pleasure; and it was held that the words of reservation or exception so used operated as an express grant of an incorporeal hereditament, (r) -that the liberty of hawking, hunting, fowling, and fishing granted to a person, his heirs, executors, and assigns, amounted to a profit a prendre, authorizing the grantee to take and to carry away the fowl and the fish, and not to a mere license of pleasure, and that it conferred upon the grantee a right to send his servants to hawk, hunt, fish, and fowl for him in his absence. Licenses operating as GRANTS of an incorporeal hereditament.-A license, sealed and delivered as a DEED, authorizing the licensee to go upon another man's land or to make use of it for profit, operates as a grant of an easement, or of an incorporeal hereditament, but a mere license of pleasure amounts only to a personal contract, or to an ordinary covenant between the parties, and does not transfer to the licensee and his heirs any right over, or interest in, the soil and freehold of the licensor. A license by deed to hunt deer, or to fish, granted to a man, and his heirs and assigns, would, as we have just seen, authorize him to take away the deer killed and the fish caught, and would amount, consequently, to a grant of an incorporeal hereditament and profit a prendre. "If one license me and my heirs to come and hunt in his park, I must have a writing (that is a deed) of that license, for a thing passes by the license, which endures in perpetuity, but if he license me one time to hunt, this is good without deed, for no inheritance passes." (s) If the license be a mere personal license *of pleasure, the licensee cannot take away to his own use the game killed, or go [*157] with servants upon the land, still less send servants to kill for him, or assign his license to another. A license under seal to convey coals or timber in carts, or water in drains or channels, through or across the land of the licensor, is a license of profit, and not of pleasure, and would amount to a grant of a right of way, or of a water-course. A license under seal may be of such a nature as to operate in respect of some things as a license of pleasure merely, and as to others as a grant of an incorporeal hereditament, and a direct transfer of an estate or interest in the land. "A dispensation or license," observes Willes, C. J., "properly passeth no interest, nor alters or transfers property in anything, but only makes an action or something done by the party lawful, which without it would have been unlawful, as a license to hunt in a man's park, or to come into his house, which without license would be unlawful. But a license to hunt in a man's park, and carry away the deer killed to his own use, to cut down a tree in a man's ground, and to carry it away the next day after to his own use, are licenses as to the acts of hunting and cutting down the tree; but as to carrying away the deer killed and tree cut down, they are GRANTS. So, to license a man to eat my meat, or to fire the wood in my chimney to warm him by; as to the actions of eating, firing my wood, and warming him, they are licenses, but it is consequent necessarily to those actions that my property be destroyed in the meat eaten, and the wood burnt, so as in some cases by consequent, and not (r) Wickham v. Hawker, 7 M. & W. 63. Doe dem. Doug. v. Lock, 2 Ad. & E. 743. (s) Year Book, 11 Hen. 7, fol. 86, cited by Parke, B., 7 M. & W. 79. directly, and as its effect, a dispensation or license may destroy and alter property." (t) Of BONDS or OBLIGATIONS. No precise form of words is essential or necessary to create a bond or obligation. (u) Any memorandum in writing under seal, acknowledging a debt, or denoting the intention of the party to bind himself for the payment of a sum of money, will oblige him as effectually as the most formal words he can make use of,-such, for example, as "I, A. B., have borrowed 107. of C. D." or " Memorandum that A. owes B. 10.," or "I have agreed to pay J. S. 10.," or "all things being reckoned and accounted between A. and B., it is admitted that A. owes B. 10.;" for however the words teneri et firmiter obligari are generally put into every common bond, yet when any other words purport the same *effect, and the same sense in writing, the law shall [*158] construe them to have like efficacy. Thus, if a man by writing, sealed and delivered, recites that "whereas he had 1007. of J. S., he hath paid him forty pounds, and there remain sixty," this is a good bond, binding him to pay the sixty pounds; for every word which proves a man to be a debtor, if it be under seal, shall charge him with the payment of the money. (x) In an action upon a bond, the plaintiff in his declaration alleged that the defendant was bound to him by his writing obligatory for the payment of the sum of 207.; upon oyer the words of the deed were, "I do acknowledge to Edward Watson by me 207. upon demand, for doing the work in my garden," and this was held to be a good bond for 20l. (y) A memorandum to the following effect," Be it known that I owe to S. Spurr, 147., besides 61. by bill," was adjudged a good obligation for 201. (2) If no time is limited in a bond for the payment of money borrowed or acknowledged to be due, such money is due immediately, and payable on demand, (a) and if it is to be paid on a day that is past, the money shall be due and payable immediately. But if it be for the performance of an act on the 29th of February next following, and the next February has only twenty-eight days, it has been said that the party is not bound to do the act until the next leap year, when February has twenty-nine days! (b) (t) Vaughan, C. J., Thomas v. Sorrell, Vaugh. 