and in Lawrance v. Boston, 7 Exch. 28, 35, in reference to the operation of the Stamp Acts. See also Ogden v. Graham, 1 B. & S. 773 (101 E. C. L. R.).

1 Co. Litt. 191 a, cited, arg., 4 B. & Ald. 306 (6 E. C. L. R.); 2 Prest. Abst. Tit. 63. See also per Lord Langdale, M. R., Seifferth v. Badham, 9 Beav. 374. The maxim supra is applied, per Martin, B., in Scott v. Avery, 5 H. L. Cas. 829.

2 Doe d. Scholefield v. Alexander, 2 M. & S. 525; Doe d. Earl of Shrewsbury v. Wilson, 5 B. & Ald. 364, 384 (7 E. C. L. R.).

See Doe v. Dring, 2 M. & S. 448, 459; Doe d. Scruton v. Snaith, 8 Bing. 146, 154 (21 E. C. L. R.).