on

end of the article. The more special subject of legal interpretation is found in Lieber on Legal Hermeneutics, 3d ed., with Hammond's notes, 1880. A distinction is made in this work between interpretation and construction, and rules are laid down for each. There are other strictly legal books particularly on statutes, Dwarris (Eng.) on Statutes. Sedgwick and Smith, also Wilberforce (London, 1881), and Maxwell. There are also useful magazine articles and works wills, of which latter Farman is the leading. The rules laid down in the text refer to written language. It is common in English statutes to have an interpretation clause. Rules of interpretation apply both to civil and criminal statutes with some modification. There is established by statute in some States a special rule as to prosecution for a criminal libel, viz. that the jury shall be the judges of the law and the fact. In New York such a special rule is found in the constitution, Art. 1, Sec. 8. It does not apply to civil actions for libel. There is a great legal advantage in the proposition that the construction of a written instrument is a matter of law. It enables the courts to work out a series of rules, and to settle questions by appeal. The appellate court is not bound at all by decisions of the court below, and may take advantage of every circumstance in the case influencing construction See St. Luke's Home vs. Association, 52 N. Y.,

191.

CONSTRUCTION.

Section II. Power of the court of interpretation for construction to substitute one word for another. It is not an unfrequent thing in construing a will for the court to change a word used by the testator for

one deemed to be more consonant with his intention when reference is had to other words used in the will. There is an extensive collection of authorities in Jarman on Wills, Vol. II. This doctrine is not confined to the words "or" and "and" as is sometimes stated, but extends to some other cases of inaccurate use of language, as, for example, "severally," used instead of "respectively." The words "or" and "and," however, present the larger number of instances. A very common instance of the application of the rule is where a testator provides that if a legatee or devisee dies under 21 years of age or without issue, the legacy or devise shall go to another person. His meaning probably is that if such legatee, etc., shall die during minority and childless; and if the court is so satisfied it will give it that construction. The court however is quite adverse to the converse construction, i. e. construing and to mean or. So, if the words in the will had been that, “if the legatee should die during minority, and without issue, then the estate shall go to another," both events would be required to happen. A leading case in Brownsword vs. Edwards, 2 Vesey, Sr., 247; also 6 H. of L. Cases, 60. The principle is that the grammatical and ordinary sense of words must be used, unless that would lead to some absurdity or inconsistency with the rest of the instrument. In 7 H. of L. Cases, 68, the words "without issue" were interpolated into the will by construction of the court, but the judges (among the ablest in England) were equally divided.

Masculine words including feminine. The general rule on this subject cannot be universally applied. Thus the word man usually includes woman; but in an English statute which declared that every man should have a right to vote for members of

Parliament under certain restrictions, it was held in reference to the history of the right of suffrage and other circumstances, that women could not vote. This result was reached notwithstanding the fact that 13 and 14 Vic. Chap. 29 (a general statute), says that masculine words shall include feminine, unless otherwise expressly provided. Chorlton vs. Lings, L. R., 4 C. P., 474.

If an instrument can be construed either as a lease, or as an agreement to make a lease, the former construction is put upon it, in order that the lease may go into immediate possession.

The rule that if an instrument is partly written and printed, where two sets of words cannot be reconciled the written controls, is illustrated by the case of the name of a person voted for at a public election; that which is printed coming in competition with a written name. People vs. Saxton, 22 N. Y., 309. On the other hand, if written and printed words can be reconciled, they must be. Miller Railroad, 90 N. Y., 436.

ENTIRETY OF CONTRACTS.

VS.

Section IV. The question of the entirety of contracts principally arises as a matter of performance on the part of the plaintiff as a condition precedent to his right of recovery. If the contract be strictly entire the plaintiff must perform in full before he can recover damage from the other party for breach of contract. Such questions may arise on contracts of service, building contracts, sale of goods, etc. Supposing that the opposite party insists on strict performance and is ready to perform on his part, it will be a question whether the plaintiff must perform in full before any recovery can be had. Another theory may

be suggested; could not the plaintiff recover on a so-called quantum meruit for the services, etc., actually rendered so far as they are beneficial to the other party? The answer would seem to be that he cannot, as performance by him is a condition precedent to any recovery. The authorities are, however, greatly at variance, so that it becomes necessary to classify the cases.

Ist. Contract of services and building contracts. In this class of cases there is much unanimity of opinion upon the point that performance in full is a condition precedent to the right of recovery. A hires himself as a servant to B for a year for 600 dollars. A must perform in full unless disabled, or he can recover nothing. It would be the same if the contract were for a year at 50 dollars per month. If, however, the language were for a year at 50 dollars per month, payable monthly, the wages would become due monthly instead of annually, and the servant would be entitled to receive his earned wages, though he should afterwards break the contract, though liable to employer for damages for the breach.

So if a person were employed to build a house he must perform in full as a condition to a recovery of the price, though trifling deficiencies would not be regarded. Smith vs. Brady, 17 N. Y., 173. The opinion in this case is to be read. Glaucus vs. Black, 50 N. Y., 145; Johnson vs. De Peyser, 50 N. Y., 666. If full performance is not insisted upon by the opposite party, it is waived, 81 N. Y., 341; 80 N. Y., 312. cases of strict performance of a personal contract being prevented by the act of God as in case of sickness or death of a servant before the contract is fulfilled, a proportionate recovery can be had. Robinson vs. Davison, L. R. 2 Ex., 269; Wolff vs.

