(u) Nielson v. Harford, 8 M. & W. 823. See Smith v. Thompson, 8 C. B. (65 E. C. L. R.) 44; Skull v. Glenister, 33 L. J. (C. P.) 185.
703; Hunter v. Anthony, 8 Jones, 385; Rose v. Roberts, 9 Minn. 119; Kar-muller v. Krotz, 18 Iowa, 352; Salmon Falls Co. v. Portsmouth Co., 46 N. H. 249; Peckham v. Haddock, 36 111. 38; Chicago v. Sheldon, 9 Wall. 50; Caldwell v. Layton, 44 Mo. 220; People v. Gosper, 3 Neb. 285. When in a contract words of a doubtful meaning or application are used, the practical construction given to them during a series of years by the parties to the contract should prevail: St. Louis Gaslight Co. v. St. Louis, 46 Mo. 121; Reading v. Gray, 37 N. Y. (Super. Ct) 79; Stapenhorst v. Wolff, 35 lb. 25.-s.
(x) 11 Q. B. (63 E. C. L. R.) 23.
(y) Lang v. Gale, 1 M. & Sel. Ill; Regina v. Chawton, 1 Q. B. (41 E. C. L. R.) 247.
(z) Goldshede v. Swan, 1 Ex. 154; Walker v. Hunter, 2 C. B. (52 E. C. L. R.) 321; Bacon's Maxims, Reg. 10; Mallan v. May, 13 M. & W. 511; Becfc-ford v. Crutwell, 1 M. & R. 187. 540 to a trade, business, or place, the jury must say whether the parties used it in that particular sense (a). If the meaning of a word depends upon the usage of the place where anything under the instrument is to be done, evidence of such usage must be left to the jury (b). Also, the jury may have to give the meaning of some technical words. But the present is not within either of the above principles; nor can we find any authority for saying that the conduct of the parties to a written contract is alone admissible evidence to withdraw the construction of a word therein, of a settled primary meaning, from the Judge, and to transfer it to the jury."
It would have appeared needless to remark that the same sense is to be put upon the words of a contract in an instrument under seal, as would be put upon the same words in any instrument not under seal, if the question had not actually been raised in argument; for the same intention *will be expressed by the same words in a contract in writing whether with or without seal. Nor can it signify in what court the instrument is construed; for the question, what is the meaning of the contract, cannot be affected by the question, what is to be the consequence of the contract, or what the remedy for the breach, or by any other matter in which the practice of the courts may differ. The rule of construction, therefore, must be the same, whether in a civil or a criminal court, or whether in a court of law or equity.
In the first place, it is the most important of all the rules of construction, that the whole of the agreement is to be considered. This is so reasonable and clear, that no explanation is required of it; for obviously it cannot be the intention of the parties to an agreement with stipulations or qualifications, that some of them should be altogether disregarded, and a part of the agreement magnified into an equality with the whole; but, on the contrary, such a meaning is to be given to particular parts as will, without violence to the words, be consistent with all the rest, and with the evident object and intention of the contracting parties.
(a) Smith v. Wilson, 3 B. & Ad. (23 E. C. L. R.) 728; Grant v. Maddox, 15 M. & W. 737; Myers v. Sari, 3 E. & E. 306; 30 L. J. (Q. B.) 9.
(b) Robertson v. Jackson, 2 C. B. (52 E. C. L. R.) 412; Bourne v. Gatliff, 11 Ul. & F. 45. See Hitchin v. Groom, 5 C. B. (57 E. C. L. R.) 515.
The case of Monypenny v. Monypenny (c), decided by Lord Chancellor Ghelmsford, contains *one of the most luminous judgments to be found in the books on this most important rule, and deserves so much attention that I have here stated it at some length. Phillips Monypenny vested a term of 100 years in trustees for the better security of the payment of a rent-charge, being his wife's jointure. Phillips Monypenny died in 1841. After his death it was discovered that of the principal part of the property charged with the annuity, Phillips Monypenny was only tenant for life, and on his death it became another's. As the charge upon the land of which he was such tenant ceased, it became material to inquire whether there was any covenant in the deed to bind his personal representatives. One of the Vice-Chancellors, assisted by two of the Common Law Judges, decided that there was no such covenant, and the case was reconsidered, on appeal, by Lord Chancellor Chelmsford.
"The learned barons," said the Lord Chancellor, "who assisted the Vice-Chancellor in putting a legal construction on the deed, were clearly of opinion that there were no words in it creating a covenant. They
(c) 28 L. J. (Ch.) 303; 31 L. J. (Ch.) 269; and 9 H. L. C. 114; M'Intyre v. Belcher, 32 L. J. (C. P.) 254; 14 C. B. (N S.) (108 E. C. L. E.) 654. 542 examined the recital, grant, and the power of distress in succession, and dismissed each of them in its turn, with the remark that it did not operate as a covenant. Even the strong and appropriate words used in the creation of the power to distrain did not shake their opinion; for as to them they say, 'Nor do we think that the *words used in the creation of the power to distrain, extensive as they are,- "covenants, grants, and agrees, that it shall be lawful when the rent-charge is in arrear for the grantee to distrain on the premises,"-are an express covenant that he shall have power to do so. We think that "covenants and agrees" means no more than "grants." Then the learned Judges proceeded to inquire whether there is any implied covenant arising out of the general words used by the grantor, and properly observe, that such a covenant must be a covenant at law, and that there cannot be a covenant implied from such words; that the covenantor had an equitable estate; and they conclude that the deed contains neither an express nor an implied covenant, of which the claimant can avail herself to enforce the payment of her jointure (i. e., the charge on the land). After the most careful consideration of every part of the deed, I cannot bring my mind to a similar conclusion. In the course of the argument of the counsel against the claim, I have been earnestly requested to examine the whole scheme of the deed, in order to be enabled to put a satisfactory construction upon those parts of it which involve the question to be decided. Undoubtedly, as Sheppard says (Touchstone, 87), in the construction of all parts of all kinds of deeds, amongst the rules to be universally observed is one, 'that the construction be made upon the entire deed, and that one part of it doth help to *ex-pound another, and that every word (if it may be) may take effect and none be rejected.' Where words are ambiguous, or the intention is not manifest and plain, it is useful and necessary to recur to other parts of the deed for interpretation : but this mode of construction is frequently invoked for the purpose of giving a different meaning to words from that which they ordinarily bear; and on the present occasion the assistance of the whole scheme of the deed seems to be used, not that every word may take effect, but for the purpose of weakening the appropriate words. It is unnecessary, in my opinion, to resort to any more of the deed, except to observe that the marriage consideration runs through every part of it. It was clearly to Phillips Monypenny's interest that Mrs. Monypenny should have a rent-charge out of his estate, and he believed himself to be the absolute owner of it. The deed therefore contains a recital that, 'upon the treaty for the marriage he had agreed to secure to her an annual sum or rent-charge, to be issuing and payable out of the manors and other hereditaments charged therewith, and of or to which he the said Phillips Monypenny is entitled or seised in fee simple;' and in the granting part, 'he gives and grants the annual sum or rent-charge to be issuing out of certain manors and lands, and generally out of messuages, lands, tenements and hereditaments in the several parishes in the county of Kent, of or to which he or any person or persons in trust for *him is or are seised or entitled for an estate of inheritance at law or in equity.' It is said that the alternate words in the recital and in the 'grant' express an uncertainty as to the nature of the title of Phillips Monypenny to the estates charged: and that, according to the case of Right d. Jefferys v. Bucknell (d), they created no estoppel against Phillips Monypenny.