380. 35 words of the grantor only, and fhall be taken moft (m) Co. Lit. ftrongly against him (). And, in general, this 42. 134. rule, being a rule of fome ftri&tnefs and rigour, is (") 2. Bl.Com. the last to be reforted to (a); for Courts of Juftice (o) By LORD will endeavour to conftrue the words of parties fo as MANSFIELD, to effectuate their deeds, and not to deftroy them; Cowp. Rep. more especially when ambiguous words, abflracted-2. Bl. Com. ly taken, may admit of either meaning (0): 725. See alfo' 379. XIV. AMBIGUUM PLACITUM INTERPRETAN- (P) 1. Co. Lit.' Plowd. 46. This Maxim proceeds upon the prefumption, that 303. b. every man will make the beft of his own cafe (p). Cro. Car. 50. Therefore, in an action of debt upon a bond againft 03. 202. an executor, if he' pleads a recovery in debt and 10. Co. 59. judgment thereon, and that he had not more aflets than Strange, 230. would fatisfy that judgment, without faying that it (9)1. Freeman, was on a fpecialty, it fhall be intended a recovery on 215. a fimple contract debt (4). દ XV. " AMBIGUITAS VERBORUM LATENS VERI FICATIONE SUPPLETUR." 10. Mod. 143. Vaughan, 94 Verbal ambiguities are of two kinds, viz. Ambi- See Bacon's' guitas Patens; which is when the ambiguity is ap- Law Trafts,' parent upon the face of the deed itself: and, Am- 99. 201. biguitas Laters; which is where the ambiguity is not apparent from the mere infpection of the deed, but is brought to light by the application of fome extrinfic and collateral matter. The first kind can never be explained by averment; for the law will not fuffer a matter of fpecialty to be coupled with matter of averment; as thereby all inftruments might be rendered hollow, and that made to pafs by averment, which the law fays fhall only pafs by deed. On a grant, therefore, to two perfons and their heirs; the omiffion, to which of their heirs the estate was intended to be fimited, cannot be fupplied by averment. An infinite number of cafes might be put to illuftrate this D 2 Maxim; (*) Co.Lit a 3396. Maxim; for it holdeth generally, that all verbal ambiguity upon the face of deeds fhall never be helped by averment; but that, if they cannot be made good by construction, or, in fome cafes, by election, the deed fhall be deemed void for uncertainty. The fecond kind, or Ambiguitas Latens, may be helped by averment. Therefore, if a perfon grants the manor of S. to one and his heirs, and the truth be, that he had the manors both of North S. and South S. this ambiguity is matter of fact; and it may be averred which of them it was that the grantor intended fhould pafs. So alfo, if a man grants ten acres of wood in Sale, in which place he has one hundred acres, the grantee may elect which ten he will take and the reafon is plain; for the prefumption of law is, where the thing is only nominated by quantity, that the party had indifferent intentions, which thould be taken; and there being no cause to help the uncertainty by intention, it fhall be helped by election. XVI. APICES JURIS NON SUNT JURA.' The Law of England refpecteth the effect and fubftance of the matter, and not every nicety of form or circumstances (r); and therefore, Sir Edward Coke commends the Statute of Q. Elizabeth, which provides, that after demurrer the Judges fhall give judgment, without regarding any imperfection, defect, or want of form in the pleadings: an excellent and a profitable law, concurring with the wifdom and judgement of ancient and modern times, that have ditallowed nice and Curious exceptions, tending to the overthrow or de1) 4. Co.,. lay of justice (/); for, Nimia fubtilitas in jure repro(t) Co-Lit. 54. batur (t); Qui hæret litera hæret in cortice (u); and, 2.Inft-495- Summum jus eft fumma injuria (x). Thus, where a man who was feifed of five acres of land, to the whole of which there was common appurtenant, and aliened one of the acres only; it was held, that the right or common was not thereby extinguilhed, but that an apportionment fhould be made according to the 363. (x) Co. Lit. 304. b. 6. Co. 61. 10. Co. 1:5. * Co. 46 b. ribirange,253° feveral feveral quantities of land; for otherwife a great inconvenience and mifchief would enfue; as by this means all the right of common throughout the (5) By Lord kingdom might in the courfe of time be extin- Hobart, guished (y). Noy's Rep.30. The law compels no man to impoffible things; Lex non cogit ad impoffibilia; and, Impoffibile eft quod naturæ rei repugnat. Therefore, where a tenant holds of his lord by the rofe, or by a bufhel of rofes, to be paid at the feast of St. John the Baptift; if fuch tenant die in the winter, the lord cannot diftrain until the time that rofes, by the courfe of the year, may have their growth; for they are frutus fugaces, which cannot be kept, and therefore impoffible to be delivered until the feafon returns; and the law (z) Co. Lit.02 will take notice of the order and caufe of nature; 2. Bl. Comm.. Lex fpectat naturæ ordinem (z). So alfo, if the condition of a bond be impoffible at the time of making it, the law renders the condition void, and the bond fhall ftand fingle and unconditioned. XVIII. " A VERBIS LEGIS NON EST RECE DENDUM." 