"Now the rule

In the same case (at p. 318), Hill, J., says: governing the admissibility of evidence to explain the language of contracts is, that words relating to the transactions of common life are to be taken in their plain, ordinary and popular meaning; but if a contract be made with reference to a subject matter as to which particular words and expressions have by usage acquired a peculiar meaning different from their plain ordinary sense, the parties to such a contract, if they use those words or expressions, must be taken to have used them in their restricted and peculiar signification. And parol evidence is admissible of the usage which affixes that meaning to them. The admissibility of such evidence does not depend upon whether the expression to be construed is ambiguous or unambiguous; but merely upon. whether or not the expression has, with reference to the subjectmatter of the contract, acquired the peculiar meaning." See Boldero v. East India Co., 26 Beav. 316.

"I agree

In the same case (at p. 319), Blackburn, J., says: with my brother Hill that the words of a written commercial contract are to be understood in the sense which they have acquired in the trade to which the contract relates. It is a primâ facie presumption that, if the parties to such a contract use expressions which bear a peculiar meaning in the trade, they use them in that peculiar meaning; which can be ascertained only by parol evidence. I do not think that it is necessary, in order to render such evidence admissible, that there should be any ambiguity on the face of the phrase which has to be construed. . . . That I take to be the true rule of law upon the subject; that when it is shown that a term or phrase in a written contract bears a peculiar meaning in the trade or business to which the contract relates, that meaning is, * primâ facie, to be at- [*59] tributed to it, unless, upon the construction of the whole contract, enough appears, either from express words or by necessary implication, to show that the parties did not intend that meaning to prevail."

In Bowes v. Shand, 2 App. Ca., at pp. 462, 468, Lord Cairns, L. C., says: "The Court it is which, when once it is in possession of the circumstances surrounding the contract, and of any peculiarity of meaning which may be attached by reason of the custom of the trade, to any of the words of that contract, has to place the construction upon the contract. . . Now having submitted to your lordships what I understand to be the natural and literal meaning of this contract, I ask how is that natural meaning to be got rid of? My Lords, I conceive in this way, and only

evidence of usage, such evidence will not be heard. Ins. Co. v. Wright, 1 Wall. 456; Barbour v. Lambert, 28 Ala. 710; Whitmore v. Steamboat, 20 Mo. 513.

The rule is one which has no application when the meaning is clear. Sleight v. Rhinelander, 1 Johns. 192; Gross v. Criss, 3 Grat. (Va.) 262.

as the subject of disposition, and to the circumstances of the testator, and of his family and affairs, for the purpose of enabling the Court to identify the person or thing intended by the testator, or to determine the quantity of interest he has given by his will.

"The same (it is conceived) is true of every other disputed point, respecting which it can be shown that a knowledge of extrinsic facts can, in any way, be made ancillary to the right interpretation of a testator's words."

"Proposition 6. Where the words of a will, aided by evidence of the material facts of the case, are insufficient to determine the testator's meaning, no evidence will be admissible to prove what the testator intended, and the will (except in certain special cases) will be void for uncertainty."

[ *65 ] * Rule 13.-Meaning of word defined by Act of Parliament.-Where the meaning of a word has been defined by an Act of Parliament, no extrinsic evidence is admissible to show that the parties to the deed used it in any other meaning.

Examples. In Doe d. Spicer v. Lea, 11 East, 312, evidence was not admitted to show that by the words "the feast of St. Michael" was meant Old Michaelmas Day, though as was pointed out by the Court intrinsic evidence might have been used for that purpose.

In The Master and Brethren of St. Cross v. Lord Howard de Walden, 6 T. R. 338, it was held that the reservation in a lease of so many quarters of corn must mean quarters as defined by the Act of Parliament, and not customary quarters. See 1 Smith's Leading Cases, 8th ed. 618; Acre; see O'Donnell v. O'Donnell, 1 L. R. (Ir.) 284.

*CHAPTER V.

[*66]

ANCIENT DOCUMENTS.

Contemporaneous Interpretation. Evidence of Usage.

Difficulty produced by lapse of time in obtaining cvidence of meanings of words.-The longer the period that elapses between the time of writing and the time of interpreting a document, the greater is the difficulty in obtaining evidence admissible under Rule 11 as to the meanings of the words employed: and if the document is very ancient, the difficulty may be insuperable. If this be the case, we can sometimes arrive at those meanings with a fair degree of certainty by ascertaining what was the interpretation placed on the document immediately after its execution. The probability is great that at that time there were some persons to whose interest it was to insist upon the document being properly construed, and the fact that a particular interpretation was then placed on it affords a great probability of the correctness of such particular interpretation: and this probability is increased if we find that during a long course of years such interpretation has been acquiesced in.

Rule 14. Contemporaneous interpretation.-Evidence is admissible as to the interpretation placed upon an ancient document by persons who lived at, or at a time not remote from, the time of the writing of the document.25

The interpretation placed upon a document by persons who lived at the time of writing is usually called "contemporaneous" interpretation, and * some times though incorrectly, [* 67 ] "the interpretation placed upon it by contemporaneous usage:" I say "incorrectly," because usage implies duration.

25 Connery v. Brooke, 73 Pa. St. 80; Messer v. Oestreich, 52 Wis. 684; Stanley v. Green, 12 Cal. 158; Putzet v. Van Brunt, 40 N. Y. Sup. Ct. 501. The law will not declare a deed void for uncertainty until it has been examined with all the light which contemporaneous facts may furnish. Staley v. Green, 12 Cal. 158.

