defendant."-Cockburn v. Alexander (1848), 6 C. B. 791, at p. 814; 18 L. J. C. P. 74, at p. 83, Maule, J.

"But suppose we import into this case the rule that where a doubt exists and one mode of construction renders a contract valid and the other invalid, the former should be adopted."-Steele v. Hoe (1849), 19 L. J. Q. B. 89, at p. 93, Erle, J.

66

We think that the words in their ordinary acceptation are capable of expressing a past or a concurrent consideration; and as upon one construction the instrument is void, the other is to be adopted which makes it valid."-Ibid., Patteson, J., delivering the judgment of the Court.

"The general rule is that where there is any doubt as to the construction of any stipulation in a contract, one ought to construe it strictly against the party in whose favour it has been made."Burton v. English (1883), 12 Q. B. D. 218, at p. 220; 53 L. J. Q. B. 133, at p. 135, Brett, M. R.

"It is also a settled canon of construction that where a clause is ambiguous a construction which will make it valid is to be preferred to one which will make it void. This is analogous to the rule laid down in Grey v. Pearson (1857), 6 H. L. Cas. 61; 26 L. J. Ch. 473, referred to in Abbott v. Middleton (1858), 7 H. L. Cas. 68; 28 L. J. Ch. 110."-Mills v. Dunham, [1891] 1 Ch. 576, at p. 590; 60 L. J. Ch. 362, at p. 367, Kay, L. J.

Latent Ambiguity.

A latent ambiguity is where the words of the contract are free from ambiguity in themselves but difficult as to their application to the external circumstances.

Evidence dehors the contract is admissible to explain a latent ambiguity.

"A latent ambiguity is, where you shew that words apply equally to two different things or subject-matters, and then evidence is admissible to shew which of them was the thing or subject-matter intended."-Smith v. Jeffryes (1846), 15 M. & W. 561, at p. 562; 15 L. J. Ex. 325, Alderson, B.

Patent Ambiguity.

A patent ambiguity is where there is a doubt on the face of the instrument.

Evidence to explain a patent ambiguity is not admissible.

Evidence of the private views or surmised, alleged, or secret inten

tions and known principles of the parties is never admissible. "This is a case of ambiguitas patens, and according to the rules of law, evidence to explain such an ambiguity is not admissible. Where there is doubt on the face of the instrument, the law admits no extrinsic evidence to explain it."-Saunderson v. Piper (1839), 5 Bing. N. C. 425, at p. 431, Tindal, C. J.

"In the first place there is no doubt that, not only where the language of the instrument is such as the Court does not understand, it is competent to receive evidence of the proper meaning of that language, as when it is written in a foreign tongue; but it is also competent where technical words or peculiar terms, or, indeed, any expressions are used, which at the time the instrument was written had acquired an appropriate meaning, either generally or by local usage, or amongst particular classes. The authorities in support of this position are Att.-Gen. v. The Cast-Plate Glass Co. [(1787), 1 Anstr. 39]; Goblett v. Beechy [(1829), 3 Sim. 24]; V. Wilson [(1832), 3 B. & Ad. 728]; Richardson v. Watson [(1833), 4 B. & Ad. 787]; and Clayton v. Gregson [(1836), 5 E. 302]. This description of evidence is admissible, in order to enable the Court to understand the meaning of the words contained in the instrument itself, by themselves, and without reference to the extrinsic facts on which the instrument is intended to operate."-Shore v. Wilson (1842), 9 Cl. & F. 355, at p. 555; 5 Scott, 958, at pp. 1028, 1029, Parke, B.

Smith

Ad. &

the

"The general rule I take to be, that where the words of any instrument are free from ambiguity in themselves, and where external circumstances do not create any doubt or difficulty as to proper application of those words to claimants under the instrument, or the subject-matter to which the instrument relates, such instrument is always to be construed according to the strict, plain, common meaning of the words themselves; and that in such case evidence dehors the instrument, for the purpose of explaining it according to the surmised or alleged intention of the parties to the instrument is utterly inadmissible. If it were otherwise, no lawyer would be safe in advising upon the construction of a

written instrument, nor any party in taking under it: for the ablest advice might be controlled and the clearest title undermined if, at some future period, parol evidence of the particular meaning which the party affixed to his words, or of his secret intention in making the instrument, or of the objects he meant to take benefit under it, might be set up to contradict or vary the plain language of the instrument itself.

"The true interpretation, however, of every instrument being manifestly that which will make the instrument speak the intention of the party at the time it was made, it has always been considered as an exception, or perhaps, to speak more precisely, not so much an exception from, as a corollary to, the general rule above stated that, where any doubt arises upon the true sense and meaning of the words themselves, or any difficulty as to their application under the surrounding circumstances, the sense and meaning of the language may be investigated and ascertained by evidence dehors the instrument itself; for both reason and common sense agree that by no other means can the language of the instrument be made to speak the real mind of the party. Such investigation does of necessity take place in the interpretation of instruments written in a foreign language; in the case of ancient instruments where, by the lapse of time and change of manners, the words have acquired in the present age a different meaning from that which they bore when originally employed; in cases where terms of art or science occur; in mercantile contracts which in many instances use a peculiar language employed by those only who are conversant in trade and commerce; and in other instances in which the words, besides their general common meaning, have acquired by custom or otherwise a well-known peculiar idiomatic meaning in the particular country in which the party using them was dwelling, or in the particular society of which he formed a member, and in which he passed his life. In all these cases evidence is admitted to expound the real meaning of the language used in the instrument, in order to enable the Court or judge to construe the instrument, and to carry such real meaning into effect.