340. Therefore it is faid, that Judges ought not to make any conftruction against the express letter of a ftatute; for nothing can fo well exprefs the meaning of the legiflature as their own direct words; for, Index animi fermo; and it would be dangerous to give fcope to make a conftruction in any cafe against the exprefs words, when the meaning doth not appear contrary, and when no inconvenience will thereupon follow (a). But this maxim more peculiarly ap- (a) 5.Co. 6. plies to the conftruction of penal statutes, which muft 115. b. be conftrued strictly. Thus, where the ftatute 1. Ed- 706. ward 6. c. 12. having enacted, that thofe who are convicted of ftealing borfes fhould not have the beD 3 nefit (*) Douglas nefit of clergy, the Judges conceived that this did not extend to him that thould fteal but one horfe, So alfo, when the 14. Geo. 2. c. 6. made the ftealing of fheep and other cattle a capital felony, the Act was held to extend to nothing but theep, until, by 15 Geo, 2. c. 14, the words other cattle were explained to mean bulls, cows, oxen, ficers, bullocks, (6) 1.Bl.Com. heifers, calves, and lambs, by name (b). So alfo, the 9. Geo. 1. c. 22. and 27. Geo, 2. c. 15. which makes the fending a threatening letter felony, was held not to extend to a perfon delivering fuch a let: ter; for although the Legislature probably meant (c)Hammond's to punith the perfon delivering fuch a letter, yet as Cafe, Leach's they had not fo expreffed themfelves, the Court did not conceive itfelf authorized to recede from the words of the ftatute), Crown Lawy p. 387. (d) Sce Bacon's Law Tracts, p. 61, For the law conftrueth neither penal laws nor penal facts by intendment, but confidereth the offence in 62.for illuftra degree, as it ftood at the time when it was commitzions of this ted; fiimatio præteriti delicti ex poftremo facto quam crefcit (d). Maxim. $54. (f) Fortescue, c. 40. nun XIX. (4 BASTARDUS NULLIUS EST FILIUS; AUT A Baftard is one that is not only begotten, but born, out of lawful matrimony; for if he is born only a day after marriage, he is a legitimate child (e) 1. Bl.Com. (e). He is only entitled to fuch rights as he himfelf thall acquire; for he can inherit nothing, being looked upon as the fon of nobody (f). Yet he may gain a firname by reputation, though he has ) Co. Lit. 3, none by inheritance (g). All other children have their primary fettlement in their father's parifh, but a baftard in the parith where he is born; for he hath (b) Salk. 427. no father (b). The incapacity of a baftard confifts principally in his difability of being heir to any one; neither can he have heirs but of his own body; for, being nullius filius, he is therefore of kin to nobody, and has no ancestor from whom any inheritable blood can be derived. A baftard may be legitimated by Act of Parliament. If a husband be out of England, gene (i) Co. Lit. 244. Strange, 925. England, or, as the law expreffes it, extra quatuor maria, for above nine months, fo that no access to his wife can be prefumed, her iffue during that period fhall be baftard (i); but generally, during the coverture, accefs of the hufband thall be prefumed, (4) Salk. 123. unless the contrary can be fhewn (k); for the 3.P.Wms.276. ral rule is, præfumitur pro legitimatione (1). In di- (4) 5. Co. 9. h. vorce à menfå et thoro, if the wife breeds children, Semper præfumi • they are baftards. So alfo, if there is an apparent matione puerotur pro legiti impoffibility of procreation on the part of the huf-rum. band; as if he be only eight years old, or the like. : Co 98. So alfo, in divorce à vinculo matrimonii, all the iffue (m) Co. Lt. born during the coverture are baftards (m). XX. " BENIGNIOR SENTENTIA IN VERBIS GENE- Wood Inft.65. 244 Therefore in an action for these words against a Juftice of the Peace, "Mr. Stanhope hath but one manor, and that he hath gotten by fwearing and "forfwearing," it was held they were not actionable, because, among other reasons, he may be forfworn in common converfation; in which cafe the forfwearing would not be perjury (n); for, Senfus ver- (*) 4. Co. 15. borum eft duplex, fcilicet mitis et afper; et verba femper b. accipienda funt in mitiore fenfu (o.) So alfo, in an (0) 4. Co 13• action for faying that fuch a perfon "hath burnt my a. barn," it fhall be taken civiliter and not criminaliter by intendment that the barn was full of corn; in which case alone the words would be actionable (p); (P) 4. Co. 20. for an innuendo, although it may explain or apply, cannot add to or change the fenfe (q). But it is (9) Salk. 5×3. faid by Mr. Juftice Buller, that the old Maxim, that words fhall be taken in mitiori fenfu, is now exploded; and that the rule at this time is, that they Thall be taken in the fame fenfe as they would be understood by thofe who hear or read them (r.) The(r) Bull. N. P. old rule, however, appears ftill in fome meafure to 4 prevail; for in an action for thefe words, "I am "thoroughly convinced that you are guilty (innuendo "of the death of), and rather than you should go "without a hangman, I will hang you;" it was D 4 held |