yet appeared. It is unquestionably true, that the effect of repeated edi tions of the very best treatises upon the leading topics in the law, must be somewhat perceptible, in marring their original symmetry of proportion, since many of its sections and chapters gain, or lose, in relative importance, with the advancing life of trade and commerce, quite in an inverse ratio to each other. But Mr. Bennett is so much of a lawyer, and has had so much experience in book-making, that he contrives, better than most editors, to preserve the original symmetry of his author. He has here given us a greatly improved edition of a most excellent work.

I. F. R.

REPORTS OF CASES ARGUED AND DETERMINED IN THE SUPREME COURT OF THE STATE OF WISCONSIN. By PHILIP L. SPOONER, Official Reporter. Vol. XIII. Containing cases decided at the June Term, 1860, not before reported, and most of the cases decided at the January Term, 1861. Madison, Wisconsin: Atwood & Rublee. 1862.

We have examined this late volume of Reports from the comparatively new State of Wisconsin, and have been struck with the evident superiority of most of the opinions of the judges to those which often appear of late in the reports of the older and more commercial States. It may be a false conceit of our own into which we have fallen, without any sufficient reason; but it has seemed to us, from a hasty and imperfect examination of many of the later volumes of reports in those States where there is the greatest pressure upon the time of the judges, as if the opinions were losing all reliableness of character, as guides to the law. Almost every question of law is evaded, or dodged, so to speak, and the case decided upon some forced, and often false construction of facts, in order to avoid the responsibility of settling a contested question of law.

There is, perhaps, some excuse for this, where the judges have to sit in court three hundred days in the year; but, after all, it is ruin to the jurisprudence of a State, and will prove bad economy in the end. The State ought to provide such a force upon its highest judicial tribunal, that the cases can be fully heard, and fairly considered and decided, in a straight up and down way, and not by resort to that degree of chevisance and evasion, which would be regarded as constructive fraud in the parties to a sale by an insolvent debtor.

Mr. Spooner's part of the work is faithfully and laboriously performed, as it ought to be, since there are few positions of more responsibility than that of the reporter of legal decisions.

I. F. R.

THE

AMERICAN LAW REGISTER.

JANUARY, 1863.

INTERPRETATION AND CONSTRUCTION OF CON

TRACTS.

The enforcement of contracts either by giving damages at law for their non-performance, or by decreeing their specific performance in equity, requires their proper interpretation and construction. By the former is understood the act of finding out the true sense of the words embraced in the contract, so as to enable others to derive from them the same idea which the contracting parties intended to convey. The latter relate rather to the drawing of conclusions concerning subjects lying beyond the direct expressions contained in the instrument; or to such as are fairly within its spirit, although not within its letter. The great object of both is to arrive at the intention of the parties by a fair construction of the words which they have made use of in mutually binding each other to the performance or omission of certain acts or things, which they have attempted to specify in their agreement. To facilitate this the more readily, the law, through the medium of Courts of justice, has devised certain rules of interpretation and construction, which are not merely conventional rules, but are the canons by which all writings are to be construed, and the meaning and intention of men to be ascertained. These rules or canons of construction are to be applied with consistency and uniformity.

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In them are found the aids or assistants resorted to both by Courts of law and equity in the administration of justice. Our purpose will be simply to call attention to a few of the most important of these aids in which will be found embraced the canons of construction. Of these there are two principal sources.

First. The consideration of that which is embraced within the instrument which embodies the contract.

Second. That which lies outside of the instrument, but which is accessible for the purpose of modifying its terms, and giving It proper effect.

First. In regard to the first, parties may so draw their contracts as to leave little, if anything, to interpretation or construction. Whenever they clearly express their intention, that will prevail, although they may have been unfortunate in the terms selected for that purpose. Even where terms are omitted they will be supplied if the intention clearly calls for them: as in Bache vs. Proctor, 1 Doug. 382, where the condition of a bond of £2000 was to "render a fair, just, and perfect account in writing of all sums received." The Court held the condition broken by a neglect on the part of the obligor to pay over such sums. See also Doe vs. Spry, 1 B. & Ald. 617.

