3

Ancient grants are to be expounded as the law was at the time of making them.' Modern methods of conveyancing are not to be construed to affect ancient notions of equity. So the state of the country, and of the manners of society, is to be regarded, in expounding contracts. Thus, in Adams v. Frothingham, where a vote of the town of Newbury came in question, "granting W. Noyes a piece of land below high water mark, to set a shop upon, and not exceeding forty feet in the front," the question was whether the lot should extend back to low water mark, or only to a distance sufficient to accommodate a shop. The vote was passed in 1680. The court held that the lot extended to low water mark; though such words, in a recent grant, in times of precision and accuracy, and when flats have become valuable, might receive a different construction. It was also supposed, from the state of the times and the country, that the proprietors of Newbury desired to settle the township, and to afford advantageous situations, on the river, to the settlers. The court also relied, in part, upon the fact that those, who occupied under Noyes's grant, claimed and used the flats, as they needed them, for nearly a century, without complaint from the grantors; and thus a practical construction, by both parties, had been given to the grant, sufficient to remove any doubts that might have arisen from its terms. This practical construction of the parties, immediately after the grant, is what is generally called contemporaneous exposition-which is said to be optima et fortissima in lege.*

Where, in a deed given in 1694, the grantor gave the privilege of cutting timber, for the purpose of building on

'Co. Lit. 8 b.; Amb. 238.

2 See remarks of Spencer, J. 16 Johns. 23.

33 Mass. R. 360.

4 See Branch's Maxims, (Hening's ed.) 30; Codman v. Winslow, 10 Mass. R. 149.

the premises, from his woods, it was held that it might be shown that the grantee and his heirs, with the knowledge. of the grantor and his heirs, had cut wood for the purpose of erecting fences upon the premises-in order to evince the intention of the parties to apply the word "building" to the making of fences, as well as to the erection of houses, &c.1

It is an established rule, that where the language of ancient instruments is obscure, or their construction doubtful, usage may be resorted to, as it is the best practical exposition of the parties' meaning. In Attorney General v. Parker, lord Hardwicke said, "in the construction of ancient grants and deeds, there is no better way of construing them than by usage, and contemporaneo expositio is the best way to go by."

2

In Cooke v. Booth,3 on a demise for the lives of A. B. and C. it was covenanted that if A. (the lessee,) his heirs, &c., should choose, upon the death of B. and C., or either of them, to surrender and take a new lease, and add a new life, in lieu of the life so dying, the lessor, his heirs, &c., would grant a new lease for the lives of the substituted persons, under the same rent and covenants as in the original lease. There were several renewals of the lease, and in each instance there was a similar covenant for renewal. The court held that the parties had put their own construction on the covenant, and that it was therefore to be regarded as a covenant for perpetual renewal. But this case has been impeached upon all occasions, and is overruled by the judgment of the court of exchequer chamber, in Iggulden v.

1 Livingston v. Ten Broeck, 16 Johns. 14. S. P. Jackson v. Wood, 13 Johns. 346.

23 Atk. 577. See also Withnell v. Gartham, 6 D. & E. 388; Weld v、 Hornby, 7 East, 199, per Lord Ellenborough.

3 Cowp. 819.

May.' The decision in the exchequer chamber proceeded on the ground that the covenant in the lease was not intended for a covenant of perpetual renewal; that the words were not such as to warrant that construction; in short, that there was no room left for doubt, on the face of the instrument, what was the intention of the parties. Lord Ellenborough (7 East, 242,) said, "if the continued grant of successive leases, and not the grant of one only, were intended, it is natural to expect that words should have been used distinctly marking a right of repeated renewal, instead of expressions more immediately applicable to the case of a single additional lease." And this is the settled and only proper doctrine, namely, that usage, or contemporaneous exposition is not to be called in aid, when the language of a contract is clear and precise, but only where it is equivocal or doubtful. This rule of construction applies to ancient charters granted to corporations, as well as to grants to individuals. Charters are contracts between the crown, or the state, and other persons, whether corporate or unincorrate, to whom they are granted.3

In construing ancient statutes, the court constantly resort to contemporaneous exposition. Indeed, most of the rules, which are adopted for the construction of contracts, are applicable to the construction of statutes; and for the same

1 2 New Rep. 449; S. C. in B. R. 7 East, 237, and before Lord Eldon, in Chancery, 9 Ves. 325. See also Tritton v. Foote, 2 Cox. 174; Rubery v. Jervoise, 1 D. & E. 229.

