"I have often protested against the citation of American authorities."— Ibid., at p. 331, Cotton, L. J.

"Decisions in the American Courts are entitled to great respect, but are not binding here [Chancery Division]; and there are many circumstances affecting questions arising between the laws of different States which may or may not be applicable to questions arising here.”—In re De Nicols, [1898] 1 Ch. 403, at p. 410, Kekewich, J.

"The decisions of the American Courts are not, of course, in any sense binding, but we read them with respect, and they afford useful illustrations."-Apollinaris Co. v. Nord Deutsche Insurance Co., [1904] 1 K. B. 252, at p. 260; 73 L. J. K. B. 62, at p. 65, Walton, J.

B,

E

Part II. RULES OF LEGAL INTERPRETATION

APPLICABLE TO ALL INSTRUMENTS.

SECTION I.

INTRODUCTORY CAUTIONS.

PAGE

Rules of Interpretation and Rules of Law distinguished
Maxims

Established Rules of Legal Interpretation

50

52

52

Rules of Interpretation and Rules of Law distinguished.

"In my opinion, rules of construction and rules of law differ very broadly in this point of view: that one [rule of construction] is a rule which points out what a Court should do in the absence of express or implied intention to the contrary; the other [rule of law] is one which takes effect when certain conditions are found, although the testator may have indicated an intention to the contrary."--In re Coward, Coward v. Larkman (1887), 57 L. T. 285, at p. 291, Fry, L. J.

Reasons of Rules of Law.

"Not that the particular reason of every rule in the law can at this distance of time be always precisely assigned, but it is sufficient that there be nothing in the rule flatly contradictory to reason, and then the law will presume it to be well founded. And it hath been an ancient observation in the laws of England that whenever a standing rule of law, of which the reason, perhaps, could not be remembered or discerned, hath been wantonly broken in upon by

statutes or new resolutions, the wisdom of the rule hath in the end appeared from the inconveniences that have followed the innovation."--1 Bl. Com. 70.

"The doctrine of the law, then, is this: that precedents and rules must be followed, unless flatly absurd or unjust; for though their reason be not obvious at first view, yet we owe such a deference to former times as not to suppose that they acted wholly without consideration."-1 Bl. Com. 70.

Difficulty and Danger of framing General Rules.

"There is, indeed, great truth in the remarks which have been judicially promulgated on this subject by a learned Court. When so many men of great talents and learning are thus found to fail in fixing certain principles, we are forced to conclude that they have failed, not from want of ability, but because the matter was not susceptible of being settled on certain principles. They have attempted to go too far; to define and fix that which cannot in the nature of things be defined and fixed."-Story, on the Conflict of Laws, s. 28.

"I am perfectly well aware of the danger there is in attempting to lay down general propositions, and few judges would more shrink from doing so than I, knowing as I do how a general proposition laid down often hampers judges in dealing with succeeding cases."-In re Moss, Kingsbury v. Walter, [1899] 2 Ch. 314, at p. 319; 68 L. J. Ch. 598, at p. 601, Romer, L. J.

Convenience of General Rules.

"There hardly exists a general rule out of which does not grow, or may be stated to grow, some possible inconvenience from a strict observance of it. Nevertheless, the convenience of having certain fixed rules, which is far above any other consideration, has induced Courts of justice to adopt them, without canvassing every particular inconvenience which ingenuity may suggest as likely to be derived from their application."-Rex v. The Inhabitants of Harringworth (1815), 4 M. & S. 350, at p. 352, Lord Ellenborough.

Restraint by Rules on Courts of Justice.

"There is no Court in England which is entrusted with the power of administering justice without restraint. That

restraint has been imposed from the earliest times; and although instances are constantly occurring where the Courts might profitably be employed in doing simple justice between the parties, unrestrained by precedent, or by any technical rule, the law has wisely considered it inconvenient to confer such power upon those whose duty it is to preside in Courts of justice. The proceedings of all Courts must take a defined course and be administered according to a certain uniform system of law, which, in the general result, is more satisfactory than if a more arbitrary jurisdiction was given to them. Such restrictions have prevailed in all civilized countries, and it is probably more advantageous that it should be so, though at the expense of some occasional injustice. The only Court in this country which is not so fettered is the Supreme Court of the legislature."-Freeman v. Tranah (1852), 12 C. B. 406, at pp. 413, 414; 21 L. J. C. P. 214, at p. 215, Maule, J.

Maxims.

"It is holden for an inconvenience that any of the maxims of the law should be broken, though a private man suffer loss; for that by infringing of a maxim, not only a general prejudice to many, but in the end a public uncertainty and confusion to all would follow."-Co. Litt. 152 b.

The law should not be fettered by maxims.

"I need hardly repeat that I detest the attempt to fetter the law by maxims. They are almost invariably misleading: they are for the most part so large and general in their language that they always include something which really is not intended to be included in them."-Yarmouth v. France (1887), 19 Q. B. D. 647, at p. 653; 57 L. J. Q. B. 7, at p. 9, Lord Esher, M. R.

Established Rules of Legal Interpretation.

Importance of Established Rules of Legal Interpretation. "The rules which were to govern the construction of wills, as well as of all other written instruments, were clearly established, and it is impossible to overrate the importance of adhering to them."--- Abbott v. Middleton (1858), 7 H. L. Cas. 68, at pp. 113, 114; 28 L. J. Ch. 110, at p. 114, Lord Wensleydale.

The rules of legal interpretation are far more certain than the rules of grammatical construction.

"The ground upon which the latter view is sustained is chiefly that the rules of grammatical construction require such an interpretation to be put on the Act of Parliament. Grammar may, no doubt, sometimes render assistance to law by helping to the construction, and thereby to the meaning of a sentence; but grammar, with reference to a living, and therefore a variable language, is perhaps more difficult to deal with than law, and the rules of legal construction are far more certain than the rules of grammatical construction. To resort to grammar where law fails is frequently, I think, to decide ignotum per ignotius'; and it is remarkable that on more than one occasion there has been on the bench a difference of opinion, and for each opinion the rule of grammatical meaning and construction has been relied upon. The very case before your Lordships is an example."-Eastern Counties and London and Blackwall Railway v. Marriage (1860), 9 H. L. C. 32, at p. 62; 31 L. J. Ex. 73, at pp. 85, 86, Pollock, C. B.

Established Rules of Legal Interpretation must be regarded. "I confess that I am not a great admirer of canons of construction. They were framed with a view to general results, but are sometimes productive of injustice by leading to results contrary to the intentions of the parties; but still, in a case to which they clearly applied, we should hold ourselves bound by them." Burchell v. Clark (1876), 2 C. P. D. 88, at p. 93; 46 L. J. C. P. 115, at p. 117, Cockburn, C. J.

"We are bound to have regard to any rules of construction which have been established by the Courts."-Ralph v. Carrick (1879), 11 Ch. D. 873, at p. 878; 48 L. J. Ch. 801, at p. 804, Cotton, L. J.

Rules of interpretation have in modern times become perfectly well settled, and have become much more limited as regards the powers of the Courts, and are binding on all Courts.

"I should like to say a word or two as to the rules which are binding on all Courts in regard to the construction of statutes as well as of all other instruments. Whatever may have been the case in times past, in modern times those rules have become perfectly well settled. They have become much more limited as