Where the terms of a promise admit of more senses than one, the question will naturally arise as to what is the rule or criterion to be adopted in the performance of it. The law here adopts the rule of ethics as laid down by Paley, viz., that "the promise is to be performed in that sense in which the promissor apprehended, at the time, that the promissee received it." Gunnison vs. Bancroft, 11 Vermont 493.

Of those rules of construction that are so well settled as to have passed into canons, we may enumerate the following.

1. Whatever sense may be adopted, the construction must be reasonable. To apply this rule properly, it may sometimes become necessary to consider the subject-matter of the agreement. Ex pressions that may be susceptible of two meanings must be take in that which best agrees with the matter of the contract. I Guier vs. Page, 4 Serg. & Rawle 1, a sale made for "approve

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indorsed paper" was held to mean paper which ought to be approved. In Jones vs. Shears, 7 C. & P. 346, a tenant agrees to work a colliery so long as it is fairly workable." Although there were still coals in the mine, but of such a description that it would not pay to work it, it was held that the tenant was not obliged to work the mine at a dead loss. The ultimate limit beyond which no latitude of construction can be carried is that the words and language of the instrument will bear the sense sought to be put upon them.

2. The construction shall be liberal; that is, the terms of the agreement shall be construed according to their most comprehensive, popular sense, provided there be nothing in it to show that they were intended to be used in a more confined interpretation. Packard vs. Hill, 7 Cow. 434. An indefinite expression shall be understood universally unless there be otherwise some reason to restrain it. Thus, in the Year Book, 19 Hen. 6, 41, two persons having goods in jointure give all their goods. Held, that this passes not only the goods they have in jointure, but also their several goods.

3. The construction shall be favorable—that is, it shall be of such a character as that the agreement, if practicable, shall be supported. Every presumption shall be in favor of the validity of a contract, and Courts wili, if possible, so construe its terms as to give it some operation. Hence, words which are susceptible of two senses, one agreeable to, the other against the law, shall have given to them the former sense. Thus, in Harrington vs. Kloprogge, 4 Doug. 5, a bond is given conditioned to assign all offices. Held to apply only to such offices as are by law assignable. A stipulation, by a particular construction, would be frivolous and ineffectual, but by a contrary exposition, though in itself less appropriate, a different effect would be produced; the latter interpretation shall be adopted. Pugh vs. Duke of Leeds, Cowper 714.

4. The popular meaning of words shall be adopted; that is, the terms of a contract are to be understood and taken in their plain, ordinary, and popular sense, unless they have, in respect to the sabject-matter, acquired a particular sense, distinct from the popu

lar one of the same words; or unless by a reference to the context, it is manifest that in the particular instance they were understood by the parties in some other special sense. Lord Dormer vs. Knight, 1 Taunt. 417.

5. The whole of the agreement must be carefully considered. Courts are required to give a construction to the entire instrument, and although the difficulty may lie in a single clause, yet, in giving a construction to that, the context should be carefully examined, and the whole agreement referred to. The principle is to give, if possible, effect to every part of the instrument. Any sweeping clause contained in it is made to take effect only as to estates and things of the same nature and description as those that have been previously mentioned. Moore vs. Magruth, Cowper 9. The recital contained in an instrument is always important as indicating clearly the minds of the parties as to what is really the subjectmatter of their agreement. That which is contained in a bond is resorted to for the purpose of limiting its condition. Liverpool Waterworks vs. Atkinson, 6 East 507. So, also, may a recital be examined to ascertain the meaning of the parties; and the general words of a clause or stipulation may be explained or qualified by the matter recited. Payler vs. Homersham, 4 M. & Selw. 423. A recital may even amount to an agreement where it is to be called into action to discover and give effect to the obvious meaning of the parties, provided it is plain, from the whole tenor of the instrument, that the parties mutually contemplated and intended that the matter or act should be performed. Samson vs. Easterby, 9 B. & C. 505. Words introduced by way of exception may be so construed as to constitute an agreement. Duke of St. Albans vs. Ellis, 16 East 352. The principle extends further, and creates a contract out of words put into a clause which is introduced as a proviso or condition, if there is sufficient to show that the parties contemplated an agreement that the particular act mentioned in the clause should be done. Halder vs. Taylor, Brownlow 23. lessee covenants to repair, "provided always, and it is agreed, that the lessor shall find timber, &c." Held, a contract to find the timber, &c.

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