quently be maintained upon the instrument for the non-erection of the mill. (ƒ) In an action on a bond with a penalty of 2,000l., it appeared that the condition of the bond was to "render a true, just, and perfect account in writing" of all sums received, and it was held, that this condition was broken by the obligor's neglect to pay over such sums, as it never could be meant that so large a penalty should be taken merely to enforce the making out of a paper of items and of figures. (g) If an important word has clearly been omitted by mistake, and it appears from the general context of the instrument, and the light thrown thereon by surrounding circumstances, and the nature of the transaction, what the parties really meant and intended, the courts, in furtherance of the obvious intent, will read and construe the deed as if the word had been duly inserted. Thus, where the obligor in the obligatory part of a money bond, purported to have bound himself in seven thousand seven hundred of lawful money of Great Britain, without mentioning the description of money, it was held, that as it was the obvious. intention of the parties, from the general context of the instrument, that the obligor should be bound in a penalty calculated in pounds sterling, the deed must be read as if the word pounds had been originally inserted; (h) and the same principle of construction was adopted, where the word hundred had evidently been left out by mistake. (i) So, where the name of the obligee of a bond was omitted in the obligatory part of the instrument, and it did not consequently there appear to whom the obligor had become bound, but it afterwards appeared, from the condition, who it was, the bond was held good by reference to the condition, and was construed as if no such clerical error had occurred. (k) So, where the name of the grantor had been omitted in the operative part of a grant, but it clearly appeared from another part of the deed who he was, the deed was held to be valid, and was carried into full operation. (7) A deed, therefore, shall not, in such cases, be construed to be of no effect, nam benignæ faciendæ sunt interpretationes chartarum ut res magis valeat quam pereat. (m) Admissibility of parol evidence of custom and usage.-Customary (f) Sampson v. Easterby, 9 B. & C. 505; 4 M. & R. 422, s. c. Saltoun v. Houston, 1 Bing. 433; 8 Moore, 546, s. c. (g) Bache v. Proctor, 1 Doug. 382. (h) Coles v. Hulme, 8 B. & C. 568; 3 M. & R. 86, s. c. (i) Waugh v. Russell, 1 Marshall, 214. (k) Langdon v. Goole, 3 Lev. 21; 2 Rolle Abr. 148. Uvedale v. Halfpenny, 2 P. Wms. 151. Elliott's case, East, P. C. 951. (1) Say (Lord) and Sele's case, 10 Mod. 46; 1 Brown's parl. cas. 379, s. c. (m) See Platt on Covenants, chap. 2, and Bacon's Abr. title (covenant.) rights and incidents universally attaching to the subject matter of the contract in the place and neighbourhood where the contract was made, are impliedly annexed to the written language and terms of the contract, unless the custom is particulary and expressly excluded. (n) Parol evidence of custom and usage, consequently, is always admissible to enable us to arrive at the real meaning of the parties who are naturally presumed to have contracted in conformity with the known and established usage. Thus the custom of the country, in regard to the claims of an outgoing tenant of a farm will prevail, although there be a lease under seal regulating the terms of the holding, but not containing stipulations as to the terms of quitting, which can exclude the custom. (o) The customary right of a tenant to the away going crop, to compensation for work and labour, seed, and materials employed in manuring, tilling, and sowing the land, also the customary right of a landlord or reversioner to a heriot on the death of a tenant for life, and all customs and usages respecting the cultivation of the soil and the mode of husbandry, will impliedly prevail, if the lease is silent respecting them, and parol or oral evidence is consequently admissible to superadd the usage and customary right to the contract between the parties, such right and usage being recognised by law as incident to the subject matter of the contract, and consequential upon the taking of the lands. (p) Exclusion of the custom by express words.-But parol evidence of custom and usage is not admitted to contradict or vary express stipulations and provisions restricting or enlarging the exercise and enjoyment of the customary right. Omissions may be supplied by the introduction of the custom, but the custom cannot prevail over and nullify the express provisions and stipulations of the deed. (q) If a lease, for example, contains an express provision as to the disposal of the away going crop the custom in respect thereof is excluded. (r) If it specifies and regulates the particular allowances that are to be made by an incoming to an outgoing tenant, evidence of usage and custom as to those allowances is inadmissible. (s) Influence of custom upon the meaning and interpretation of words. (n) In contractibus tacite veniunt ea quæ sunt moris et consuetudinis. Domat, 1. 