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has still some operation in practice, though a very limited
In Adams v. Frothingham,' and in Worthington v. Hylyer,' the court would have adopted this rule (as they declared) in order to give the party his full justice, if other rules had not been found sufficient for the purpose. It is said in the books that under this rule falls that class of cases, in which the masculine is held to include both sexes, and the indefinite is construed to be universal. All these cases, however, seem fairly to come under some of the preceding rules of construction, as the fourth, respecting the subject matter, or the sixth, by which the intention is to be preferred to the expression, when the words do not express the evident intention.
Where a release of all lands, &c., belonging, used, occupied and enjoyed, or deemed, taken or accepted as part of clock mills, was given to the plaintiff; it was held that leasehold lands, within the description, passed by the release, though a release was a conveyance adapted to freehold estates—an assignment being the proper conveyance of a term for years. The court held that the rule applied, in this case, that the deed should be construed most strongly against the grantor. Otherwise the defendant would have been enabled, after a long interval of time, to invalidate his own conveyance, against the plaintiff's possession, and for the purpose of obtaining unjust possession for himself.
On the same principle, exceptions or reservations in a deed shall be taken most favorably to the grantee, and if not set down or described with certainty, the grantee shall have the benefit that may arise from such defect.So where a deed may enure several ways, the grantee shall have his
1 3 Mass. R. 361.
election which way to take it.' And where an instrument was so drawn that it could not be ascertained whether it was intended for a bill of exchange or a promissory note, it was held that the payee might regard and treat it, as the one or the other, at his election.”
A lease for seven, fourteen, or twenty-one years was given. The question arose, at whose option it was, at which of these periods the lease should determine. It was decided that it was at the option of the lessee, on the principle that the terms of the lease were to be construed most strongly against the lessor; or, in other words, most favorably to the lessee.
In many instances of this nature, it is obvious that the interest of each party is the same. But where the lessor wishes to determine the lease, and the lessee wishes to hold on, the legal presumption, and perhaps the actual fact, would be that it is for the advantage of the lessor to determine it; and in such a case, the principle of this eighth rule is clearly applicable. But after all it is perhaps rather a rule of law and equity, than of construction of contracts, by which the lessee's option is secured to him.
In matters of election, in alternative contracts, it is the settled doctrine that the option is in the party who is to perform one of two or more acts. Such also is the doctrine of the civil law; and Pothier states it as a consequence of his seventh rule of interpretation, namely, that "in case of doubt, a clause ought to be interpreted against the person
| Hayward's case, 2 Co. 35.
3 Dann o. Spurrier, 3 Bos. & Pul. 399, 442; S. C. 7 Ves. 231. S. P. Doe o. Dixon, 9 East, 15. There were obiter dicta, in a former case, (Goodright 0. Richardson, 3 D. & E. 462,) that either party might, in such case, determine the lease.
4 Layton o. Pearce, 1 Doug. 15; Bac. Ab. Election, B; Com. Dig. Election, A; 2 Ev. Poth. (Philad. ed.) 46, et seq. Smith o. Sanborn, 11 Johns. 59.
who stipulates anything, and in discharge of the person who contracts the obligation."
On the same principle-if by the contract an election is given, or reserved, of two several things, he who is the first agent, and who ought to do the first act, shall have the election. And this will be the promisor or promisee, according to the nature of the contract.” But if a person, bound in the alternative to do one of two things, by a certain day, let the day pass without making an election, by performing one or the other, he loses his election, and the other party may elect which he will demand. As, where one was bound to pay six hundred dollars for a patent right, at the end of twelve months, or to account for the profits, and he did neither at the end of that time, the other party was held entitled to demand six hundred dollars, though the profits were less than that sum.'
There are cases, in which the mere omission of the party to perform one alternative is an election of the other. As, where goods are sold at six or nine months' credit, the purchaser, by not paying at the end of six months, elects to take credit for nine; and he cannot be sued before nine months have elapsed. If, however, in this case, the contract had been, that at the end of three months, the buyer should give his note at three or six months, and he had done neither, doubtless, (on the principle of the foregoing cases,) he might have been sued for breach of his contract, though not for the price of the goods. He might be sued for the goods, at the expiration of the three months-as the election belonged to the seller, and the time of credit was no longer at the buyer's option."
i Co. Lit. 145, a. ? See examples, in Bac. Ab. & Com. Dig. ubi sup.
3 M’Nitt o. Clark, 7 Johns. 465. S. P. More v. Morecomb, Cro. Eliz. 864 ; Abbot o. Rookwood, Cro. Jac. 594.
4 Price o. Nixon, 5 Taunt. 338.
5 Mussen v. Price, 4 East, 147 ; Brooke v. White, 1 New Rep. 330; Cothay v. Murray, 1 Campb. 335.
Where a contract, a will, or a statute, is unintelligible, and the meaning cannot be elicited by any of the foregoing rules of construction, it is inoperative and void.'
14 Mass. R. 205, per Parsons, C. J. ; Swinburne, Part vii, $ $ 6–10; Powell on Devises, (1st ed.) 411 ; United States o. Canfril, 4 Cranch, 167; Bac. Ab. Statute, A.
ART. II.-BIOGRAPHICAL NOTICE OF JAMES SMITH.
[From the Law Magazine for February, 1840.]
The members who do most honor to the legal profession are not those who make its distinctions and emoluments their sole object--for they often cut a sorry figure beyond its sphere,—but those who combine with the diligent and conscientious discharge of its duties a fair proportion of the acquirements or qualities which are appreciated in society. Amongst the most remarkable of such men was the late James Smith, and we feel it a duty to record the few particulars we have been able to collect concerning him.
He was the son of an eminent solicitor, and born in London, February 16th, 1775. In January, 1785, he was placed at school with the Rev. Mr. Burford, at Chigwell in Essex, which he left in June, 1789, for the New College at Hackney, where he remained one year. His education was completed under Mr. Wanostrocht, at Alfred House, Camberwell. He was articled to his father in 1792, and in due time taken into partnership. He was also appointed jointsolicitor to the Ordnance Board, and succeeded to the sole appointment on his father's death in 1832.
We rather think, from his description, that his father was a practitioner of the old school, not very tolerant of digres
sions from the beaten track, and likely enough to regard either or both of his distinguished sons as
“ Some youth his parents' wishes doomed to cross,
But the old gentleman had sufficient respect for literature to point out Dr. Johnson to his son James, who, though he could not have been more than eight years old at the time, retained a vivid recollection of the circumstance- Virgilium tantum vidi.
To the best of our information, James's coup d'essai in literature was a hoax in the shape of a series of letters to the editor of the Gentleman's Magazine, detailing some extraordinary antiquarian discoveries and facts in natural history, which the worthy Sylvanus Urban inserted without the least suspicion ; and we understand that the members of the Antiquarian and Zoological Societies are still occasionally in the habit of appealing to them in corroboration of their theories. In 1803, he became a constant contributor to the Pic Nic and Cabinet weekly journals, in conjunction with Mr. Cumberland, sir James Bland Burgess, Mr. Horatio Smith, and others. The principal caterer for these publications was colonel Greville, on whom lord Byron has conferred a not very enviable immortality
" Or hail at once the patron and the pile
One of James Smith's favorite anecdotes related to him. The colonel requested his young ally to call at his lodgings, and in the course of their first interview related the particulars of the most curious circumstance in his life. He was taken prisoner during the American war, along with three other officers of the same rank; one evening they were summoned into the presence of Washington, who announced to them that the conduct of their government,