regards the power of the Courts, and at the same time so well recognised as to be binding on this Court [of Appeal] and all other Courts."-Ex parte Walton (1881), 17 Ch. D. 746, at p. 750; 50 L. J. Ch. 657, at p. 658, Jessel, M. R.

Stereotyped rules of juridical writers cannot be accepted as infallible canons.

"Stereotyped rules laid down by juridical writers cannot, therefore, be accepted as infallible canons of interpretation in these days, when commercial transactions have altered in character and increased in complexity; and there can be no hard-and-fast rule by which to construe the multiform commercial agreements with which in modern times we have to deal."-Jacobs v. Crédit Lyonnais (1884), 12 Q. B. D 589, at p. 601; 53 L. J. Q. B. 156, at p. 159, Bowen, L. J., delivering the judgment of the Court of Appeal.

"It is to be observed that the rule [of ejusdem generis] admits, as every rule of construction of documents must admit, as it is after all but a working canon to enable us to arrive at the meaning of the particular document-it admits of being modified by the contents of the document itself, and there are many classes of cases in which it is obvious the rule would have to bend."-Earl of Jersey v. Guardians of Poor of Neath Poor Law Union (1889), 22 Q. B. D. 555, at pp. 561, 562; 58 L. J. Q. B. 573, at p. 577, Bowen, L. J.

"Rightly or wrongly, certain canons of construction have been acted upon for so long that I think it would be impossible now to disregard them, partly on the ground that it is to be assumed— whether the assumption is well founded or not I do not stop to inquire that lawyers draw instruments with reference to the known state of the law, and the known state of the law is supposed to include those canons of construction which from time to time have been adopted by the Courts in the construction of wills."Kingsbury v. Walter, [1901] A. C. 187, at pp. 188, 189; 70 L. J. Ch. 546, at p. 547, Earl of Halsbury, L. C.

Incorporating Clauses

Ancient Instruments-Evidence of Custom and Usage
Alterations in Instruments

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Definition of the word "Instrument."

An instrument" seems to embrace contracts, deeds, statutes, wills, Orders in Council, orders, warrants, schemes, letters patent, rules, regulations, bye-laws, whether in writing or in print, or partly in both; in fact, any written or printed document that may have to be interpreted by the Courts.

"An instrument is a writing as the means of giving formal expression to some act.""-Webster's Dictionary.

An instrument is a deed, writ, or other law proceeding reduced into writing."-Wharton's Law Lexicon.

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"A deed, will, or whatever other instrument may have to be construed by the Court."-- Att.-Gen. v. Earl of Powis (1853), Kay, 186, at p. 207, Sir W. Page Wood, V.-C.

A Statute is an Instrument in Writing.

"I shall therefore state, as precisely as I can, what I understand from the decided cases to be the principles on which the Courts of

law act in construing instruments in writing; and a statute is an instrument in writing."-River Wear Commissioners v. Adamson (1877), 2 App. Cas. 743, at p. 763; 47 L. J. Q. B. 193, at p. 202, Lord Blackburn.

"Any instrument-that is to say, any Order in Council, order, warrant, scheme, letters patent, rules, regulations, or bye-laws.”Interpretation Act, 1889 (52 & 53 Vict. c. 63), s. 31.

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"The Act [Stamp Act, 1891 (54 & 55 Vict. c. 39)] speaks of the 'instrument.' The provision is not confined to the operative part of the instrument. It speaks of the instrument as relating to' certain subjects. There is no expression more general or farreaching than that."-Inland Revenue Commrs. v. Maple & Co. (Paris), Ltd., [1908] A. C. 22, at p. 26; 77 L. J. K. B. 55, at p. 59, Lord Macnaghten.

N.B.-The word "instrument" is in this work used synonymously with the word "document" and as including all material substances on which the intentions of men are represented by printing or writing.

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Duties of Court and Jury.

It is the duty of the jury to ascertain as facts the true meaning of words of art, commercial phrases, and surrounding circumstances, and then to take the interpretation of the instrument from the judge, otherwise the entire interpretation belongs to the judge.

Judges ought to remember that their office is 'jus dicere' and not jus dare'; to interpret law and not to make law."-Bacon's Essays Of Judicature.

"The law I take to be this,—that it is the duty of the Court to construe all written instruments; if there are peculiar expressions used in it, which have, in particular places or trades, a known meaning attached to them, it is for the jury to say what the meaning of these expressions was, but for the Court to decide what the meaning of the contract was.”—Hutchinson v. Bowker (1839), 5 M. & W. 535, at p. 542, Parke, B.