1, tit. 1. (0) Holding v. Pigott, 5 M. & P. 427; 7 Bing. 745, s. c. Hutton v. Warren, 4 M. & W. 475, 476. (p) Wigglesworth v. Dallison, 1 Doug. 201. Senior v. Armitage, Holt, N. P. C. 197. Dalby v. Hirst, 3 Moore, 536; 1 B. & B. 224, s. c. White v. Sayer, Palm. 211. (q) Parkinson v. Collier, Parke Ins. 314. Roxburghe v. Robertson, 2 Bligh. 166. Blackett v. R. Ex. Ass. Compy., 2 C. & J. 244; 2 Tyr. 266, s. c. Boraston v. Green, 16 East, 71. (s) Webb v. Plummer, 2 B. & Ald. 746. Roberts v. Barker, 1 C. & M. 808; 3 Tyr. 945, S. C. -Custom and usage have a powerful influence upon the interpretation of contracts, and determine to a great extent the meaning of the words used therein. If by the known usage of trade or by custom, a word has acquired, in respect of the subject matter of the contract, a peculiar sense and meaning different from the ordinary popular sense and meaning, parol evidence is admissible to show that the parties used the word in its customary trade acceptation, and not in the ordinary popular sense. (t) Thus, the word thousand in certain trades comprehends a larger number of units than it does in its ordinary acceptation. In the herring trade, for example, six score herrings go to the hundred, and sixty to the thousand; (3 Ed. 3, stat. 2, cap. 2;) and parol evidence is admissible consequently, to show that the word thousand, when applied to herrings, in the contracts of herring dealers means twelve hundred. In a lease of a rabbit warren, parol evidence was admitted to show that by the custom of the country where the lease was made, in taking an account of the rabbits on a rabbit warren, the numbers were computed at one hundred dozen to a thousand, and the word "thousand" in a lease as applied to rabbits was consequently construed to mean one hundred dozen or twelve hundred. (u) So, where an insurance was effected "to any port in the Baltic," evidence was admitted to show that the Gulf of Finland was considered by universal custom and consent amongst merchants and in mercantile contracts to be within the Baltic, though the two seas were treated as distinct by geographers. (x) And in a lease of a coal mine evidence was admitted to show that the word "level" in mining districts had a meaning different from the ordinary popular meaning, and that the word was used by the parties to the contract in the sense in which it is ordinarily employed by miners. (y) OF COVENANTS. No precise form of words is necessary to create or constitute a covenant. The words in a contract under seal, "I will be answerable," or "I will be accountable" to A. for 107., or "I am content to give A. 107. at Michaelmas," amount to a covenant to pay the money, (z) and words used in the future tense, unconnected with precedent words of agreement, will in themselves be sufficient to constitute an express covenant, such as the words in a lease," and the said W., his executors, &c., shall sufficiently repair, &c., (a) and an action of covenant will lie on (t) 4 East, 134; 6 N. & M. 94; 5 Ad. & E. 302; 1 Rolle Abr. 86, pl. 1, 525, pl. 7; 14 Law, J. Rep. N. S. (Excheq.) 48. (u) Smith v. Wilson, 3 B. & Ad. 728. (x) Udhe v. Walters, 3 Campb 16. See also Brough v. Whitmore, 4 T. R. 210. Anderson v. Pitcher, 2 B. & P. 168. (y) Clayton v. Gregson, 4 N. & M. 602; 1 Harrison, 159, s. c.; 5 Ad. & E. 302, s. c. (2) 3 Leon. 119, pl. 169. Brice v. Carre, 1 Lev. 47; 1 Keb. 155, s. c. (a) Brett v. Cumberland, Cro. Jac. 399, 521. general words of contract and agreement contained in a deed, although the parties profess not to contract "by way of covenant," as where they "resolved and agreed and did, by way of declaration, and not of covenant, spontaneously and fully agree," Lord Eldon said it was nonsense to talk of agreeing and declaring (under seal) without covenanting. (b) And whenever a contract under seal contains words clearly purporting an agreement. to do any act, whether in the way of covenant, provision, or exception, or by necessary implication, such words amount to a covenant in the eye of the law, and an action of covenant may consequently be maintained upon them. (c) A lessee covenanted that he would at all times during the term for which the lands and premises were demised to him, plough, sow, manure, and cultivate them, "except the rabbit warren and sheep-walk, in a regular and due course of husbandry, according to the custom of the country," and it was held that, as the parties