The rules of Lord Bacon rest entirely upon the principle that the law will not make, nor permit to be made, for parties, a contract other than that which they have made for themselves. They can have no other basis than this; and so far as they carry this principle into effect they are good rules, and no further. For it is this principle which underlies the whole law of construction, and originates and measures the value of all its rules. Thus, if a contract be intelligible, and evidence shows an uncertainty, not in the contract, but in its subject-matter or its application, other evidence which will remove this uncertainty is admissible. (g) But if a contract is not certainly intelligible * by itself, it may be said that evidence which makes it so must make a new contract; for one that is intelligible cannot be the same with one that is unintelligible: and therefore the evidence is not admissible. But this argument must not be carried too far, for it is not always applicable without much qualification. What indeed is the meaning of uncertainty? If words of a foreign language are used, the contract is uncertain until they are interpreted; if words which are merely technical, then it is uncertain until experts have given their meaning; if words which are applicable to two or three different things or persons, then it is uncertain until the one thing or person is clearly pointed out. Now, where does the law stop in this endeavor to remove uncertainty? We answer, not until it is found that the contract must be set aside, and another one substituted, before certainty can be attained. In other words, if the contract which the parties have made is incurably uncertain, the law will not or rather cannot enforce it; and will not, on the pretence of enforcing it, set up a different but valid one in its stead. It will only declare such a supposed contract no contract at all; and will leave the parties to the mutual rights and obligations which may then exist between them. But, on the other hand, the law will not pronounce a contract incurably uncertain, and therefore null, until it has cast upon it all the light to be gathered, either from a collation of all the words used, or from all contemporaneous facts which extrinsic testimony * establishes. (h) If these make

(f) Bac. Max. Reg. 28.

\g) "For the purpose of applying the instrument to the facts, and determining what passes by it, and who take an interest under it, every material fact that will enable the court to identify the person or thing mentioned in the instrument, and to place the court, whose province it is to declare the meaning of the words of the instrument, as near as may be in the situation of the parties to it, is admissible in evidence. Per Parke, B., in Shore v. Wilson, 9 Clark ft F. 656. See Guy v. Sharp, 1 Mylne & K. 589,602, per Lord Brougham; Doe v. Martin, 1 Nev. & Man. 624, per Parke, J.; Doe d. Hiscocks v. Hiscocks, 6 M. & W. 867. per Lord Abinger; Hildebrand v. Fogle, 20 Ohio, 14 ; Hasbrook v. Paddock, 1 Barb. 636; Simpson v. Henderson, Moody & M. 300; Wood v. Lee, 5 T. B. Mon. 60, 60; Hitchin v. Groom, 6 C. B. 616. "Where there is a gift of the testator's stock, that is ambiguous, it has different meanings when used by a farmer and a merchant. So with a bequest of jewels; if by a nobleman, it would pass all; but if by a jeweller, it would not pass those that he had in his shop. Thus the same expression may vary in meaning according to the circumstances of the testator." Per Plumer, M. R., in Colpoys v. Colpoys, Jacob, 464. See also Kelley v. Powlet, Ambl. 605, 610. The remarks of Sir James Wigram upon this point, although made with reference to wills, apply equally to all instruments to be construed. "It must always be remembered," says he, "that the words of a testator, like those of every other person, tacitly refer to the circumstances by which at the time of expressing himself he is surrounded. If, therefore, when the circumstances under which the testator made his will are known, the words of the will do sufficiently express the intention ascribed to him, the strict limits of exposition cannot be transgressed, because the court, in aid of the construction of the will, refers to those extrinsic collateral circumstances to which it is certain the language of the will refers. It may be true, that without such evidence, the precise meaning of the words could not be determined; but it is still the will which expresses and ascertains the intention ascribed to the testator. A page of history (to use a familiar illustration) may not be intelligible till some collateral extrinsic circumstances are known to the reader. No one, however, would imagine that he was acquiring a knowledge of the writer's meaning, from any other source than the page he was reading, because, in order to make that page intelligible, he required to be informed to what country the writer belonged, or to be furnished with a map of the country about which he was reading." Wigram on Wills, sec. 76.

(h) Among the material facts necessary to be known by the court, in order that it may be placed as near as may be in the position of the parties to any instrument, is the knowledge or ignorance of those parties as to certain facts necessarily involved in the application of the instrument to the persons or things described in it. Thus, in Doe v. Beynon,

12 A. & E. 431, there was a devise to Mary B., with remainder to "her three daughters, Mary, Elizabeth, and Ann." At the date of the will, Mary B. had two legitimate daughters, Mary and Ann, living, and one illegitimate, named Elizabeth. It was held, that evidence was admissible to show that Mary B. formerly had a legitimate daughter named Elizabeth, who died some years before the date of the will, and that the testator did not know of her death, or of the birth of the illegitimate daughter. See also, Powell v. Biddle, 2 Dall. 70; Goodinge v. Goodinge, 1 Ves. Sen. 231; Careless v. Careless, 19 Ves. 601; Scanlan v. Wright, given, beginning, "In consideration of your having this day advanced" money, etc., which guaranty is invalid if in fact for a past or executed consideration, evidence should be received to show that in point of fact the advancing of the money and the giving of the guaranty were simultaneous acts. (k)