deed, and the delivery to the party who is to take by it, or to any person for his use, is not essential."-Doe d. Garnons v. Knight (1826), 5 B. & C. 671, at p. 692, Bayley, J. (cited by Pigott, B., in Xenos v. Wickham (1867), L. R. 2 H. L. 296, at p. 309; 36 L. J. C. P. 313, at p. 317).

"Now the rule uniformly acted upon from the time of Clayton's Case [5 Rep. 1] to the present day is, that a deed or other writing must be taken to speak from the time of the execution, and not from the date apparent on the face of it. That date is indeed to be taken prima facie as the true time of execution; but as soon as the contrary appears, the apparent date is to be utterly disregarded."-Browne v. Burton (1847), 5 D. & L. 289, at p. 292; 17 L. J. Q. B. 49, at p. 50, Patteson, J., delivering the judgment of the Court.

"It is conceded that, if Potez v. Glossop [(1848), 2 Ex. 191] is good law, the memorandum is admissible. Now, though some inconvenience might arise from the rule there laid down, we cannot help seeing that more would occur if no effect were given to the date appearing on the face of the document. It is only primâ facie evidence of the time when it was made; and it is quite open to the party against whom it is offered to show fraud and misrepresentation."-Malpas v. Clements (1850), 19 L. J. Q. B. 435, at p. 437, Lord Campbell, C. J.

"In Jayne v. Hughes [(1854), 10 Ex. 430; 24 L. J. Ex. 115], evidence was admitted to show that a deed (a more solemn instrument, if possible, even than a will) was wrongly dated."—Reffell v. Reffell (1866), L. R. 1 P. & M. 139, at p. 142; 35 L. J. P. 121, Sir J. P. Wilde.

"In the first place, the efficacy of a deed depends on its being sealed and delivered by the maker of it; not on his ceasing to retain possession of it. This, as a general proposition of law, cannot be controverted. It is not affected by the circumstance that the maker may so deliver it as to suspend or qualify its binding effect. He may declare that it shall have no effect until a certain time has arrived, or till some condition has been performed, but when the time has arrived, or the condition has been performed, the delivery becomes absolute, and the maker of the deed is absolutely bound by it, whether he has parted with the possession or not. Until the specified time has arrived, or the condition has been performed, the instrument is not a deed. It is

a mere escrow."-Xenos v. Wickham (1867), L. R. 2 H. L. 296, at p. 323; 36 L. J. C. P. 313, at p. 325, Lord Cranworth. (See also "Date," ante, p. 80.)

Contemporaneous Deeds.

Contemporaneous deeds representing a single transaction may be treated as one deed between the same parties.

"Where things are done in the same instant, they would transpose them, and suppose a precedency, it being to support common assurances; and so they might suppose the covenant to pay the rent to precede the raising of the use, and then the consideration would be executed."-Per North, C. J., in Barker v. Keete (1678), 1 Freem. 249, at p. 251. (See also Taylor d. Atkyns v. Horde (1757), 1 Burr. 60, at p. 106.)

"The doctrine as to contemporaneous documents rests on this, that when documents are actually contemporaneous, that is, two deeds executed at the same moment, a very common case, or within so short an interval that having regard to the nature of the transaction, the Court comes to the conclusion that the series of deeds represents a single transaction between the same parties, it is then that they are all treated as one deed; and, of course, one deed between the same parties may be read to show the meaning of a sentence, and be equally read, although not contained in one deed, but in several parchments, if all the parchments together in the view of the Court make up one document for this purpose.' Smith v. Chadwick (March, 1882), 20 Ch. D. 27, at pp. 62, 63; 51 L. J. Ch. 597, at p. 611, Jessel, M. R.

"I think the law stands in this way, that when two deeds are executed on the same day, the Court must inquire which was in fact executed first, but that if there is anything in the deeds themselves to show an intention, either that they shall take effect pari passu or even that the later deed shall take effect in priority to the earlier; in that case the Court will presume that the deeds were executed in such order as to give effect to the manifest intention of the parties."—Gartside v. Silkstone and Dodworth Coal and Iron Co. (June, 1882), 21 Ch. D. 762, at pp. 767, 768; 51 L. J. Ch. 828, at p. 829, Fry, J.

Time.

Greenwich or Dublin Mean Time.

Statutes (Definition of Time) Act, 1880, 43 & 44 Vict. c. 9 (2nd August, 1880).

Sect. 1. "Whenever any expression of time occurs in any Act of Parliament, deed, or other legal instrument, the time referred [sic] shall, unless it is otherwise specifically stated, be held, in the case of Great Britain, to be Greenwich mean time, and in the case of Ireland, Dublin mean time."

66

(See also ante, pp. 81, 82.)

Punctuation and Brackets.

By putting stops, or using the parenthesis, as pointed out by the plaintiff's counsel (at p. 49), it becomes perfectly clear and we know that no stops are ever inserted in Acts of Parliament, or in deeds; but the Courts of Law in construing them must read them with such stops as will give effect to the whole."-Doe d. Willis v. Martin (1790), 4 T. R. 39, at pp. 65, 66, Lord Kenyon, C. J.