330. Wood v. Ledbitter, 14 Law J. N. S. (Exch.) 164. (u) Dodson v. Kayes, Yelv. 193; 2 Rolle Abr. 146, 147. Johnson v. Morgan, Cro. Eliz. 758. Hardman v. Hardman, ib. 886. (x) Core's case, Dyer, 22 b. Bedow's case, 1 Leon. 25; Bac. Abr. p. 804. (2) Spurr v. Wood, cited Dyer, 22, b., n. 137. (a) 1 Brownl. 53. (b) 1 Leon. 101. As to penal obligations, see post, sec. 3. SECTION II. OF THE LEGAL FORCE, AND EFFECT, AND INTERPRETATION, OF SIMPLE Inadmissibility of oral evidence to add to, alter, or contradict, a written contract. Most systems of jurisprudence have manifested a decided preference to written memorials over verbal representations founded on the doubtful or imperfect recollection of witnesses. The French law requires a very large class of contracts to be put into writing, "in consequence," it observes, "of the corruption of manners and subornation of witnesses," and formally prohibits the admission of oral evidence against the contents of a written document. (c) *It is a fundamental rule of our own common law that oral evidence shall not be given, to add to, subtract from, or in any [*159] manner alter, or vary any description of written contract; "quoties in verbis nulla est ambiguitas, nulla expositio contra verba fienda est." This general rule or principle of law has been established on the ground that the writing stands higher in the scale of evidence than the oral testimony, and that the stronger evidence ought not, therefore, to be controlled or altered by the weaker. (b) Thus it has been held, that the verbal declaration of an auctioneer, made at the time of sale, cannot be given in evidence in opposition to the printed conditions of sale, (c) and that an oral compact or understanding, entered into at the time of the signing of a written agreement for a lease, cannot be given in evidence in opposition to the agreement, to show that the rent was to commence from a later day than that named therein. (d) If a written contract of purchase and sale fixes the time for the completion of the purchase, or the time for the delivery of the goods, an agreement to substitute another day must be expressed in writing, (e) and if the time for payment is named, oral evidence is inadmissible to show that the payment was to be prolonged, or that it was to depend on a contingency or be made out of a particular fund. (f) Oral evidence is inadmissible to make a promissory note absolute upon the face of it, conditional or payable upon a contingency, (g) or to make a contract, which, by the terms of it, is to commence in præsenti, to commence in futuro; (h) or to show that it was agreed, when a bill or note was given or indorsed, that the instrument should be renewed, (c) Pothier, p. 4, c. 2, art. 1. (b) Lord Hardwick, 2 Atk. 383; 1 Cox, 402. (c) Gunnis v. Erhart, 1 H. Bl. 289. (d) Henson v. Coope, 3 Sc. N. R. 48. (e) Stead v. Dawber, 10 Ad. & E. 57; 2 P. & D. 451, s. c. Marshall v. Lynn, 6 M. & W. 109. Stowell v. Robinson, 3 Bing. N. S. 928. (f) Hoare v. Graham, 3 Campb. 57. (g) Rawson v. Walker, 1 Stark. 360. Moseley v. Hanford, 10 B. & C. 729. Foster v. Jolly, 1 C. M. & R. 703; 2 Tyr. 239, s. c. Free v. Hawkins, 1 Moore, 535, 542; 8 Taunt. 92, s. c. Adams v. Wordley, 1 M. & W. 374; 1 Tyr. & G. 620, s. c. (h) Williams v. Jones, 7 D. & R. 548; 5 B. & C.; 108, s. c. and that payment should not be demanded at the time when it became due. (i) A warranty, made orally on the completion of a written contract of sale, cannot be introduced as part of the contract if the contract itself is silent as to the fact of such warranty. (k) If a written demise be silent as to the payment of the ground rent (7) or land tax, (m) oral evidence is inadmissible to show that the tenant agreed to pay it. If a written contract of purchase and sale is silent as to the time of payment or delivery, oral evidence is inadmissible to show that credit was bargained for *and intended to have been given, (n) or that [*160] the goods were to be delivered or removed at a precise time or in any particular manner. (0) When an agreement for a lease has been drawn up in writing, oral evidence cannot be given to show that more premises were intended to be included in the agreement than those actually mentioned in it, or that a greater rent was to be paid than that actually expressed, or that the rent was to commence at a later day than that named in the agreement; (p) for whenever the contract is reduced into writing, nothing that is not found impressed upon it can be considered as forming part of the contract. (q) But the contract may be evidenced and established, as we have previously seen, through the medium of several writings, as well as by one document, and the import of a written paper, purporting to contain the terms of a contract, may be controlled, altered, or extended, by a cotemporaneous agreement in writing; (r) provided it be shown that both papers refer to the same subject-matter, persons, and things. The rule of law, excluding the admission of oral testimony, for the purpose of adding to, or enlarging the terms of a written contract, holds with still greater force in the case of agreements required by law to be authenticated by writing, for to allow such agreements to be proved in any material part by oral testimony, would be to substi tute in the place of the written contract required by statute, a contract established partly by writing, and partly by oral testimony, and would let in all the mischiefs that it was the object of the legislature to prevent. Oral evidence consequently is inadmissible, as we have already seen, to connect together letters or writings, having no obvious or necessary connexion or reference to each other, in order to establish a contract in writing within the provisions of the Statute of Frauds. (s) Oral testimony in aid of insufficient written evidence of a contract.