patens is never holpen by averment, and the reason is, because the law will not couple and mingle matter of specialty, which is of the higher account, with matter of averment, which is of inferior account in law; for that were to make all deeds hollow, and subject to averments, and so in effect, that to pass without deed, which the law appointeth shall not pass but by deed. Therefore if a man give land to I. D., et I. S. et hæredibus, and do not limit to whether of their heirs, it shall not be supplied by averment to whether of them the intention was the inheritance should be limited. So if a man give land in tail, though it be by will, the remainder in tail, and add a proviso in this manner: Provided that if he, or they, or any of them do any, &c. according to the usual clauses of perpetuities, it cannot be averred upon the ambiguities of the reference of this clause, that the intent of the devisor was, that the restraint should go only to him in the remainder, and the heirs of his body; and that the tenant in tail in possession was meant to be at large. Of these infinite cases might be put, for it holdeth generally that all ambiguity of words by matter within the deed, and not out of the deed, shall be holpen by construction, or in some case by election, but never by averment, but rather shall make the deed void for uncertainty. But if it be ambiguitas latens, then otherwise it is: as if I grant my manor of S. to I. F. and his heirs, here appeareth no ambiguity at all; but if the truth be, that I have the manors both of South S. and North S. this ambiguity is matter in fact, and therefore it shall be holpen by averment, whether of them was that the party intended should pass. So if I set forth my land by quantity, then it shall be supplied by election, and not averment. As if I grant ten acres of wood in Sale where I have 100 acres, whether I say it in my deed or no, that I grant out of my 100 acres, yet here shall be an election in the grantee, which ten he will take. And the

reason is plain, for the presumption of the law is, where the thing is only nominated by quantity, that the parties had indifferent intentions which should be taken, and there being no cause to help the uncertainty by intention, it shall be holpen by election. But in the former case the difference holdeth, where it is expressed and where not; for if I recite, Whereas I am seised of the manor of North S. and South S. I lease unto you unum manerium de S. there it is clearly an election. So if I recite, Where I have two tenements in St. Dunstan's, I lease unto you unum tenementum, there it is an election, not averment of intention, except the intent were of an election, which may be specially averred. Another sort of ambiguitas latens is correlative unto these: for this ambiguity spoken of before, is when one name and appellation doth denominate divers things, and the second, when the same thing is called by divers names. As if I give lands to Christ Church, in Oxford, and the name of the corporation is Ecclesia Christi in Universitate Oxford, this shall be holpen by averment, because there appears no ambiguity in the words: for this variance is matter in fact, but the averment shall not be of intention, because it doth stand with the words. For in the case of equivocation the general intent includes both the special, and therefore stands with the words but so it is not in variance, and therefore the averment must be of matter, that do endure quantity, and not intention. As to say of the precinct of Oxford, and of the University of Oxford, is one and the same, and not to say that the intention of the parties was, that the grant should be to Christ Church in that university of Oxford." A host of cases on this subject, with numerous qualifications and distinctions, are to be found in the books (1). We will merely add

(1) See the cases collected in in the Interpretation of Wills, 3rd 2 Phill. Ev. chap. 8, 10th Ed.; Ed. and Wigram's Extrinsic Evidence

the following important observations from the work of Vice-Chancellor Wigram (m). "A written instrument Difference beis not ambiguous because an ignorant and uninformed tween ambiguity and unintelligiperson is unable to interpret it. It is ambiguous only, bility. if found to be of uncertain meaning when persons of competent skill and information are unable to do so. Words cannot be ambiguous, because they are unintelligible to a man who cannot read; nor can they be ambiguous, merely because the court which is called upon to explain them may be ignorant of a particular fact, art, or science, which was familiar to the person who used the words, and a knowledge of which is therefore necessary to a right understanding of the words he has used. If this be not a just conclusion, it must follow-that the question, whether a will is ambiguous, might be dependant-not upon the propriety of the language the testator has used, but upon the degree of knowledge, general or even local, which a particular judge might happen to possess; nay, the technical precision and accuracy of a scientific man might occasion his intestacy, a proposition too absurd for an



** Again, a distinction must be taken And between between inaccuracy and ambiguity of language. Lan- inaccuracy and ambiguity of guage may be inaccurate without being ambiguous, and language. it may be ambiguous although perfectly accurate. If, for instance, a testator having one leasehold house in a given place, and no other house, were to devise his freehold house there to A. B., the description, though inaccurate, would occasion no ambiguity. If, however, a testator were to devise an estate to John Baker, of Dale, the son of Thomas, and there were two persons to whom the entire description accurately applied, this description, though accurate, would be ambiguous. It is obvious, therefore, that the whole of that class of cases in which an inaccurate description is found to be

(m) Wigram, Extrinsic Evidence in the Interpretation of Wills, §200, et seq. 3rd Ed.

