voy, and arrives, after mentioning the general inaccuracy which has been already adverted to, he said, "It is amazing, that when additional claufes are introduced, the merchants do not take fome advice in framing them, or beftow more confideration upon them themselves. I do not recollect an addition being made, which has not created doubts on the construction of it." Simond v. Boydell, Doug. 255.

A full defcription of the intention is very different from an unneceffary multiplication of words, which is in itfelf a fource of confiderable confufion, both in private tranfactions and in acts of public authority. Speaking of the charter-parties of the East India Company, Lord Mansfield said, the charter-party is an old inftrument, unformal, and by the introduction of different clauses, at different times, inaccurate, and sometimes contradictory. Like all mercantile contracts, it ought to have a liberal interpretation, Many of the difficulties which have been raised are occafioned by the multiplicity of unneceffary words, introduced with a view to be more explicit, an effect which often arifes from the fame caufe in acts of parliament. Hotham v. Eaft India Company, Doug. 272. Upon any addition being made to, or any alteration being introduced in accustomed form, its effect and tendency upon the whole fhould be attentively confidered, so that the remaining parts of the form may be properly adapted to the new provisions, in order to avoid those inconfiftencies and contradictions, which for want of fuch attention frequently arife.

If the language of an agreement is not attended with any real ambiguity or uncertainty, and is not controuled or affected by an eftablished ufage or general principle of law, it is not reafonable to recur to an arbitrary construction founded upon an uncertain fuppofition of the intention of the contracting parties, or upon the course which they would probably have pursued if an accidental contingency had been foreseen (a). Thus, where two fucceffive tenants of a farm, having each a dispute with a third respecting the condition in which they had respectively left the hedges, it was agreed to refer all the difputes to arbitration, and the two jointly and feverally promised to perform the award; it was contended, that as the two had no joint intereft in refpect of that part of the fubject to which the award related, it was therefore an agreement in three parts, for which one was not answerable for the other. But Lord Kenyon faid, this is rather a hard cafe; perhaps if it had been stated to the two tenants at the time of the

(a) Quoties in verbis nulla eft ambiguitas, ibi nulla expofitio contra verba expreffa fienda en. Co. Lit. 147. a. Divinatio non interpretatio est, quæ omnino recedit a literâ. 3 I. 6. Į. 20. Baren.

D3

agreement

agreement, that each of them was to be answerable for the other, they would have hesitated before they figned the agreement; but the words of the agreement are too ftrong to be got over. reasonable that each fhould make fatisfaction for the time that each occupied; but by the terms of this agreement they have promifed jointly and severally, which makes them refponfible, the one for the other. Manfell v. Burredge, 7 T. R. 352.

It was

The fame principle was acted upon in a case which underwent 'a very great and repeated confideration respecting the effect of the common clause in a policy of insurance, that corn, fruit, &c. are warranted free from average, unless general, or the fhip ftranded.The fhip was ftranded in the courfe of the voyage, and also fuftained an average lofs; but such lofs was not occafioned by that circumftance, but by another accident of a different nature. On the one hand it was faid, that the introduction of the claufe was occafioned by the perishable nature of the commodities enumerated, and because it could not be distinguished whether the lofs was occafioned by that circumftance or by the accidents of navigation; that therefore the indemnity was restrained to an accident, in its nature so notorious as ftranding. On the other hand, the grammatical conftruction was infifted upon, and the claufe was confidered as a mutual conceffion to avoid enquiries into the particular facts or caufes of the deterioration, to disclaim all average lofs if there was no ftranding, and to attribute the lofs conclusively to it if there was. The court decided that the infurers were liable, and lord Kenyon, in the course of his judgment, faid, if a general provifion is made in any deed or inftrument, and it is there faid that certain things fhall be excépted, unless another thing happen, which gives effect to the general operation of the deed; if that other thing does happen, it destroys the exception altogether. Without inquiring into the reasons for introducing this exception, on the grammatical conftruction of the whole I have no doubt. If it had been intended that the underwriters fhall be only answerable for the damage that arifes in confequence of ftranding, a small variation of expreffion would have removed all difficulty. Barnet v. Kenfington, 7 T. R. 222. And in a fubfequent cafe also arifing upon policy of insurance, he said, the words here used are not equivocal, and we ought not to depart from them; it would be attended with great mischief and inconvenience, if in conftruing contracts of this kind we were not to decide according to the words ufed by the contracting parties; the grammatical conftruction of the words is the fafeft rule to go by. Bochem v. Sterling, T. R. 423.

And in a question respecting the construction of a lease, he said,

if I were to indulge in conjecture and speculation as to any fupposed intention of the parties not expreffed in the deed, I fhould have as little doubt (as upon the words); but I disclaim proceeding upon any fuch ground. It is fufficient for me to fay, that the leffee has not entered into the covenant infifted upon by the leffor; the parties have met here upon the conftruction of a folemn inftrument, in which their refpective rights and duties are clearly prescribed; and we cannot substitute any other contract in lieu of that into which they have entered. Gerard v. Clifton, 7 T. R. 676.

