fortissimè contra proferentem; and that he could not, therefore, sue as principal on the agreement, without notice to the defendant before action brought, that he was the party really interested (0). So, if an instrument be made in terms so ambiguous as to make it doubtful whether it be a bill of exchange or promissory note, the holder may, at his election, as against the party who made the instrument, treat it as either (p). statutes. Acts of Parliament are not, in general, within the reason Wills and of the rule under consideration, because they are not the words of parties, but of the Legislature; neither does this rule apply to wills (7). Where, however, an act of Parliament is passed for the benefit of a canal, railway, or other company, it has been observed, that this, like many other cases, is a bargain between a company of adventurers and the public, the terms of which are expressed and set forth in the act, and the rule of construction in all such cases is now fully established to be, that any ambiguity in the terms of the contract must operate against the adventurers, and in favour of the public, the former being entitled to claim nothing which is not clearly given to them by the act (r). pleading. In pleading, also, it is a general rule, that, where two Ambiguous different meanings present themselves, that construction (0) Bickerton v. Burrell, 5 M. & S. 383, 386. (p) Edis v. Bury, 6 B. & C. 433; Block v. Bell, 1 M. & Rob. 149; Miller v. Thompson, 4 Scott, N. R., 204. (g) 2 Dwarr. Stats. 688; Ld. Bac. Works, vol. 4, p. 30. (r) Per Lord Tenterden, C. J., Stourbridge Canal Co. v. Wheeley, 2 B. & Ad. 793; recognised, Priestley V. Foulds, 2 Scott, N. R., 228; per Coltman, J., Id. 226; cited, Argu- Effect of pleading over. shall be adopted which is most unfavourable to the party pleading(s): ambiguum placitum interpretari debet contra proferentem; for every man is presumed to make the best of his own case (t). Thus, if in trespass, qu. cl. fr., the defendant pleads, that the locus in quo was his freehold, he must allege that it was his freehold at the time of the trespass, otherwise the plea is insufficient (u). So, where a plea of set-off stated, that, at the time of the commencement of the action, the plaintiff was indebted to the defendant in sums of money exceeding the debt claimed by the plaintiff, but omitted to add," and still is;" it was held bad on special demurrer, for the defendant not having pleaded that there was an existing debt, the Court would not infer it, but had a right to infer that it was satisfied (x). Also, in debt on a bond conditioned to make assurance of land, if the defendant pleads that he executed a release, his plea is bad if it does not express that the release concerns the same land (y). And, in an action on a bill of exchange against the acceptor, a plea of release must aver that the bill was accepted before the execution of the release (z). It must be observed, however, that ambiguity, such as the above, although ground for demurrer, is cured by verdict, or by pleading over; and at subsequent stages of the cause, that construction of the ambiguous expression must be adopted which is most favourable to the party by whom it is used (a). We may add, also, that, in construing a plea, it (s) Steph. Plead., 5th ed., 415, and n. (c), where many authorities are cited. (t) Co. Litt. 303. b.; Hobart, 242. (u) Com. Dig. "Pleader," (E. 5); Jenk. Cent. 176. (x) Dendy v. Powell, 3 M. & W. 442. (y) Com. Dig. "Pleader,” (E.5); Manser's case, 2 Rep. 3. See Goodday v. Mitchell, Cro. Eliz. 441. (z) Ashton v. Freestun, 2 Scott, N. R., 273. (a) Fletcher v. Pogson, 3 B. & C. 192, 194; Hobson v. Middleton, 6 B. & C. 295; Lord Huntingtower v. Gardner, 1 B. & C. 297. ought to be read like any other composition, and that no violent or forced construction ought to be made beyond the ordinary and fair meaning of the words employed, either to support or to invalidate it (b). general rule should be applied. Further, the rule in question, being one of some strict- When the ness and rigour, is the last to be resorted to, and is never to be relied upon but when all other rules of exposition fail (c). In some cases, it is possible that any construction which the Court may adopt will be contrary to the real meaning of the parties, and, if parties make use of such uncertain terms in their contracts, the safest way is to go by the grammatical construction, and, if the sense of the words be in equilibrio, then the strict rule of law must be applied (d). to rule When it would work a wrong to a third person. Moreover, the principle of taking words fortius contra Exception proferentem does not seem to hold when a harsh construction would work a wrong to a third person, it being a maxim that constructio legis non facit injuriam (e). Therefore, if tenant in tail make a lease for life generally, this shall be taken to mean a lease for the life of the lessor (ƒ), for this stands well with the law, and