Object.

"It has been truly said, in some cases, that the construction of a deed does not depend on the order of the covenants, or upon the precise terms of them; but that regard must be had to the object, and the whole scope of the instrument."-Richards v. Bluck (1848), 6 C. B. 437, at p. 441; 6 D. & L. 325, at p. 328; 18 L. J. C. P. 15, at p. 17, Wilde, C. J.

Intention of Parties.

Distinction between the Case of a Deed and a Will. "He (Lord Eldon) first adverts to the well-known distinction which has at all times prevailed as to the construction of deeds and wills, and which I have always understood to be this, that, although in both cases the Courts look to the intention of the parties, yet in construing a deed, unless there be in the deed some manifest contrariety or contradiction, rendering a different interpretation necessary in order to effectuate the intention of the

parties, the Courts are guided by the strict legal meaning of words; but in the case of a will, the testator is supposed to have been inops consilii, and on that ground alone a greater latitude is allowed in the construction of legal terms."-Lewis v. Rees (1856), 3 K. & J. 132, at pp. 146, 147; 26 L. J. Ch. 101, at p. 104, Page Wood, V.-C.

Inconsistent Parts of Deed.

Deeds shall operate according to the intention of the parties.
The intention is to be collected from the whole context and subject-
matter of the deed, so as to make one entire and consistent
construction of the whole.

Where there are inconsistent parts, effect ought to be given to that
part which is calculated to carry into effect the real intention,
and that part which would defeat it ought to be rejected.

"Such construction is always to be made of a deed that all the words (if possible) agreeable to reason and conformable to law, may take effect according to the intent of the parties without rejecting of any, or by any construction to make them void."_ 1 Coke, p. 233, Part I., 95 b (Shelley's Case).

"But surely it is a rule, both in law and equity, so to construe the whole deed or will as that every clause should have its effect." -Butler v. Duncombe (1719), 1 P. Wms. 449, at p. 457, Parker, L. C.

"Whenever it is necessary to give an opinion upon the doubtful words of a deed, the first thing we ought to inquire into is, what was the intention of the parties. If the intent be as doubtful as the words, it will be of no assistance at all. But if the intent of the parties be plain and clear, we ought, if possible, to put such a construction on the doubtful words of a deed as will best answer the intention of the parties, and reject that construction which manifestly tends to overturn and destroy it. I admit that though the intent of the parties be never so clear, it cannot take place contrary to the rules of law, nor can we put words in a deed which are not there, nor put a construction on the words of a deed directly contrary to the plain sense of them. But where the intent is plain and manifest and the words doubtful and obscure, it is the duty of the judges (and this is that astutia which is so commended by Lord Hobart, p. 277, in the case of the Earl of Clanrickard) to endeavour to find out such a meaning in the words as will best

answer the intent of the parties."-Parkhurst v. Smith (1741, 1742), Willes' Reps. 327, at p. 332, Willes, C. J. (cited and applied by Alexander, C. B., in Colmore v. Tyndall (1828), 2 Y. & J. 605, at p. 618, and in Langston v. Langston (1834), 2 Cl. & F. 194, at p. 243, by Lord Brougham, L. C.).

"The rules laid down in respect of the construction of deeds are founded in law, reason, and common sense: That they shall operate according to the intention of the parties, if by law they may and if they cannot operate in one form, they shall operate in that which by law will effectuate the intention."-Goodtitle v. Bailey (1777), 2 Cowp. 597, at p. 600, Lord Mansfield, C. J.

"It is a true rule of construction that the sense and meaning of the parties in any particular part of an instrument may be collected ex antecedentibus et consequentibus; every part of it may be brought into action in order to collect from the whole one uniform and consistent sense, if that may be done."-Barton v. Fitzgerald (1812), 15 East, 530, at p. 541, Lord Ellenborough, C. J.

66

According to the authority of Browning v. Wright [(1799), 2 B. & P. 13, at p. 22], covenants ought to be construed with due regard to the intention of the parties as it is to be collected from the whole context of the instrument, so as to make one entire and consistent construction of the whole."-Sicklemore v. Thistleton (1817), 6 M. & S. 9, at p. 12, Lord Ellenborough, C. J.

"I agree that in construing this covenant we are to look to the subject-matter of the contract, and to consider all the terms of the deed; I admit that a positive covenant may sometimes be controlled or qualified by other clauses in the deed.”—Saward v. Anstey (1825), 2 Bing. 519, at p. 522, Best, C. J.

"It is a good rule of construction that deeds should be construed so as to give effect to the intention of the parties."-Erans v. Vaughan (1825), 4 B. & C. 261, at p. 266, Abbott, C. J.

"If the provisions are clearly expressed, and there is nothing to enable the Court to put upon them a construction different from that which the words import, no doubt the words must prevail; but if the provisions and expressions be contradictory, and if there be grounds appearing on the face of the instrument, affording proof of the real intention of the parties, then that intention will prevail against the obvious and ordinary meaning of the words. If the parties have themselves furnished a key to the meaning of the words used, it is not material by what expression they convey