An argument from inconvenience avails much in law.
This rule applies particularly to those cases where the language of a deed or other document under consideration is ambiguous, when that construction of the language used which will lead to the least inconvenience will be adopted, as being the one most likely to be that which was intended. In legal proceedings, and the practice of the courts, also, as well as in the construction of Acts of Parliament and similar documents, the rule applies, and will be adopted where its application will not violate any positive fixed law. The argument ab inconvenienti is the argument most commonly used in our courts of law and equity ; for, wherever the law is found to be defective or insufficient to meet a particular case, and which is of daily occurrence, the argument ab inconvenienti arises, and is permitted to prevail. By this means the inconvenience is removed, and a precedent is formed for future similar cases. This precedent is part of the common law, and remains so to be acted upon until disused or incorporated with the statute law. This could not be otherwise — i.e., every inconvenience occurring in the law or in its administration must be removed either by precedent or statute ; for, all laws being made to remedy inconveniences, and for no other purpose, the moment an inconvenience arises there arises also the necessity for its removal. And this is the meaning of the maxim, that an argument arising from inconvenience avails much in law — avails so much, in fact, that, in the absence of express law to the contrary, it is the law. The following may be given as a practical instance of the application of this maxim : — The rule in Bankruptcy is; that until a creditor prove his debt he has no locus standi to oppose the bankrupt s ' discharge before the commissioner ; and it is also said that if he have no status to oppose in the court below, he cannot be heard to oppose on appeal in the court above. Upon the same principle it was contended that a creditor having a status, but who did not oppose in the court below, could not be heard in the court above, the court above being appellate only ; but it was ruled that any creditor who is entitled to oppose in the court below, though he do not there oppose, may, notwithstanding, appeal against the bankrupt's discharge ; for were it otherwise, the greatest inconvenience would arise if 200 or 300 creditors must all appear before the commissioner in the court below and oppose the discharge in order to entitle them to appeal.
It is also said that nothing which is inconvenient is lawful : “Nihil quod ineonveniem est licitum est.” And, following that principle, it is that public policy requires that all things be done with a view to the public benefit and convenience. It will not, therefore, be permitted that any person should so act as to work a public inconvenience. For this reason it“is that a contract having for its object the preventing a man carrying on a trade or business, or gaining a livelihood in any particular trade or business, for how- ever short a time, is void as creating a public inconvenience ; and all prohibitory contracts of that description, having a tendency to interfere with the public good, will be so construed. This restraint upon trade does not, however, apply to a partial, i.e., local prohibition — as where a surgeon or attorney, by bond, is under a penalty not to exercise his profession in a particular district or town, but to a general prohibition only.
Co. Litt. CO, 07, 2.”jS ; May v. Brown, 3 B. & C. .'ill -131; Fletcher v. Lord Sondes, 3 Bing. .J01, Yaugh B. 37 ; Mirehouse v. Honnell, 1 CI. & Fin. 527-540 ; Hinde v. Gray, 1 M. & Gr. l'Jo ; Turner r. Sheffield Railway Company, 10 M. & W“. 434 ; Thompson c. Harvey, 1 Show. 2 ; Ward ». Byrne, o M. & W. 548 ; Pres. of Auchterarder v. Earl of Kinnoul, G CI. & Fin. 646-S71; Re Mark and Brooks, ex parte Burgess, 10 L. T. (X.S.) G34.