(p) Shep. Touch. 88; Co. Litt. 112 b; Paramour v. Yardley, Plowd. 541; Doe v. Biggs, 2 Taunt. 109; Constantino v. Constantine, 6 Ves. 100; Sherratt v. Bentley, 2 Mylne & K. 149; 1 Jarman on Wills, 411. "If I devise my land to J. S., and afterwards by the same will I devise it to J. D., now J. S. shall have nothing, because it was my last will that J. D. should have it." Per Anderson, C. J., in Carter v. Kungstead, Owen. 84. But see, as to this doctrine, Paramour v. Yardley, Plowd. 541, note (d); Co. Litt. 112 b, note (1); 23 Am. Jur. 277, 278.

The law, as we have already had occasion to say in reference to various topics, frequently supplies by its implications the wants of express agreements between the parties. But it never overcomes by its implications the express provisions of parties. (r) If these are illegal, the law avoids them. If they are legal, it yields to them, and does not put in their stead what it would have put by implication if the parties had been silent. The general ground of a legal implication is, that the parties to the contract would have expressed that which the law implies, had they thought of it, or had they not supposed it was unnecessary to speak of it because the law provided for it. But where the parties do themselves make express provision, the reason of the implication fails.

If the parties expressly provided not anything different, but the very same thing which the law would have implied, now this provision may be regarded as made twice; by the parties and by the law. And as one of these is surplusage, that made by the parties is deemed to be so; and hence is derived another rule of construction, namely, that the expression of those things which the law implies works nothing. (s)

If, however, there be many things of the same class or kind, the expression of one or more of them implies the exclusion of all not expressed; and this even if the law would have implied all, if none had been enumerated. (t) 2 It follows, therefore, that implied covenants are controlled and restrained within the limits of express covenants. Thus, in a lease, the word "demise" raises by legal implication a covenant both of title in the lessor and of quiet enjoyment by the lessee. But if with the word "demise" there is an express covenant for quiet enjoyment, there is then no implied covenant for title. (u) So a mortgage by law passes all the fixtures of shops, foundries, and the like, on the land mortgaged; but if the instrument enumerates a part, without words distinctly referring to the residue, or requiring a construction which shall embrace the residue, no fixtures pass but those enumerated. (v) So where in a charter-party the shipper covenanted to pay freight for goods "delivered at A," and the ship was wrecked at B, and the defendant there accepted his goods, he was still held not bound to pay freight pro rata itineris; (w) although he would, under a common charter-party or bill of lading, be bound to pay freight for any part of the transit performed, if at the end of that part he voluntarily accepted the goods. (x)

(q) See Broom's Legal Maxims, 2d ed. p. 490 et seq. We shall consider this subject more fully hereafter.

(r) Expressum facit cessare tacitum. Co. Liu. 210 a; Goodall's case, 5 Rep. 97.

(s) Therefore, if the king make a lease for years, rendering a rent payable at his receipt at Westminster, and grant the reversion to another, the grantee shall demand the rent upon the land; for the law, without express words, implies that the lessee in the king's case must pay the rent at the king's receipt; and expressio eorum quae tacite insunt nihil operatur. Boroughes's case, 4 Rep. 72 b; Co. Litt. 201 b. See also Co. Litt. 191 a; Ive's case, 5 Rep. 11.

(t) This is in accordance with the maxim, expressio unius est exclusio alterius. Co. Litt. 210 a. See also Hare v. Horton, 5 B. & Ad. 715; The King v. Inhabitants of Sedgley, 2 id. 65.

1 A conveyance of certain numbered lots "being all of block 25" was construed to convey "block 25," although the numbered lots were in another block, it appearing that the grantor was to convey the house and land where he resided, and that his residence was on "block 25." Sharp v. Thompson, 100 Ill. 447.

2 The enumeration of particular things in a written instrument does not necessarily exclude others of a different class, however, where general terms are used broad enough to include them. Corwin v. Hood, 58 N. H. 401. As to what the phrase "fitting up the premises " includes, see Pratt v. Paine, 119 Mass. 439.

Instruments are often used which are in part printed and in part written; that is, they are printed with blanks, which are afterwards filled up; and the question may occur, to which a preference should be given. The general answer is, to the written part. What is printed is intended to apply to large classes of contracts, and not to any one exclusively; the blanks are left purposely, that the special statements or provisions should be inserted, which belong to this contract and not to others, and thus discriminate this from others. And it is reasonable to suppose that the attention of the parties was more closely given to those phrases which they themselves selected, and which express the especial particulars of their own contract, than to those more general expressions which belong to all contracts of this class. (y) l But if the whole contract can be construed together, so that the written words and those printed make an intellgible contract, this construction should be adopted. (z) Because the intention of the parties is presumed to be "alive and active throughout the whole instrument, and that no averments are anywhere inserted without meaning and without use." (a)

(u) Noke's case, 4 Rep. 80 b; Merrill v. Frame, 4 Taunt. 329; Line v. Stephenson, 4 Bing. N. C. 678, 5 id. 183.

(v) Hare v. Horton, 5 B. & Ad. 715.

(w) Cook v. Jennings, 7 T. R. 381.

(x) Lnke v. Lyde, 2 Burr. 882; Mitchell v. Darthez, 2 Bing. N. C. 555.

(y) Robertson v. Trench, 4 East, 130, 136; per Oakley, C. J., in Weisser v. Mainland, 3 Sandf. 318.

1 Where a contract is partly printed and partly in writing, the written matter must prevail over the printed, in case of a conflict between them. Hill v. Miller, 76 N. Y. 32; Clark v. Woodruff, 83 N. Y. 518. But where the printed part of a bill of lading read "contents unknown" and "articles, thirty bbls of eggs " was written in the margin, the carrier was held not liable to one who had paid a draft on the faith that the barrels actually contained eggs, when, without the carrier's knowledge, they really contained only sawdust. Miller v. Hannibal, etc. R. Co. 90 N. T. 430.