INTRODUCTORY CHAPTER ON THE CONSTRUCTION OF DOCUMENTS. THE documents whereby conclusions or directions are recorded are various in kind, and the rules for their interpretation must somewhat vary. But underlying the special rules for construing the different classes of documents, there are two fundamental rules. 1. Every Document must be read in its true light. Bearing that Rule in mind we get the full and proper meaning of the doctrine enunciated by Lord Wensleydale in Grey v. Pearson (a), that ; II. "En construing Wills, and, indeed, Statutes and all Written Enstruments, the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to absurdity, or some repugnance or inconsistency with the rest of the instrument; in which case the grammatical and ordinary sense of the words may be modified so as to avoid that absurdity, repugnancy, or inconsistency, but no further." In repeating this latter canon in Abbott v. Middleton (b), Lord Wensleydale said," This rule was in substance laid down by Mr. Justice Burton in Warburton v. Loveland (c). It had previously been (a) 26 L. J. Ch. 481; 6 H. L. Ca. 106. described by Lord Ellenborough in Doe v. Jessep (d), as a rule of common sense as strong as can be.' It had been stated (by Lord Cranworth when Chancellor) as a Cardinal Rule,' from which, if we departed, we should launch into a sea of difficulties not easy to fathom (e); and as the Golden Rule when applied to Acts of Parliament, by Chief Justice Jervis, in Mattison v. Hart (f), and by Mr. Justice Maule as 'the most general of rules, a general rule of great utility,' in Gether v. Capper (g).” But a little reflection will show that this Golden Rule cannot be properly applied until the document under discussion has been put in its true light. How otherwise can the "Ordinary Sense" of the words employed be rightly determined? A word ordinarily employed in one sense in the time of Queen Elizabeth, may have quite another ordinary sense now. So that in construing statutes some regard must be had to the time of their enactment (h). So of a Will, the circumstances which the testator would, or ought to, consider when making it, must be borne in mind (i). So in construing a Mercantile Document before you can begin to read it in its ordinary sense, you have to know somewhat of the trade to which it relates, and it is often required to know the sense in which the phrases employed are used in that trade. That is to say, you must put the document in its true mercantile light. So again a word sometimes has a legal meaning, different from its popular meaning; and then the circumstances at the inception of the document, have to be attended to in order that it may be seen whether the word in question is a phrase of art, and so to receive its ordinary legal meaning, or whether it has been used as the language of common life, and, therefore, to receive its ordinary popular meaning. In such a case either meaning would be the ordinary meaning; and what would have, in the first instance, to be determined would be,— which ordinary meaning ought to be adopted ? That could only be done by, first of all, putting the document in its true (d) 12 East, 293. (e) Gundry v. Pinniger, 1 D. G. M. & G. 502; 21 L. J. Ch. 405. (f) 23 L. J. C. P. 108; 14 C. B. 385. (g) 24 L. J. C. P. 71; 15 C. B. 706: Va. Rhodes v. Rhodes, 51 L. J. P. C. 53; 7 App. Ca. 192: and per Halsbury, L. C., Leader v. Duffy, 58 L. J. P. C. 16; 13 App. Ca. 301. (h) Vth. Ward v. Folkestone W. Works Co., 24 Q. B. D. 331. (i) Per Ld. Blackburn, Bowen v. Lewis, 54 L. J. Q. B. 67; 9 App. Ca. 913. light, by considering the circumstances out of which the document arose. Written documents cannot dispense with extrinsic illumination. Indeed many documents need the aid of parol evidence (j). And though the general rule of law prevents the admissibility of extrinsic evidence to vary a written document; yet it is conceived that that rule (to which there are many exceptions) only shuts out evidence of extrinsic facts directly and specially relating to the document in question, and never prohibits the consideration of the circumstances that are general to the class of documents of which that in question is one. In other words, there is no rule of law which prevents any document being read, as it ought to be read, in its true light. The law indeed interposes to determine what extrinsic circumstances may be employed by the light of which particular classes of documents may be read. Hereon the reader is referred to the works which will be found enumerated at the close of this chapter. It is, however, safe to say that it is better (where possible) to gather the circumstances out of which the document under consideration arose from the document itself. This can mostly be done by considering its recitals and general structure; whilst the meaning of individual phrases is frequently, even if not generally, shown by the context, on the principle that words, like men, are known by the company they keep (Noscitur a sociis),-in truth "every possible expression a man can use may be explained away by the context " (k). It may possibly be objected that the first canon here proposed is only a part of that so firmly laid down by Lord Wensleydale. But though the two canons are intimately associated, yet the first is quite distinct from the second. The first is the intimate preface of the second. By applying the first a knowledge is obtained about a document; the second then guides to its true interpretation. As to this second canon of construction, those who say a document is not to be read literally must show some reason why (1). Not so very long ago one used to hear something about the Equity of a Statute, and about construing private documents on their broad principle. But though narrow technicalities are not now (j) V. Obs. of Jessel, M. R., Shardlow v. Cotterill, 51 L. J. Ch. 356; 20 Ch. D. 93, (k) Per Wood, V.