This subject has also been very well confidered in a case before the fupreme court of the United States of America, refpecting the conftruction of the treaty of peace with Great Britain. During the war the State of Virginia made a law, that all perfons indebted to British fubjects might pay the amount into the loan-office, which fhould be a good difcharge. By the treaty of peace it was provided that "creditors of either fide fhould meet with no lawful impediments for the recovery of their debts." The defendant had paid the money into the loan-office; but it was held that in confequence of the treaty of peace he was liable to the plaintiff. Judge Chace, in giving his opinion to that effect, faid, "In the construction of contracts, words are to be taken in their natural and obvious meaning, unless fome good reafon be affigned to fhew that they should be understood in a different fenfe. The univerfality of the terms is equal to an exprefs fpecification on the treaty, and indeed includes it. For it is fair and conclufive reafoning, that if any defcription of debtors or clafs of cafes was intended to be excepted it would have been specified. The indefinite and sweeping words made use of by the parties exclude the idea of any class of cafes having been intended to be excepted, and explode the doctrine of constructive discrimination. The article appears to come within the first general maxim of interpretation laid down by Vattel: "It is not permitted to interpret what has no need of interpretation. When an act is conceived in clear and precife terms, when the fense is manifeft, and leads to nothing abfurd, there can be no reason to refuse the sense which this treaty naturally presents. Το go elsewhere in fearch of conjectures, in order to restrain or extinguish it, is to endeavour to elude it. If this dangerous method be once admitted, there will be no act which it will not render useless. Let the brightest light fhine on all the parts of the piece, let it be expreffed in terms the moft clear and determinate; all this fhall be of no ufe, if it be allowed to fearch for foreign reafons in order to maintain what cannot be found in the sense it naturally prefents." Vatt. B. 2. c. 17. § 263. Ware v. Hylton, 3 Dallas'

Reports, 199. The whole of this cafe, and also of a case of Hamyltons v. Eaton, Martin, 79. in which the same point was decided by the circuit court of North Carolina, very well deferve attention, as containing a clear and instructive view of the nature and effects of treaties.

NUMBER VI.

(Intended to have been referred to, Vol. I. p. 72. N° 121.)

Of Injuries and Neglects.

The doctrine, that fathers and others shall be responsible for the acts of children under their care, which it was in their power to prevent, appears highly reasonable; but I am not aware of any cafe in which it is adopted in the English law.

With respect to the refponfibility of masters for the acts of their fervants, a fingular diftinction has been taken, that the mafter is only refponsible for the injuries of his fervant, which arise from negligence, and not for those which proceed from his wilful wrong. Salk. 441. Day v. Edwards, 6T. R. 648. McManus v. Crickett, 1 Eaft, 106. (a). An action cannot be maintained against a fervant, who hires labourers for his master on account of acts done by them; it must be either against the perfons committing the injury, or the master for whom the act was done. Stone v. Cartwright, 6 T. R. 412.

It seems extremely clear that with refpect to acts committed by fervants, without reference to the functions in which they are employed, no responsibility attaches to the masters. Mr. Juftice Buller, fpeaking in illuftration of the question, how far a man was bound by the act of an agent executing his commiffion, faid "There is a clafs of cafes which have been thought to bear extremely hard upon mafters, who are held liable for the misfeafo ance of their fervants, in driving their carriages against those of third perfons; but those cafes must have been determined on the ground, that it must be prefumed that the fervants have acted under the orders of their masters. But fuppofe a master ordered his fervant not to take his horfes and carriage out of the ftable, and the latter went in defiance of his master's orders, there is no authority which says that the master shall be liable for any injury done to another, by such act of the servant, though indeed if the mafter had ordered the fervant to go a particular journey, and in

(a) In this cafe, a very full and accurate view of the law upon the subject is taken by Loid Kenyon.

the

the course of it the latter did an injury to fome third perfon, the authorities say that the master is liable; Fenn v. Hamson, 3 T. R. 717. In Middleton v. Fowler, Salk. 282, it is laid down by Lord Ch. Justice Holt as a general position, that no master is chargeable with the acts of his fervant, but when he acts in the execution of the authority given him and Lord Kenyon having cited that opinion on the case above alluded to, of M’Manus v. Crickett, says; " Now when a fervant quits fight of the object for which he is employed, and without having in view his masters orders, purfues that which his own malice fuggefts, he no longer acts in pursuance of the authority given him, and, according to the doctrine of Lord Holt, his master will not be answerable for such act.”

A different principle was adopted in a cafe at the Exchequer Sittings, in which it was held that a fervant of a glass-house nowife employed in filling the pots, and not having any thing to do with the management of them, who threw in fome broken glass for the purpose of fecreting it from the mafter, fubjected the mafter to a penalty impofed upon putting materials into a pot without notice to the officer. The jury were told generally that the master was answerable for the acts of all the fervants employed in the manufactory, without adverting to the diftinction of the act's being totally foreign to the functions to which they were engaged. Attorney General v. Perrin, fittings after Michaelmas 1798. As to the liability of a fheriff for the acts of his officers, Lee Woodgate v. Knatchbull, 2 T. R. 148.

NUMBER VIL

(Referred to, Vol. I. p. 122.)

Of Mutual Agreements.

Where there are mutual agreements, it often becomes a question of importance whether they are mutual and independent, in which cafe either party is entitled to claim a performance from the other, or to recover damages for the non-performance, and it is no excufe to allege that he has himself been guilty of a breach in the performance of the agreement? 2d Whether they are conditions, and dependent, in which cafe the performance of the one, depends upon the prior performance of the other? Or, 3dly Whether they are mutual, and to be performed at the fame time, and in which, if one party is ready and offers to perform his part, he may maintain an action for the default of the other, although it is not certain

that