The express mention of one person, or thing, is the exclusion of another.
An instance of the application of this rule is, where a particular custom is sought to be introduced into a written contract at the instance of one of the parties. This cannot be done where the contract contains express stipulations of a nature contrary to the custom. As, in the case of a lease containing stipulations which are in themselves inconsistent with the custom of the country ; such custom is thereby excluded from the lease, and from taking effect upon it in any manner at variance with the express contract of the parties as stated in the lease. Again, that which is positively expressed shall not be controlled or negatived by that which is merely implied, as is also shown by the maxim, “Expressum facit cessare taciturn.” As, where lands are given to two, they are joint tenants for life, but the habendum may otherwise limit the estate ; as, if a lease be made to two, habendum to the one for life, the remainder to the other for life, this alters the general meaning of the premises. And if a lease be made to two, habendum to one, moiety to one, and another moiety to another, the habendum makes them tenants in common. And so one part of the deed explains the other, and there is in that case no repugnance.
The maxim under notice must not be considered as restricting the doctrine of implication ; it merely restrains its application within the limits expressed in the maxim. But an express agreement between parties ousts every implication by law. A sum of money secured by mortgage in fee of real estate will by the ordinary rules of law go to a man's executors, and not to his heirs, unless a contrary intention be expressed by the deed ; for the money, which is personal property, is not converted by its being secured upon real estate, though an expression to the contrary would alter its devolution. So the legal estate in the fee in such mortgaged property would go to the heir-at-law of the mortgagor, unless a contrary intention appear by the deed. Upon the death of a mortgagor, his mortgaged freehold estate carries with it, whether by devise or descent, the burden of the mortgage, unless a contrary intention be expressed by the mortgagor by his will or otherwise. But this is not so as to lease- holds, for they are not within the statute, but are governed by the ordinary rules of law as to personal estate.
Where A. by his will left all his estate to F. M. F. and to his sister M. F., testator's granddaughter, share and share alike, the said M. F. then living in France with her uncle M. ; and M. F. was not then living, nor had ever so lived ; whilst her sister 0. F. was living, and had so lived with the uncle M. ; it was held that the name should control the description, and that M. F. was entitled. And this agrees with the rule, “ Nihil facit error nominis cum de corpore constat” — An error in a name is not of much consequence where there is a pretty clear indication of the person intended.
A new statute abrogates an old one. The common law ceases when the statute law commences. An express and implied covenant upon the same subject cannot exist together. General words are governed by particular words, and the absence of particular words gives effect to general words. A verbal agreement or stipulation will not be allowed to be added to a contemporaneous written agreement.
Co. Litt. 183, 210; 4 Co. 80; Shepp. Touch. 114; 1 Ld. Raym. 14 Emenens v. Elderton, 4 H. L. Gas. G24 ; Merrill v. Frame, 4 Taunt. 329 Loyd v. Ingleby, 15 M. & W. 465 ; Clarke v. Roystone, 13 M. & W. 752 Standen v. ChrismaB, 10 Q. B. 135 ; Tanner v. Smart, 6 B. & C. 609 , Webb v. Plummer, 2 B. & A. 746 ; Earl of Hardwieke v. Lord Sandys, 12 M. &W. 761; Solomon v. Solomon, 10 L. T. (N.S.) 54; Me Plunkett, 11 Ir. Ch. R. 361 ; Drake v. Drake, 8 H. L. Gas. 172.