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EXCEPTION

contracts. An exception is a clause in a deed,. by which the
lessor excepts something out of that which he granted before by the deed.

2. To make a valid exception, these things must concur: 1. The exception
must be by apt words, as, saving and excepting, &c. 2. It must be of part
of the thing previously described, and not of some other thing. 3. It must
be part of the thing only, and not of all, the greater part, or the effect
of the thing granted, an exception, therefore, in a lease, which extends to
the whole thing demised, is void. 4. It must be of such thing as is
severable from the demised premises, and hot of an inseparable incident. 5.
It must be of a thing as he that accepts may have, and which properly
belongs to him. 6. It must be of a particular thing out of a general, and
not of a particular thing out of a particular thing. 7. It must be
particularly described and set forth, a lease of a tract of land, except
one acre, would be void, because that acre was not particularly described.
Woodf. Landl. and Ten. 10, Co. Litt. 47 a, Touchs. 77, 1 Shepl. R. 337,
Wrights R. 711, 3 John. R., 375 8 Conn. R. 369, 6 Pick. R. 499, 6 N. H.
Rep. 421. Exceptions against common right and general rules are construed
as strictly as possible. 1 Bartons Elem. Conv. 68.

3. An exception differs from a reservation, the former is always a part
of the thing granted, the latter is of a thing not in esse but newly
created or reserved. An exception differs also from an explanation, which
by the use of a videlicet, proviso, &c., is allowed only to explain
doubtful clauses precedent, or to separate and distribute generals, into
particulars. 3 Pick. R. 272.


Source: Bouviers Law Dictionary 1856 Edition

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