-C., Holmes v. Prescott, 33 L. J. Ch. 271. (1) Per Jessel, M. R., Sutton v. Sutton, 52 L. J. Ch. 335 ; 22 Ch. D. 516, favoured by the Courts, yet it is perhaps not too much to say that the principle laid down in Grey v. Pearson is now universally applied so as to hold all documents to mean what they say,-the question now being, What does the document say? If it speaks plainly, that plain meaning is to be followed: if it speaks ambiguously, or doubtfully, the meaning of what it says must be ascertained in a natural and grammatical manner, and by such aids as the law allows if it speaks so as to lead to absurdity, repugnancy or inconsistency, that absurd, repugnant or inconsistent conclusion is rejected. because it could not have been meant (m). In every case, therefore, what has to be sought is, What does the document say ?-e. g., a case must be within the words of a statute; it is not enough to say that it is within the mischief intended to be prevented (n). Sweeping general words often present a difficulty. Their wide terms induce the doubt as to whether they were employed in their absolutely literal sense, and whether so to construe them would not conduct to absurdity. In such cases it has been said:"One of the safest guides to the construction of sweeping general words, which it is difficult to apply in their full literal sense, is to examine other words of like import in the same instrument, and to see what limitations must be imposed on them. If it is found that a number of such expressions have to be subjected to limitations or qualifications, and that such limitations or qualifications are of the same nature, that forms a strong argument for subjecting the expression in dispute to a like limitation or qualification" (o). But, probably, it is not possible to formulate any rule that would guide safely to the conclusion that the literal meaning of any given phrase is to be set aside on the ground of its leading to absurdity, repugnancy or inconsistency; and still less as to what should be the reading in lieu of that so set aside. Each case of that kind, unless covered by authority, would have to take care for itself, subject to this one general principle, which would probably be of universal acceptation, that the argument of convenience ought not to prevail except as a last resource (p). (m) Per Parke, B., Miller v. Salomons, 21 L. J. Ex. 191; 7 Ex. 546. (n) Scott v. Legg, 2 Ex. D. 39; 46 L. J. M. C. 267. (0) Blackwood v. The Queen, 52 L. J. P. C. 14; 8 App. Ca. 94. (p) Per Jessel, M. R., Spencer v. Metrop, Bd. of Works, 52 L. J. Ch. 255; 22 Ch. D. 167. To say, as even eminent judges have said, that documents are to be construed by the light of Common Sense does not seem to render verbal problems more easy of solution. Common Sense, as here applied, is a term of the pumpkin order. It is round, smooth and fair to view but hollow. It was Common Sense which proved to the wise men of antiquity that there could be no antipodes: for how could people walk with their heads downwards like flies from a ceiling? It is, perhaps, more to the purpose to say that "Popular language should be expounded popularly" (q). But before that rule can be brought into operation it must be ascertained whether the words in question are popular ones or not. To this end the first canon here stated may, possibly, be useful. Thus, Acts of Parliament, as proceeding from a popular assembly, frequently, and Mercantile Contracts, as employing the language of the market, generally, will be interpreted in a popular sense (r); whilst Deeds, Wills professionally prepared, and such-like solemn and formal documents are usually couched in the language of conveyancers, and the "Ordinary Sense" of such language would be its technical meaning. But irrespective of the distinction between technical and popular meanings, a word may have different meanings, and then we get this Rule," Where we find a term which is used in more than one sense, which has a primary, secondary and tertiary meaning, the rule of construction is this-The law has settled which of its several meanings is the primary one, and then you require a context to give it one of its other meanings" (s). To say that the law "has " settled the primary meaning of words is only true in a very limited measure indeed. The primary legal meaning of a word can never be absolutely predicated until the authorities on that word are duly considered; and then not always. When, however, such primary meaning is known (and it is hoped that this Dictionary may to some degree help in that knowledge), then the rule as stated in Pigg v. Clarke guides to the "Ordinary Sense" of a word having more than one meaning. But when the primary legal meaning has not been settled by decision, then it is necessary to remember that (g) Per Pollock, C. B., Aggs v. Nicholson, 25 L. J. Ex. 350; 1 H. & N. 165. (r) V. per Esher, M. R., on Charter-Parties, Nottebohm v. Richter, 56 L. J. Q. B. 34. (s) Per Jessel, M. R., Pigg v. Clarke, 45 L. J. Ch. 850 ; 3 Ch. D. 674. |