not for the life of the lessee, which it is beyond the power of a tenant in tail to grant (g); and it is a general rule that "whensoever the words of a deed or of the parties without deed may have a double intendment, and one standeth with law and right, and the other is wrongful and against law, the intendment that standeth with law shall be taken (h)." the Crown. Lastly, where a question arises on the construction of a Grant from grant from the Crown, the rule under consideration is re (b) Judgment, Hughes v. Done, 1 Q. B. 299. (c) Bac. Max., reg. 3; 2 Bla. Com. 380. (d) Per Bayley, J., Love v. Pares, 13 East, 86. (e) Co. Litt. 183. a. (f) Per Bayley, J., Smith v. Doe (h) Co. Litt. 42, 183; 2 Bla. Com. Definition of latent and patent ambiguity. Rule as to patent ambiguity. versed; for such grant is construed most strictly against the grantee, and nothing will pass to him but by clear and express words (i). AMBIGUITAS VERBORUM LATENS VERIFICATIONE SUPPLETUR; NAM QUOD EX FACTO ORITUR AMBIGUUM VERIFICATIONE FACTI TOLLITUR. (Bac. Max., reg. 25).—Latent ambiguity may be supplied by evidence; for an ambiguity which arises by proof of an extrinsic fact may, in the same manner, be removed. Two kinds of ambiguity occur in written instruments: the one is called ambiguitas latens, i. e., where the writing appears on the face of it certain, and free from ambiguity; but the ambiguity is introduced by evidence of something extrinsic, or by some collateral matter out of the instrument: the other species is called ambiguitas patens, i. e., an ambiguity apparent on the face of the instrument itself (k). Ambiguitas patens, says Lord Bacon, cannot be holpen by averment, and the reason is, because the law will not couple and mingle matter of specialty, which is of the higher account, with matter of averment, which is of the lower account in law, for that were to make all deeds hollow, and subject to averment; and so, in effect, to make that pass without deed which the law appoints shall not pass but by deed (1); and this rule, as above stated and explained, applies not only to deeds, but to written contracts in general; and (i) Argument, Rex v. Mayor, &c. of London, 1 Cr., M. & R. 12, 15, and cases there cited; Chit. Pre. of the Crown, 391. (k) Bac. Max., reg. 25. The following remarks respecting ambiguity should be taken in connexion with those on the subject of falsa demon stratio, post, p. 269. (1) Bac. Max., reg. 25; commented on 2 Phill. Ev., 9th ed., 313; Doe d. Tyrrell v. Lyford, 4 M. & S. 550; Lord Cholmondeley v. Lord Clinton, 2 Mer. 343; Judgment, Doe d. Gord v. Needs, 2 M. & W. 139; S. P., Stead v. Berrier, Sir T. Raym. 411. especially, as will be seen by the examples immediately following, to wills. On this principle, a devise to "one of the sons of J. S.” cannot be explained by parol proof (m); and if there be a blank in a will for the devisee's name, parol evidence cannot be admitted to shew what person's name the testator intended to insert (n), it being an important rule, that, in expounding a will, the Court is to ascertain, not what the testator actually intended as contradistinguished from what his words express, but what is the meaning of the words he has used (o). In each of the above cases, consequently, the devise would be void, for it holds generally, according to Lord Bacon, that all ambiguity of words within the deed, and not out of the deed, may be helped by construction, or in some cases, by election (p), but never by averment, but rather shall make the deed void for uncertainty (q); and to make a construction of a will, where the intent of the testator cannot be known, has been designated as intentio cæca et sicca (r). If a testator's words, remarks Sir James (m) Strode v. Russel, 2 Vern. 624; Cheyney's case, 5 Rep. 68. See Castledon v. Turner, 3 Atk. 257; Harris v. Bishop of Lincoln, 2 P. Wms. 136, 137; per Tindal, C. J., Doe d. Winter v. Perratt, 7 Scott, N. R., 36. See also the observations of Littledale, J., and Parke, J., in Shortrede v. Cheek, 1 A. & E. 57, where a question arose as to the sufficiency of the description of a promissory note referred to in a guaran. tie. (n) Baylis v. Att.-Gen., 2 Atk. 239; Hunt v. Hort, 3 Bro. C. C. 311; cited, 8 Bing. 254. See Sir James Wigram's remarks on this proposition in particular, and on latent and patent ambiguities in gene ral, in his Treatise on the Admission of Extrinsic Evid. in the Interpretation of Wills, 98, 126 et seq. (0) Per Parke, J., Doe d. Gwillim v. Gwillim, 5 B. & Ad. 129. (p) As, if I grant 10 acres of wood where I have 100, the grantee may elect which ten he will take; for, in such a case, the law presumes the grantor to have been indifferent on the subject. Bac. Works, vol. 4, p. 79. See also per Curiam in Richardson v. Watson, 4 B. & Ad. 787; Vin. Abr. "Grants," (H. 5). (g) Bac. Max., reg. 25; per Tindal, C. J., 7 Scott, N. R., 36; Wigram Ex. Evid., 2nd ed., 65, 75. (r) Per Rolle, C. J., Taylor v. Web, Styles, 319. |