2 Per Spencer, J. 16 Johns. 23; Peake on Evid (2d ed.) 119; 3 Stark. Ev. 1031; 1 Phil. Ev. (1st American ed.) 419, 420; Cortelyou v. Van Brundt, 2 Johns. 357.

3 See Blankley v. Winstanley, 3 D. & E. 279; The King v. Bellringer, 4 D. & E. 810; The King v. Osbourne, 4 East, 327; Rex v. Varlo, Cowp. 250; 3 D. & E. 288, note; Mayor, &c. of London v. Long, 1 Campb. 22; 2 Ev. Poth. (Philad. ed.) 189, et seq.

4 McKeen v. Delancey, 5 Cranch, 22; Sheppard v. Gould, Vaugh. 169; Rogers v. Goodwin, 2 Mass. R. 475; Packard v. Richardson, 17 Mass. R. 144 ; Stuart v. Laird, 1 Cranch, 299; 1 Kent Com. (1st ed.) 434.

reason, namely, that they equally tend to give effect to the intention of the makers.'

8. When terms are doubtful or ambiguous, they are to be taken most strongly against the person engaging. Verba chartarum fortius accipiuntur contra proferentem. "A grant shall be construed most strongly against the grantor," &c." This rule, however, applied only to deeds poll, because the words of an indenture were regarded as the words of each. party alike.'

The rule of the civil law is the same in terms, but directly the reverse in its meaning and operation. By the form of contracting, in that law, the words of a stipulation were those of the party to whom the engagement was made. The party promising only assented to the question proposed by the party stipulating.*

There seems to be little of good sense, or of principle, in the maxim, as it originally stood, either in the common or civil law. The assent of two or more minds is necessary to constitute a contract; and there is great force in the argument of serjeant Catline, in Plowden, 140, namely,— "what difference is there when the lessor saith, 'I will have twenty shillings yearly for the land,' and the lessee agrees to it, and when the lessee says, 'I will give you twenty shillings yearly for the land,' and the lessor agrees to it? Certainly, there is no difference at all. For, in contracts, it is not material which of the parties speaks the words, if the other agrees to them; for the agreement of the minds of the parties, is the only thing the law respects in contracts." The rule, however, did exist, and was up

Bac. Ab. Statute, I; Com. Dig. Parliament, R. 10-29; Bigelow's Digest, Statute, F.

2 Shep. Touch. 87, 88; Plowd. 171; Co. Lit. 197 a.

3 Plowd. 134; 2 Bl. Com. 384.

4 Heinec. Pand. Pars vii, tit. 1; 1 Domat, 37, § 13-15; 1 Ev. Poth. (Philad, ed.) 59, note.

held by the notion, that the terms of the agreement were to be regarded as the words rather of the promisor, by the common law, and of the promisee, by the civil law.

In the common law, this rule of construction, at the present day, has a very limited operation, and amounts, in effect, to nothing more than this, namely, that in a case of doubtful or ambiguous terms, the party promising shall be held to perform so much as to make the terms of his engagement operative, according to the spirit of those terms, ut res magis valeat quam pereat. The rule was always subject to all the preceding rules that have been mentioned. They were first to be applied, and this resorted to, only when they all failed, which would seldom happen. "This being a rule of some strictness and rigor," says lord Bacon, "doth not as it were its office, but in the absence of other rules, which are of some equity and humanity." And it never was applied in cases where the contract contained anything in its nature odious, or unequally burdensome; as, in case of a penalty, &c. Nor where it would operate as a wrong upon third persons. Thus, although where the owner of an estate in fee makes a lease for life, without expressing for whose life, it shall be intended for the life of the lessee, as most favorable to him; yet it is otherwise, if such lease be given by a tenant in tail; for if it were to be construed for the life of the lessee, it might injure the reversioner.3

1

In case of a grant, &c., by the king or government, the rule of construction is reversed, and the grant is taken most beneficially for the grantor.*

Subject to these modifying remarks, this rule of construing an agreement most strongly against the promisor, &c.

1 See 1 Powell on Con. 395; 1 Ev. Poth. (Philad. ed.) 52.

2 1 Powell on Con. 397, et seq.

3 Co. Lit. 42. 183.

42 Bl. Com. 351; 2 Woodeson, 307; Jackson v. Reeves, 3 Caines, 296,