"The construction of all written instruments belongs to the Court alone, whose duty it is to construe all such instruments, as soon as the true meaning of the words in which they are couched, and the surrounding circumstances, if any, have been ascertained as facts by the jury; and it is the duty of the jury to take the construction from the Court, either absolutely, if there be no words of art or phrases used in commerce, and no surrounding circum

stances to be ascertained; or conditionally, when those words or circumstances are necessarily referred to them. Unless this were so, there would be no certainty in the law: for a misconstruction by the Court is the proper subject, by means of a bill of exceptions, of redress in a Court of Error; but a misconstruction by the jury cannot be set right at all effectually."—Neilson v. Harford (1841), 8 M. & W. 806, p. 823; 11 L. J. Ex. 20, at p. 25, per cur.

"My duty is plain. It is to expound and not to make the law -to decide on it as I find it, not as I wish it to be."-Miller v. Salomons (1852), 7 Exch. 475, at p. 543; 21 L. J. Ex. 161, at p. 190, Alderson, B.

"I apprehend that, in construing an Act of Parliament, a deed, will, or whatever other instrument may have to be construed by the Court, I have a right to look to all the circumstances which the parties to the instrument, whether a testator, a donor, or the Legislature, who are executing a solemn act, had before them at the time, and were themselves contemplating, as proved, not of course, by any extrinsic evidence, but by evidence afforded by the instruments themselves, and also such matters as can be proved by extrinsic evidence to have been the circumstances which surrounded them, and which may have affected the conclusion at which they arrived."— Att.-Gen. v. Earl of Powis (1853), Kay, 186, at p. 207, Sir W. Page Wood, V.-C.

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'Is not the judge bound to know the meaning of all words in the English language, or, if they are used technically or scientifi cally, to inform his own mind by evidence, and then to determine the meaning?"-Hills v. London Gaslight Co. (1857), 27 L. J. Ex. 60, at p. 63, Martin, B.

"When the meaning of a document depends on facts dehors the document, those facts must be first ascertained, and then it is for the judge, no doubt, to determine the meaning."—Ibid. at p. 64, Bramwell, B.

"It is no doubt true that the construction of written instruments is matter of law, and that where a written instrument is laid before jurymen they are bound to receive the interpretation of the effect of that instrument from the judge.”—Lyle v. Richards (1866), L. R. 1 H. L. 222, at p. 241; 35 L. J. Q. B. 214, at p. 224, Lord Westbury.

"The office of the judges is not to legislate, but to declare the expressed intention of the Legislature, even if that intention appears to the Court injudicious."-River Wear Commissioners v.

Adamson (1877), 2 App. Cas. 743, at p. 764; 47 L. J. Q. B. 193, at p. 203, Lord Blackburn.

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Evidence of Contents of Instrument.

The contents of a written instrument are to be proved by the instrument itself.

In their (the judges') judgment (it) is a rule of evidence as old as any part of the common law of England that the contents of a written instrument, if it be in existence, are to be proved by that instrument itself, and not by parol evidence."-Queen Caroline's Case (1820), 2 B. & B. 284, at p. 289, Abbott, C. J.

"I have always (perhaps more so than other judges) acted most strictly on the rule that what is in writing shall only be proved by the writing itself. My experience has taught me the extreme danger of relying on the recollection of witnesses, however honest, as to the contents of written instruments; they may be so easily mistaken, that I think the purposes of justice require the strict enforcement of the rule."-Vincent v. Cole (1828), M. & M. 257, at p. 258, Lord Tenterden, C. J.

Beneficial Construction.

"There are two modes of reading an instrument: where the one destroys and the other preserves, it is the rule of law, and of equity, following the law in this respect (for it is a rule of common sense, which I trust is common to both sides of Westminster Hall), that you should rather lean towards that construction which preserves than towards that which destroys. Ut res magis valeat quam pereat is a rule of common law and common sense." -Langston v. Langston (1834), 2 Cl. & Fin. 194, at p. 243, Lord Brougham, L. C.

"It is a cardinal rule of construction that all documents are to be construed ut res valeat magis quam pereat.”—In re Florence Lund and Public Works Co. (1878), 10 Ch. D. 530, at p. 544; 48 L. J. Ch. 137, at p. 144, James, L. J.