Register & Webb v. Spencer

Bowie, C. J., delivered the opinion of this Court. This appeal involves the true construction of a deed of composition with creditors, made by Murray & Hazlehurst to Messrs. Abbott, Keyser and Rogers, on the 18th of February, 1861. After collecting all outstanding debts, and selling and disposing of the property conveyed to them, the trustees are required to apply the proceeds among certain classes of creditors as follows, viz : 1st.

To discharge the interest due on all mortgages, together with the ground rent, taxes and insurances accruing or incurred while the property was in the possession of the trustees. 2nd. To pay wages or hire of all agents or workmen due and accruing during the continuance of the trust. 3rd. To pay out of the surplus “ all borrowed money and accommodation notes,” and then all notes which were originally given in the course of business and have been extended by the holders thereof, etc. 4th. To pay individual creditors of partners out of their individual estates. 5th.

To pay to such creditors as shall within sixty days signify their assent and exeéute a release. The appellee filed his claim under this deed in the form ⁵²³ of an open account against Messrs. Murray & Iiazlehurst, debiting them as follows : 1857, March 2nd. To this amount of money borrowed of me by them......................... $10,000 Interest until paid......................................... 1859, Nov. 19th.

This amount of money borrowed of me by them............................. 351 Interest until paid......................................... To which is annexed the affidavit of the creditor and one of his debtors, “ that the account is just and true.” This claim was allowed in account 0 as a claim for borrowed money entitled to preference as such, under the third class of crediting. To which the appellants excepted, contending that said claim should be classified with the general creditors of Murray & Hazlehurst. This is purely a question of interpretation and construction. “ The terms of every written instrument are to be understood in their plain, ordinary and popular sense, unless they have acquired, by known usage, a peculiar sense, or unless the context points out that in the particular instance, in order to effectuate the immediate intention of the parties, it should be understood in some other and peculiar sense.” 1 Greenlf.

Ev., sec. 278. In Broom’s Legal Maxims, upon the authority of a very eminent Judge, it is said: “The true interpretation of every instrument, being manifestly that which will make the instrument speak the intention of the party at the time it was made, it has been always considered an exception from, or perhaps to speak more correctly, not so much an exception from as a corollary to the general rule above stated, that where any doubt arises upon the true sense and meaning of the words themselves, or any difficulty as to their application under surrounding circumstances, the sense and meaning of the language may be investigated and ascertained by evidence, dehors the instrument itself, ⁵²⁴ for both, reason and common sense agree that by no other means can the language of the instrument be made to speak the,real mind of the party.” Tindal, C. J., 5 Scott N. R., 1037, 1038. The question then recurs, is there any doubt about the true sense of the words of the third clause. The words, “all borrowed money,” would seem at first view incapable of misconstruction.

They include in ordinary, popular sense all sums of money loaned by a creditor to a debtor without regard to the mode or the .existence of any security or evidence of indebtedness. If there had been money borrowed, secured by mortgage, bond, bill or note, or without any such security, the comprehensive monosyllable all would embrace it, unless there is in the deed some qualifying clause. We look in vain to the' context for such a limitation. It is then incumbent upon the exceptant to establish by clear, satisfactory proof that the terms used have acquired and were used in a technical or peculiar sense.

Without excluding the evidence of usage to explain words of equivocal import in mercantile and other instruments, the decided tendency of the most eminent Judges is