"But whilst evidence is admissible in these instances for the purpose of making the written instrument speak for itself, which without such evidence would be either a dead letter, or would use a doubtful tongue, or convey a false impression of the meaning of the party, I conceive the exception to be strictly limited to cases of the description above given, and to evidence of the nature above

detailed; and that in no case whatever is it permitted to explain the language of a deed by evidence of the private views, the secret intentions, or the known principles of the party to the instrument, whether religious, political, or otherwise, any more than by express parol declarations made by the party himself, which are universally excluded; for the admitting of such evidence would let in all the uncertainty before adverted to: it would be evidence which, in most instances, could not be met or countervailed by any of an opposite bearing or tendency, and would in effect cause the secret, undeclared intention of the party to control and predominate over the open intention expressed in the deed."—Ibid., at pp. 565, 566; Scott, at pp. 1037—1039, Tindal, C. J.

Alterations in Contracts.

All contracts which are altered or erased in a material part are thereby avoided.

"The strictness of the rule on this subject, as laid down in Pigot's Case [(1615), 6 Coke, p. 47, P. XI. 27a], can only be explained on the principle that a party who has the custody of an instrument made for his benefit, is bound to preserve it in its original state. It is highly important for preserving the purity of legal instruments that this principle should be borne in mind, and the rule adhered to. The party who may suffer has no right to complain, since there cannot be any alteration, except through or laches on his part. To say that Pigot's Case [ (1615), 6 Coke, P. 47, P. XI. 27 a] has been overruled, is a mistake; on the contrary, it has been extended; the authorities establishing, as common sense requires, that the alteration of an unsealed paper will vitiate it."-Davidson v. Cooper (1844), 13 M. & W. 343, at p. 352; 13 L. J. Ex. 276, at p. 280, Lord Denman, C. J.

fraud

(See also Pattinson v. Luckley (1875), L. R. 10 Ex. 330; 44 L. J. Ex. 180.)

"I will first of all consider the general law on the subject, which I take to be settled now beyond dispute. The leading case, and which from the time of James I. has always been so treated, is Pigot's Case (1615), 6 Coke, p. 47, P. XI. 27 a, and whatever may be said of the first resolution in Pigot's Case, no doubt has ever been raised as to the second resolution, which is this, 'that when any deed is altered in a point material by the plaintiff himself, or by any stranger without the privity of the obligee, be it by inter

lineation, addition, rasing, or by drawing of a pen through a line or through the midst of any material word, the deed thereby becomes void.' So that even if a single word which is material is erased it destroys the instrument. It was next decided that such rule of law which applied to deeds applied to documents not under seal. The case which decided this was the well-known case of Master v. Miller (1791), 4 T. R. 320, decided in the year 1791. There Lord Kenyon, who was Lord Chief Justice of the Queen's Bench, held that the rule which applied to instruments under seal applied to documents not under seal, because,' he said, 'no man shall be permitted to take the chance of committing a fraud without running any risk of losing by the event, when it is detected.' Then he added, 'The cases cited, which were all of deeds, were decisions which applied to and embraced the simplicity of all the transactions at that time; for at that time almost all written engagements were by deed only. Therefore those decisions which were indeed confined to deeds applied to the then state of affairs, but they establish this principle, that all written instruments which were altered or erased should be thereby avoided.' Ashhurst, J., said this: 'Now I cannot see any reason why the principle on which a deed would have been avoided should not extend to the case of a bill of exchange. All written contracts, whether by deed or not, are intended to be standing evidence against the parties entering into them. There is no magic in parchment or wax. And a bill of exchange, though not a deed, is evidence of a contract as much as a deed; and the principle to be extracted from the cases cited is that any alteration avoids the contract.' I will not read the elaborate judgment of Buller, J., because he was in the minority, and when you want to find out the principle of a decision, it is only necessary to refer to the judgments of the judges who were in the majority, and whose decision it really was. I will therefore pass on to the judgment of Grose, J., which on this point is very plain. 'Pigot's is the leading case,' he said; from that I collect that when a deed is erased whereby it becomes void, the obligor may plead non est factum and give the matter in evidence, because at the time of plea pleaded it was not his deed; and, secondly, that when a deed is altered in a material point by himself, or even by a stranger, the deed thereby becomes void. Now the effect of that determination is, that a material alteration in a deed causes it no longer to be the same deed. Such is the law respecting deeds ; but it is said that the law does not extend to the case of a bill of