(n) Cleave v. Jones, 20 L. J. (Exch.) 238; 6 Exch. 573, S. C. in Exch. Ch.
1 Upon the effect of payment of part, either principal or interest, see Arnold v. Downing, 11 Barb. 554; Smith v. Simms, 9 Ga. 418; Evans v. Smith, 34 Me. 33; Jones v. Jones, 21 N. H. 219; Whipple v. Stevens, 22 lb. 219; Sibley v. Phelps, 6 Cush. 172; Bell v. Crawford, 8 Grat. 110; Biscoe v. Stone, 11 Ark. 39; Wood v. Wylds, lb. 754; Chambers v. Walker, 4 Rich. 548; McCullough v. Henderson, 24 Miss. 92; Anderson v. Robertson, lb. 389; Carroll v. Forsyth, 69 111. 127; Merritt v. Day, 38 N. J. 32; Torrence v. Strong, 4 Or. 39; Anderson v. Baxter, lb. 105; English v. Wathen, 9 Bush, 387; U. S. v. Wilder, 13 Wall. 254; Hopkins v. Stout, 6 Bush, 375; Egery v. Decrew, 53 Me. 392; Dyer v. Walker, 54 lb. 18; Thorn v. Moore, 21 Iowa, 285; Eaton v. Gillet, 17 Wis. 435. A part payment made on Sunday will not take the debt out of the statute: Clapp v. Hale, 112 Mass. 368 An acknowledgment or new promise made on Sunday will remove the bar: Thomas v. Hunter, 29 Md. 406. A partial payment on a joint and several promissory note, by one of several makers, will not prevent the running of the statute as to the other makers: Hunter v, Robertson, 30 Ga. 479; Hance v. Hair, 25 Ohio St. 349; contra, Merrill v. Day, 38 N. J. 32; Block v. Dorman, 51 Mo. 31; Pitts v. Hunt, 6 Lans. 146; Corlies v. Fleming, 30 N. J. 349. And see also Bogert v. Vermilya, 10 Barb. 32; Ellicott v Nichols, 7 Gill, 85; Whipple v. Stevens, 22 N. H. 219; Balcom v. Richards, 6 Cush. 360; Reid v. McNaughton, 15 Barb. 168; Tillinghast v. Nourse. 14 Ga. 641. A part payment derived from a collateral security is no1 sufficient: Harper v. Fairley, 53 N. Y. 442.-S.
Lastly, if the accruer of the cause of action have been fraudulently concealed by the person liable, it seems now that in most cases the statute will not begin to run till the discovery of the fraud. *:This was not the doctrine of the Common Law as laid down in the most recent cases; for there it was held that the accruing of the cause of action being the point from which the time begins to run within which an action may be brought, even the concealment of the accruing of the cause of action did not prevent this time from beginning to run from the same point, and that even the fraudulent concealment of the fact would not prevent the period of limitation from elapsing (p). In the Courts of Chancery (q), in most cases, this injustice would have been prevented,-a difference in the administration of the law, arising from the different modes of administering relief which prevailed in those Courts. Since the Judicature Acts came into force the doctrine of the latter Courts has, as might have been expected, prevailed (r). Accordingly, a majority of the Court of Appeal (affirming the judgment of Field, J., in the Court below) has recently held that in an action to *recover by way of damages money lost by the fraudulent representations of the defendant, a reply to the defence of the Statute of Limitations that the plaintiff did not discover and had not reasonable means of discovering the fraud within six years before the action, and that the existence of such fraud was fraudulently concealed by the defendant until within such six years, was held good (s).
(o) See Inglis v. Haigh, 8 M. & W.769; Cottam v. Partridge, 4 M. & Gr. (43 E. C. L. R.) 271; Knox v. Gye, L. R. 5 H. L. 656; 42 L. J. (Ch.) 234 (H. L.).
(p) Imperial Gas Co. v. London Gas Co., 23 L. J. (Ex.) 303; 10 Ex. 39, 8. C. See Hunter v. Gibbons, 26 L. J. (Ex.) 1; 1 H. & N. 459.
(q) Blair v. Bromley, 5 Hare, 542; 16 L. J. (Ch.) 105; affirmed on appeal, 2 Phil. 354.
There are a few other rules applicable alike to every species of contract, and which it is convenient to notice in a work treating like this of the general principles of the law of contracts. These are the rules according to which contracts are construed in courts of justice, and the student will probably find them deserving of much interest when he observes that they are not merely conventional rules of law, but are the canons by which all writings of every description are construed, and by which the meaning and intention of men are ascertained (t), when that meaning and intention are indicated not by their words or writings only, but by their actions and conduct also.1
(r) See 36 & 37 Vict., c. 66 (Judicature Act, 1873), s. 24, as to the power of the High Court and Court of Appeal in all cases to give equitable relief and 'recognize equities. Moreover by sect. 25, sub-s. 11, of the same Act, the general rule is that where " there is any conflict between the rules of Equity and the rules of Common Law with reference to the same matter, the rules of Equity shall prevail."
(s) Gibbs v. Guild, 9 Q. B. D. (C. A.) 59; 51 L. J. (Q. B.) 313; affirming 8 Q. B. D. 296; 51 L. J. (Q. B.) 228.
(t) Doe d. Hiscocks v. Hiscocks, 5 M. & W. 363; ante, p. *50.
1 White v. Booker, 4 Mete. (Ky.) 267; Springinsteen v. Samson, 32 N. Y. 538
It is obviously of the utmost importance that these rules of construction should he applied with consistency, and indeed, as far as practicable, with uniformity. In order to secure the attainment of *these objects, the construction of all written instruments belongs to the Judges, who may reasonably be expected to apply with uniformity the rules with which they are by study and experience familiar, and not to the jury, whose habits of mind and experience are necessarily different and various, and who, in many cases not being familiar with the rules, and in all cases practically unacquainted with their application, cannot reasonably be expected to apply them with uniformity.
The construction of all written instruments, therefore, belongs to the court alone (u), 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 to be construed as words of art or phrases of commerce, and no surrounding circumstances 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 of redress in a court of appeal; but a misconstruction by the jury cannot be set *right at all effectually. A very good example of what is here said, as well as a clear statement of the rules of construction which the Judges apply, is furnished in the case of Simpson v. Margitson (x); where the plaintiff, an auctioneer, had been employed to sell an estate upon the terms of a letter from the defendant to him, which contained these words:- "the terms upon which the sale of the North Cove estate is offered to you are £1 per cent, upon the purchase-money; that to include every expense, and to be paid if sold by auction or within two months after; half per cent, if not sold at auction, or within two months after upon a reserved price." The defendant contended, that month in temporal matters meant lunar month; unless either from the context or from the usage in a trade, business, or place, it is made to appear that the parties intended another meaning; and nothing of the sort appearing in that case, that it was the duty of the Judge to have construed the contract and decided against the plaintiff. "If the context," said the Court, "shows that calendar months were intended, the Judge may adopt that construction (y). If the surrounding circumstances at the time when the instrument was made show that the parties intended to use the word not in its primary or strict sense, but in some secondary *meaning, the Judge may construe it from such circumstances according to the intention of the parties (z). If there is evidence that the word was used in a sense peculiar