26 N. Y., 279; 71 N. Y., 40.

2d. Sales of goods. The case here referred to is the sale of a mass of goods for a single price, such as 500 bushels of wheat for 500 dollars. The vendor may perhaps deliver 250 bushels and fail to deliver more, without sufficient excuse. The vendee retains the goods delivered insisting on the residue. Can the vendor recover for the part performance? It would seem not, as the vendee is not in fault, and has done no act constituting a waiver. It might be objected that the vendee should restore what he has received or pay proportionately. The answer is that he is not bound to do that, as long as he is ready and willing to perform on his part. The cases on this point are extremely conflicting, and cannot be reconciled. A leading English case as to the right to recover is Oxendale vs. Wetherell, 9 B. and C., 386; see 18 Pickering, 555. This doctrine is

formance is held to be a condition precedent as in the building and service cases already cited. 18 Wendell, 187; 16 Wendell, 632; see also 85 N. Y., 407; 16 Ohio, 238. This rule does not apply when payment for goods or services has been made in advance, since a party having received a partial benefit would not be allowed to recover back the full amount, the action to recover back being based on equitable grounds. See reasoning of Denio, C. J., in Monell vs. Fire Ins. Co., 33 N. Y., 458, 9. Express conditions must be performed unless it appears that performance could not by any means have been accomplished. 82 N. Y., 543. 82 N. Y., 543. A failure from sickness might be of such a nature as to discharge defendant, as going to the root of the contract, L. R., 1 Q. B. D., 410. A case in which a temporary delay did not go to the root of the contract is L. R., 1 Q. B. D., 18.

ARREST AND BAIL.

§ 555. In an action on a contract against partners, to justify an arrest of any defendant it is necessary to prove that he actually and individually participated in the fraud. (17 J. & Sp. 123.)

8557. When facts are positively stated, the affiant need not state the source of his knowledge or the grounds of his belief; aliter, if he swears on information and belief. (77 N. Y., 589; 13 Civ. Pro. Rep., 445.)

If judgment be rendered against a defendant and he be charged in execution, the provisional order of arrest is extinguished, and it is not revived by a reversal of the judgment. The defendant being discharged from execution after the reversal, cannot be held under the original order of arrest. (81 N. Y., 43.)

§ 567. Upon appeal from order denying a motion to vacate an order of arrest, the Court of Appeals will not review the order when the facts proved, or the legitimate inferences from those facts, furnish some evidence tending to establish the existence of one of the grounds of arrest. But when there is no evidence tending to establish such a conclusion and the natural inferences from the facts do not necessarily lead to the presumption of a fraudulent intent, a question of law is presented for that court. (96 N. Y., 100.)

8572. See 44 Hun, 475; 12 Civ. Pro. R., 431, 433, 175; 11 id., 404, 407.

575. If the sheriff takes security other than the law authorizes, it is void; as if he exacts an undertaking for a larger sum than that specified. (84 N. Y., 223, 234; 80 N. Y., 205.)

§ 581. Where the sheriff is discharged by the allowance of bail, the court has no power to renew his liability. (93 N. Y., 57.)

§ 586. This applies to a case where a person deposits money for the benefit of the defendant. It was formerly held that it became the defendant's money by the loan, and was subject to attachment in a subsequent suit against him, which attachment would hold the money if the suit in which the deposit was made failed. (6 Abb. Pr. 191.)

§ 601. No demand need be made before suing the sureties, and they are not relieved by the bankruptcy of their principal. (27 Hun, 46.)

§ 603. An order of General Term affirming an order granting a temporary injunction is not reviewable in the Court of Appeals, except where it plainly appears on the face of the complaint that the case is one in which by settled adjudication the plaintiff, on the facts stated, is not entitled to the relief of a final injunction. In all other cases the granting of the order rests in the sound discretion of the court of original jurisdiction, subject only to review by General Term. (121 N. Y., 397; 90 N. Y., 58.)

§ 606. A judge of the N. Y. Court of

terclaims known to the plaintiff. (30 Hun, 248; 33 id., 484; 41 id., 61.) But when the agent can be presumed to have such knowledge from the nature of his position, duties, etc., he need not show how he gained such knowledge. (44 Hun, 85.)

If the affidavit does not show these facts the judge has no jurisdiction to grant the warrant. (87 N. Y., 141; 101 N. Y., 5.)

The form of a sufficient affidavit is given in 35 Hun, 541; of an insufficient one in 12 Civ. Pro Rep., 439. See also 63 N. Y., 646; 78 N. Y., 252; 35 Hun, 541; 40 Hun, 499.

§ 638. Publication in one paper on the

So a judgment for a tort is to be deemed a contract. (108 N. Y., 276.)

§ 636. Allegations in an affidavit to show fraud may, though weak, be sufficient to give the court sufficient power to decide that fraud existed, and if it so decides and awards the attachment, its action is not reviewable in the Court of Appeals. (104 N. Y., 297; 115 N. Y., 665.)

Affidavits may be on information and belief, but the sources of information and grounds of belief must be so stated that the judge can see that the belief has a proper basis to rest upon. (119 N. Y., 160.)

See this case also for forms of affidavits held sufficient to show that the defendant had departed from the State with intent to defraud his creditors.

after the granting of the order is not sufficient and the warrant will be vacated. (76 N. Y., 599, see also 80 N. Y., 548.) But voluntary appearance within thirty days is equivalent to a service of summons. (91 N. Y., 668.) Substituted service is not sufficient under this section. (26 Hun, 463.)

If publication be begun within 30 days and the plaintiff voluntarily appear after 30 days and consent to entry of judgment, and publication be then discontinued, the attachment will hold good. (108 N. Y., 355.)

§ 639. In affidavits on information and belief, first state the reason why it is not made on knowledge, then state the source of your information showing that it came from persons likely to have knowledge, and also the grounds of your belief, showing

them to be reasonable.

§ 644. The sheriff may exercise a reasonable discretion as to the amount of property to be attached and held by him. (83 N. Y., 231.)

R. R. bonds in the possession of a trust company were delivered to the sheriff upon his threat to break open the safes of the