clearly meant by the exception that neither the rabbit warren nor the sheep-walk should be ploughed, the exception ought to be construed as a covenant that it should not be done, and that an action of covenant consequently was maintainable for the doing of it. "By whatever words," observes Tenterden, C. J., " we collect an agreement that a thing should not be done, we collect enough to make an action of covenant maintainable for the doing of it." (d) So when it was agreed that a lessee should have "conveniens lignum non succidendo arbores," it was holden that the lessor might have an action of covenant against him on these words for cutting down the trees. (e) Words of recital in a deed will constitute an agreement between the parties upon which an action of covenant may be maintained. "As if I recite by my deed that I am possessed of such an interest in certain land, and assign it over by the some deed, and thereby covenant to perform all agreements in the deed, if I be not possessed of such an interest, the covenant is broken. (f) Thus, where a termor for ninety-nine years, if three lives should so long continue, recited his interest, and that one life was in being, and assigned his term, it was adjudged that this recital amounted to a covenant that the life continued. (g) So the recital in a deed of a previous agreement to do a certain act, amounts to a covenant in the deed for the performance of it, for the recital operates as a solemn confirmation of the "agreement and intent precedent." () 3 Bulstr. 163, s. c. (b) Ellison v. Bignold, 2 J. & W. 510. (c) Tenterden, C. J., Sampson v. Easterby, 9 East. 514. (d) Duke of St. Albans v. Ellis, 16 East. 352. (e) March 9, p. 22. Dy. 19, b. pl. (115.) Stevenson's case, 1 Leon. 324. (f) Gawdy, J., Severn & Clark's case, 1 Leon. 122. (g) Best v. Brett, cited in Holles v Carr, 3 Swanst. 649. (h) Barfoot v. Freswell, 3 Keb. 465. Words of proviso and condition will also be construed as an express covenant, when such a construction is necessary to give effect to the apparent intention of the parties. Thus, where a conveyance was made by the plaintiff of an incorporeal right to the defendant, provided that out of the first profits the defendant should pay the plaintiff 5007., it was holden that an action of covenant might be maintained on these words of proviso for the non-payment of the money. (i) So, where a lease was granted on condition that the lessee should keep and leave the demised premises, at the end of the term, in as good plight as he found them, it was holden that an action of covenant would lie for a breach of this condition. (k) Where, however, the proviso or condition is by way of qualification of the covenant, or defeazance of the deed or of the estate and interest thereby created, and not in the nature of an agreement; as if a lease be granted, provided and on condition that the lessee collect and pay the rents of the other houses of the lessor, an action of covenant is not maintainable. (7) If lessee for years covenants to repair, "provided always and it is agreed that the lessor shall find great timber, &c.," a covenant is created on the part of the lessor to find the timber by reason of the word "agreed;" but if the lessee had covenanted to repair provided the lessor found the timber, without the word "agreed," the proviso would not have amounted to a covenant on the part of the lessor, but to a qualification only of the covenant of the lessee. (m) The lessee covenanted that he would at all times during the continuance of his lease fold his flock of sheep which he should keep upon the demised premises upon such parts where the same had been usually folded. It was held that this amounted to a covenant to keep a flock of sheep upon the premises, and that it would consequently be no answer to an action upon the covenant for the defendant to say that he kept no sheep, and therefore had none to fold. (n) A landlord demised certain limestone quarries and lime-kilns to a tenant, who covenanted, amongst other things, that he would, at all times and seasons of burning lime, supply the lessor and his tenants with lime at a stipulated price, for the improvement of their lands and the repair of their houses; and it was held that this amounted to a covenant to burn lime at such seasons, and that it was not a good defence to plead that there was no lime burned on the premises out of which the lessor could be supplied. (0) (i) Clapham v. Moyle, 1 Lev. 155; 1 Keb. 842, 860, 897, s. c. See also Parker v. Gravenor, 2 Dy. 150 a.; and 19, pl. 38, s. c. (2) 1 Rolle, Abr. 518; Bac. Abr., Covt. (A). (1) Geery v. Reason, Cro. Car. 128. Simpson v. Tetterell, Cro. Eliz. 242. (n) Webb v. Plummer, 3 B. & Ald. 749, 751. (0) Earl of Shrewsbury v. Gould, 2 B. & Ald. 487. |