A deed is to be construed with reference to the actual state of the property at the time of execution. Richardson v. Palmer, 38 N. H. 218; Pollard v. Maddox, 28 Ala. 525; Dunklee v. Wilton R. Co., 24 N. H. 489; Abbott v. Abbott, 51 Me. 581; Comm. v. Roxbury, 9 Gray, 493.

66

136.

Contemporanea expositio est fortissima in lege," 2nd Inst.

"In the construction of ancient grants and deeds, there is no better way of construing them than by usage, and contemporanea expositio is the best way to go by;" per Lord Hardwicke, C., Att.-Gen. v. Parker, 3 Atk. 577.

Evidence of the acts of the owners of allotments under an Inclosure Act admitted to explain an ambiguous award:-"If the road was improperly set out at first, there were persons enough interested in contesting it, who would not have acquiesced so long;" per Cur., Wadley v. Bayliss, 5 Taunt. 752.

"One of the most settled rules of law for the construction of ambiguities in ancient instruments is, that you may resort to contemporaneous usage to ascertain the meaning of the deed; tell me what you have done under such a deed, and I will tell you what that deed means; " per Sugden, C., Att.-Gen. v. Drummond, 1 Dr. & War. 368.

"Contemporaneous usage is, indeed, a strong ground for the interpretation of doubtful words or expressions; " per Lord Cottenham, Drummond v. Att.-Gen., 2 H. L. C. 861.

"In construing an ancient instrument, you may look to the usage to see in what sense the words were used at that time;" per Lord Campbell, ib. 863.

Ambiguity in word "usage."-It will be observed that there is an ambiguity in the word "usage" as employed in these judgments; it may mean either usage under the instrument, or the ordinary usage of society, which at the date of the deed affixed to the words in it a meaning different from that which they now bear; but a comparison of the judgments with those of Sugden, C., in the same case, ubi supra, will shew that the word was used in the former meaning.

[ * 68 ]

* The manner in which the first trustee of a fund, who was the donor of it, acted in the distribution of it, was held to be strong evidence of intention, and was so treated by the Court in construing the trust deed; Att.-Gen. v. Brazenose College, 2 Cl. & Fin. 295 (at p. 317).

Evidence of "the early and contemporaneous application of the funds of the charity itself by the original trustees under the deed" was held by Tindal, C. J., to be admissible to construe the deed; Shore v. Wilson, 9 Cl. & Fin. 569.

Contemporanea expositio applied to Statutes.-It is perhaps worth noticing that the rule of contemporanea expositio is often applied to the interpretation of Statutes; Sharpley v. Overseers of Mablethorpe, 3 El. & Bl. 917; Corporation of Newcastle v. Att. Gen., 12 Cl. & Fin. at p. 419; R. v Scot, 3 T. R. 602; Sheppard v. Gosnold, Vaugh. 169; Montrose Peerage Case, 1 Macq. H. of L. 401; Dunbar (Corporation) v. Roxburghe (Duchess of), 3 Cl. & Fin. 335; The Queen v. Archbishop of Canterbury, 11 Q.

B. 581.-Debates in Parliament.-Following the ordinary rule, the Courts are not influenced in the interpretation of a statute by anything that occurred in Parliament during the passing of the statute; Gorham v. Bishop of Exeter, 5 Ex. 667; Barbat v. Allen, 7 Ex. 616; Richards v. McBride, 8 Q. B. D. 119, 123. And, if the words of the Statute are clear, an interpretation which contradicts them cannot be supported on the ground of usage; Sheppard v. Gosnold, Vangh. 170; Dunbar (Corporation of) v. Duchess of Roxburghe, 3 Cl. & F. 335; The Queen v. Archbishop of Canterbury, 11 Q. B. 581; Att.-Gen. v. Rochester (Corporation of), 5 De G. M. & G. 797, per Turner, L. J., at 822.

Rule 15.-Evidence of usage.-In interpreting an ancient document, evidence of the usage under it is admissible to explain any obscurity or ambiguity, but not to contradict its clear and unambiguous terms.

"Usage "explained.-By usage is meant the acts habitually done with reference to some particular matter during a •·long * period; and when such acts have been done by [* 69] persons purporting to act under a document, they afford the best possible evidence as to the interpretation which those persons placed upon it. Occasional deviations from the regular course will not negative the existence of a consistent usage, for "it follows almost necessarily from the imperfection and irregularity of human nature that a uniform course is not preserved during a long period." A little change is made from time to time through ignorance or other causes; and when by the lapse of years the evidence is lost which would explain such irregularities, we must not too hastily assume that the received construction is therefore incorrect; see The Queen v. Archdall, 8 Ad. & El. 288.

"Ancient charters, whether they be before time of memory, or after, ought to be construed as the law was taken when the charter was made, and according to ancient allowance. . . . And when any claimed before the Justices in Eyre any franchises by an ancient charter, though it had express words for the franchises claimed; or if the words were general, and a continual possession pleaded of the franchises claimed, or if the claim was by old and obscure words, and the party in pleading, expounding them to the court, and averring continual possession according to that exposition; the entry was ever Inquiratur super possessionem et usum, &c., which I have observed in divers records of those