Verba

Words; language. Several Latin maxims begin with this word. Those we give relate chiefly to the construction of written instruments. Verba aocipienda sunt secundum subjectam materiam. Words are to be taken according to the subject matter. Verba aliquid operari debent. given should not be rejected. "A rule, in mixed interpretation, is to give all doubtful words or expressions that sense which makes them produce some effect. This effect must, in general, be a reasonable one; aud it must likewise be the same that the law-maker or the testator or the contractor intended to produce."

2 Ruth. Inst. 325.

Verba artis ex arte

Words of art from the art. The sense of a technical term is to be learned from its accepta^ tion in the art to which it pertains. Verba chartarum fortius accipiuntur contra proferentem. The words of writings are to be taken most strongly against the offering party. Because the author or subscriber of an instrument has full opportunity to frame his language in it according to his true intention and so as to protect his rights, while the party receiving it has but limited means of controlling its phraseology, one established principle of construction is that doubtful language is to be resolved against the one making use of it, aud in favor of the one to whom it is given. But the application of the principle is subject to important limitations; and it is not applicable to all instruments alike. See Trayn. Max.; Whart. Max. Another form, broader and more liable to doubt, exception, or limitation, is: verba fortius accipiuntur contra proferentem. Words are taken most strongly against the offering party. This form purports to extend the principle to all language; while the other confines it to documents, and, if chartarum is taken in a strict sense, to instruments of the more solemn kind. The governing principle under this maxim, in regard to contracts, as against the party making them, seems to be, that he who makes an instrument should take care so to express his own liability as not to bind himself bej'ond his intention; and that the party who receives an instrument shall have a construction put upon it in his favor, because the words of the instrument are not his, but those of the other party. A distinction is suggested between an ordinary contract and a guaranty, the latter beuig, not a contract by the party for payment of his own debt, or on his own behalf, but for the debt and on behalf of a tliird person; in which case the duty is on the party taking the guaranty to see that it is so exdeed-poll and an indenture, the former being executed by the grantor alone, and the words used his only; the latter, by both parties, and the words the words of both. t Vhart. Max. Verba cum effectu accipienda. Words are to be taken effectively. In construing deeds, contracts, or writings, the words used are to be read in such a manner as is consistent with giving them some effect; they are supposed to mean something and to have some effect, from the fact of their having been used. If two interpretations or constructions of the words are possible, that one is preferred which will enable the words to be read as meaning something, rather than that which would make them useless or insensible.

Trayn. Max. 609.

Verba generalia geueraliter sunt intelligenda. General terms are to be construed generally. Verba generalia restringitur ad habilitatem rei vel personse. General words are restricted according to the subject or person. General language is to be understood with reference to the particular subject-matter. A bond upon condition is a forcible illustration of the maxim, the bond itself being absolute, controlled, however, by the condition. As, where a bond was given to an employer, conditioned for the due accounting by a clerk, with a recital that he was engaged at a salary of ilOO a year, the salary being subsequently changed to a payment by commission, it was held that the recital controlled the condition, and that the obligor was discharged by the change of mode of remuneration. Whart. Max. Verba illata in esse videntur. Words referred to are considered as incorporated. Verba intention! debent inservire. Words ought to subserve intention. The intentioil of parties to instruments will prevail in construction, against the literal meaning of the language. The application of this principle varies with the differing character of various instruments. In dealing with ordinary simple agreements, and still more when wills are in question, the rule is carried very far; the intention of the writer, if honest and lawful, is the chief guide. When specialties or negotiable instruments are under examination, there is greater reason for adhering to the settled technical construction of words, and this often prevails over the still further qualification of the doctrine is obsei-ved. The nature of the suit and limits of the jurisdiction have an important influence in determining the effect of language of a court; while constitutional rules and usages of legislation will often override the intent of the legislator, as indicated in a statute. Verba ita sunt intelligenda, ut res magis valeat qnam pereat. Words are to be so construed that the affair may prevail rather than fail. The language of an instrument is to be so construed that the transaction may succeed, may have effect and operation, rather than so that it shall be nullified. This rule runs, as it were, counter to the preceding; each of the two limits the application of the other. A striking instance of disregarding the undoubted intention of the writer, in order to give effect to his instrument, is that of Russel V. Lanstaffe, 1 Fish. Dig. 1141; Bayl. Bills, 6, in which defendant gave a written acknowledgment of money borrowed, in these words: "Borrowed of J. S., 101., which I promise not to pay." The intent doubtless was to palm off an instrument which could not be enforced; but the court, considering that the instrument, as expressed, was wholly nugatory, and that it ought to be construed so as to have some sort of effect or operation, if possible, adjudged that the word not might be stricken out as surplusage, thus leaving a valid note. Similarly in Allan v. Mawson, 4 Campb. 115, where a bill of exchange was sued, which read, instead of "to Sir J. P." (the drawee), "at Sir J. P.;" but the " at " was in vei-y small letters, hidden in the hook of the S of the " Sir," the judge left it to the jury to say whether this was done to deceive purchasers of the bill; if so, the "at" might be rejected and the bill enforced as an ordinary bill of exchange. In other words, the. court, in both cases, construed the instrument directly contrary to what the writer intended, on the principle that it must be treated so as to make it operative rather than nugatory. Verba relata hoc mazime operantur per refereutiam, ut in eis iuesse This rule applies as well to oases vphere a particular clause in an instrument refers to another clause in the same Instrument, as to parcels, schedules, plans, &c., as it does to cases where reference is made in the instrument to some deed, plan, schedule, index, will, &c., altogether disconnected from the instrument in which the reference thereto is made. The following examples will show the meaning of the maxim: A deed referring to furniture, fixtures, machinery, &c., in a schedule, being a totally distinct document, or to trusts declared in another deed; a deed whereof one clause, for brevity, refers to another clause with a mutatis mvtandis; and affidavits referring to a deed or other document, — are all within the rule. Whan. Max. Verba sunt semper accipieuda in mitioii sensu. Numerous early decisions are to the ef Eect that, in slander suits, the words are not actionable if they will bear an innocent construction. Later cases have said that this rule is exploded. Mr. Townshend considers that the supposed change is only a rule of construction of the declaration.