The papers which were in the hands of the plaintiff, can be made to fit the description given in the acceptance of the defendant by aid of the maxim, ut res magis valeat quam pereat, which means that instruments should be liberally construed, so as to give them effect and carry out the intention of the parties, and when an instrument is susceptible of two constructions, one by which it will take effect, and the other, by which it will be inoperative .for the want of a subject-matter to act on, it shall receive that construction, which will give it effect. This rule is based on the presumption, that when parties make an instrument, the intention is, that it shall be effectual, and not nugatory.
“ Executions in the hands of an officer,” taken literally, would apply to process in his hands, which was then in a condition to be acted on, and would not fit judgments in the ofifieer’s hands, on which execution had been stayed; but by aid of the words, “ as they come due,” we see that the word, “ executions” is not to be taken literally, for the papers, to which reference was made, were some that were about to become due at different times / and taking the whole description, they as aptly point out judgments, on which were entered, “executions issued and stayed,” as any other terms of description that could have been used.
The suggestion that these words ought to be considered surplusage, has nothing to support it. That is sometimes done in order to give effect to an instrument, in which repugnant *387words are used, but is never applied for tbe purpose of defeating an instrument. There is no error.
Judgment affirmed.