Liberal constructions of written documents are to be made, because of the simplicity of the laity, and with a view to carry out the intention of the parties and uphold the document; and words ought to be made subservient, not contrary, to the intention.
The translation given of this maxim, taken generally, makes its meaning sufficiently obvious. It may be well, however, further to observe, that it applies to all written instruments of a private or public nature, and that the intention of the parties will in all cases be the rule of construction, where such construction will not contravene any positive rule of law.
Where an instrument cannot be construed so as to carry out fully the intentions of the parties, it shall be made to operate so far as possible. Where two join in a grant of land, one having no interest or no capacity, the grant shall be construed to operate as that of the one having the interest or capacity ; or, where one grants a larger estate than he possesses, the grant shall be construed so as to pass such estate as he has. So in deeds, contracts, wills, etc, where the parties omit to express themselves in technical language, the deficiency will be supplied by the context, and the intention upheld where, in doing so, no express rule of law established for the construction of such deeds, contracts, wills, &c, will be thereby violated. Where, however, technical language is used, even though improperly, effect must be given to it, according to the rule of giving effect to every part of a document, unless it leads to manifest absurdity. The construction to be put upon Acts of Parliament depends upon the intention of the Legislature, and each part of them is to be read and construed with reference to the whole, as is the case with the ordinary acts of individuals. The construction of instruments between parties, wills, etc, depends upon the intention of the parties, and the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnancy or inconsistency with the rest of the instrument, in which case, the grammatical and ordinary sense of the words is to be modified so as to avoid that absurdity or inconsistency, but no further. There is, however, a limit put to the construction of written instruments, and that is, that words will not be added to, or struck out of, a document so as to alter in anywise the obvious meaning of it in any part, nor so as to make a fresh deed or document for the parties, but every part of the document, and every word in it, must be considered with reference to the whole, and that whole considered in a manner agreeable to reason and common sense, according to manifest intention, and with a view, if possible, to uphold the document. For, “ Nihil tarn conveniens est naturali sequitati, quarn voluntatem domini voluntatis rem suam in alium transferre ratam habere” — Nothing is so consonant to natural equity as to regard the intention of the owner in transferring his property to another.
A single instance of the practical application of the maxim under consideration will suffice. Where a bill of sale appeared to have been executed on the 31st of December, 18 GO, and the date of the jurat of the affidavit which was filed with it being the 10th of January, 1860 ; the Court of Queen's Bench assumed that the date in the jurat arose from a mistake often made in dates at the commencement of the year, and in accordance with the principle of this maxim allowed the jurat to be amended.
Co. LiU. 36; 1 Co. 100; Shep. Touch. 86, 87, 16C, 253; Gore ,. Lloyd,
12 M. &W. 478; Chapman v. Towner, C M. & W. 100; Tarte f. Darby, 15JI.it \X. C01; Biffin i. Yorke, C Scott X. R. 235; Arnold v. Ridge,
13 C. B. 703; Ea.it i: Twyford, i H. L. Cas. 556; Blamford v. Blamford, 3 Buls. 103 ; Hollingsworth v. White, L. T. (X.S.) GUI ; Grey v. Pearson, 29 L. T. 67 ; Cheney r. Courtois, 7 L. T. (X.S.) 6S0; Broom c. Bachelor, 27 L. T, 22.