— But a contract not required to be in writing by the Statute of Frauds may be evidenced and established through the medium of oral and written testimony. If a written document amounts to a mere admission or acknowledgment of certain facts, forming a link only in the chain of evidence by which a contract is sought to be established, it may be given in evidence concurrently with, and may be aided and supported by, oral testimony. (t) (i) Hoare v. Graham, 3 Campb. 56. Brown v. Langley, 5 Sc. N. R. 249. (k) Powell v. Edmunds, 12 East, 6. v. Cooper, 3 Sc. N. R. 48. (9) Kain v. Old, 4 D. & R. 61; 2 B. & C. 634, s. c. Pickering v. Dawson, 4 Taunt. 786. (r) Brown v. Langley, 5 Sc. N. R. 254. (8) Boydell v. Drummond, 11 East, 142. (t) Allen v. Pink, 4 M. & W. 144. Thus, in the case of a contract for work and services, if the names of the contracting parties are not mentioned, or the price to be paid for the work is not specified, or the quantity not named, [*161] and the writing consequently does not amount to a contract, oral proof of the additional facts and circumstances necessary to constitute a contract and give effect to the transaction, is admissible. (u) Such evidence does not alter or add to an existing contract, as no contract exists independently of it. Any mere admission, or averment of a fact also, in writing, may be contradicted by oral testimony. If a bill of exchange or promissory note purports on the face of it to be made for value received, it is competent to the parties to show that no value was received, (x) and if a receipt or acknowledgment of the payment of money has been given, oral evidence is admissible to contradict such receipt or acknowledgment and rebut its legal operation as a discharge from liability. (y) And although oral terms, stipulations, or agreements, made either before the written instrument was completed, or during the time that it was in a state of preparation, cannot be given in evidence, so as to add to, or in any manner vary or qualify, the terms of the written engagement, yet "it is competent to the parties, at any time before breach of the agreement, by a new contract not in writing, to waive and annul the former agreement, so as to prevent either party from recovering on the contract which was in writing." (z) Oral evidence, offered to show subsequent matter of discharge from liability, affects only the remedy by way of action upon the contract; it does not in any way impugn or alter the terms of the written agreement itself. Admitting the contract, it seeks to show that the party has no right to enforce it. It is admissible consequently on the part of a defendant for the purpose of discharging himself and defeating the action upon the contract, but cannot be introduced by a plaintiff who comes to have an omission rectified, or to introduce a new term into the written agreement, or to substitute in the place of the original written contract a new contract, to be proved partly by the written agreement, and partly by subsequent verbal terms engrafted [*162] upon it. (a) The admission of such evidence in the last case would have the effect of varying or adding to the terms of the written agreement, and would, moreover, be in direct contravention of the Statute of Frauds; but its admission in the first case is consistent with the contract and with the provisions of the statute. The Statute of Frauds has not altered the situation of the defendant against whom a contract is sought to be enforced; it says that no action shall be brought (u) Meath v. Lord Belfield, 1 Wils. 215. Knapp v. Harden, 1 Gale, 47. Jeffery v. Watson, 1 Stark, N. P. C. 267. Ingram v. Lee, 2 Camp. 521; Bosanquet, J., 2 Sc. N. R. 656. Eden v. Blake, 9 Jurist, 213. (x) Foster v. Jolly, 1 C. M. & R. 708; 5 Tyr. 239, s. c. Radout v. Bristow, 1 C. & J. 231; 1 Tyr. 84, s. c. Holliday v. Atkin. son, 8 D. & R. 165; 5 B. & C. 503, s. c. (y) Straton v. Rastall, 2 T. R. 366. Lam. pon v. Cooke, 5 B. & Ald. 611. Graves v. Key, 3 B. & Ad. 313. Fairman v. Budd, 5 M. & P. 534; 7 Bing. 574, s. c. Scholey v. Walmsey, 1 Peake Ñ. P. C. 34. Holsten v. Jumpson, 4 Esp., p. 190. Fairmaner v. Budd, 5 M. & P. 540. Skaife v. Jackson, 3 B. & C. 423. By the French Law, the contents of a written document may be impeached as false by an original process called inscription de faux ; but until that charge is decided, and they are adjudged to be so, credit is given to them provisionally. Pothier, p. 4, c. 1, art. 1, § 3. (z) Denman, C. J., Goss v. Lord Nugent, 5 B. & Ad. 61; 2 N. & M. 33, s. c.; Lord Eldon, 9 Ves. 250. (a) Stead v. Dawber, 10 Ad. & E. 57. Marshall v. Lynn, 6 M. & W. 109. |