Extrinsic evidence admis

written instru

or covin.

sufficient merely by the rejection of words of surplusage
are cases in which no ambiguity really exists. The
meaning is certain, notwithstanding the inaccuracy of
the testator's language."

§ 220. There are some other exceptions to the rule sible to impeach rejecting extrinsic evidence to affect written instruments. And foremost among them come those cases where it is ments for duress, menace, fraud, sought to impeach written instruments as having been obtained by duress, menace, fraud, or covin. These latter, as is well known, vitiate all acts, however solemu, or even judicial (n). "Dolus et fraus nemini patrocinentur (o)"-" Jus et fraus nunquam cohabitant (p)”-“Qui fraudem fit frustrà agit (q)”—and the rejection of parol or other extrinsic proof in such cases would be applying the rule in question to a purpose for which it was never meant, and render it a protection to the practices which the law intended to suppress. But the party to an instrument is estopped from setting up his own fraud to avoid the instrument (r), as also are those claiming under him. A like rule holds in the case of menace or duress (s). These principles are found in the laws of other countries as well as our own (t),—

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Quam necis artifices
(n) 7 Hen. W. 15, pl. 22,
vers. fin.; 3 Co. 78 a; 2 Phill.
Ev. 25 and 360, 10th Ed. By
the judges in the Duchess of
Kingston's case, 11 St. Tr. 262;
'per Lord Hardwicke in Brown-
sword v. Edwards, 2 Ves. sen.

(0) 14 Hen. VIII. 8, A.; 39
Hen. VI. 50, pl. 15; 1 Keb. 546.
(p) 10 Co. 45 a.

(9) 2 Rol. 17.

(r) 2 Phill. Ev. 360, 10th Ed. See Part 3, bk. 2, ch. 6.


arte perire suâ (u).”
Rynn & Campbell Whits
(Bracton, lib. 2/c. 5, fol.
15 b; Dyer, 143 b, pl. 56;
Plowd. 19; Shepp. Touchst. 60,
61; Atlee v. Backhouse, 3 M. &
W. 650, per Parke, B.

(t) Dig. lib. 4, tit. 2; Cod.
lib. 8, tit. 54, 1. 27; Lancel.
Inst. Jur. Canon. lib. 2, tit. 25,
§13; Domat, Lois Civiles, Part.
1, liv. 3, tit. 6, sect. 2, § 5;
Code Civil, Liv. 3, tit. 3, chap. 6,
sect. 3, § 2, art. 1353; Bonnier,
Traité des Preuves, § 643, &c.

(u) 1 H. Bl. 585.

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quid consti

modo dis-

§ 221. As connected with this may be noticed the Principle maxim of law, "Nihil tam conveniens est naturali æquitati unumquodque dissolvi eo ligamine quo ligatum tuitur eodem est (x)." Quomodo quid constituitur," says one of our old books, "eodem modo dissolvitur; record per record, escript per escript (y), parliament per parliament, parol per parol (z)." Thus things that lie in grant, as they must be created by deed, cannot be surrendered without deed, &c. (a). But the performance of a condition in an instrument under seal may be proved by inferior evidence (b), for this does not invalidate the instrument, but sets it up. Thus payment of a bond may be proved by parol (c), &c.

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§ 222. Another exception is to be found in the ad- Evidence of missibility of the evidence of usage; "Optimus interpres written instruusage to explain rerum usus” (d). "Consuetudo loci est observanda”(e). ments.

Magister rerum usus" (ƒ). The general principles on this subject are thus clearly laid down in a work of authority. "Evidence of usage has been admitted, in aid of the construction of written instruments. This evidence has been received for explaining or filling up terms used in commercial contracts, policies of insurance, negotiable instruments, and other writings of a similar kind,-when the language, though well understood by the

(r) 2 Inst. 360, 573; 2 Co. 53 a; 4 Id. 57 b; 5 Id. 26 a; 6 Id. 43 b; 3 Scott, N. R. 215; Dig. lib. 50, tit. 17, l. 35.

(y) By escript here must be understood a writing under seal. The word is often used in our old books in this sense.

(z) Jenk. Cent. 1, Casus 40. See Wood v. Leadbitter, 13 M. & W. 836.

(a) Wing. Max. 69; Co. Litt.

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