repugnant to the terms of a lease, although the lease says nothing about it; but not if the custom be repugnant to the express or implied terms of the lease (x). If the custom appears to be in a high degree unreasonable it will be strong evidence for a jury that it does not exist (y). Evidence of surrounding circumstances is admissible to show that a guarantee was intended to be a continuing one (x).

When the usage is inconsistent with the express or implied terms of the written contract, it will be inadmissible to control it, on the principle expressum facit cessare tacitum (a); and therefore evidence of a custom, inconsistent with an arbitration clause in a bought note, was held inadmissible (b). Where parties have come to an express contract, usage cannot be implied; and therefore, where a person contracts by writing in express terms, he cannot sue on an implied contract (c). It seems that no usage will be binding on a party unless the circumstances raise a sufficient presumption that he knew of its existence, and contracted with reference to it (d). The mere habit of affixing a special meaning to words in one

(x) Heffield v. Meadows, L. R., 5 C. P. 595; Wigglesworth v. Dallison, Dougl. 201.

(y) Bottomley v. Forbes, 5 Bing. N. C. 128.

(2) Heffield v. Meadows, L. R., 5 C. P. 595.

(a) Blackett v. Royal Exchange Assurance Co., 2 C. & J. 250; Suse v. Pompe, 8 C. B., N. S. 538.

(b) Barrow v. Dyster, L. R., 13 Q. B. D. 633; 33 W. R. 199. (c) Cutter v. Powell, 2 Smith, L. C. 1.

(d) Kirchner v. Venus, 12 Moo. P. C. 361.

class of contracts cannot amount to a custom of trade so as to control a written agreement (e).

Extrinsic evidence is not only admissible, but necessary, to explain any alteration or interlineation that may appear in a written instrument. As a

general rule the party tendering it in evidence must account for the alteration (f). If it appears to have been made contemporaneously with the instrument, or if it was made subsequently to its execution, with the privity of the parties, and there is no fraud upon, nor invasion of the stamp laws, its validity may be maintained; but if the alteration is material (g), as if the date (h), or amount, or time of payment of a bill of exchange be altered (i), or a joint responsibility is converted into a joint and several responsibility (k), the instrument will be void, unless the alteration was made by consent of the parties; and equally so, although made with consent, if the stamp laws are infringed (). Where a bill has been altered with the privity of an indorser and his indorsee, but without the privity of the acceptor, the latter is discharged (m). The same rule holds when the alteration is accidental (n), or by a stranger without the

P.

(e) Abbott v. Bates, 24 W. R. 101.
(f) Clifford v. Parker, 2 M. & G. 909.
(g) Gardner v. Walsh, 5 E. & B. 83.
(h) Clifford v. Parker, 2 M. & G. 905.
(i) Warrington v. Early, 2 E. & B. 763.
(k) Alderson v. Langdale, 3 B. & Ad. 660.
(1) Perring v. Hone, 4 Bing. 28.

(m) Master v. Miller, 1 Smith, L. C. 796.
(n) Burchfield v. Moore, 3 E. & B. 683.

H H

privity of either party (o). Parol evidence may be called to show that a variation between a bought note and a sold note is immaterial (p).

The last case requiring notice in this chapter is when a contract is partly in writing and partly verbal; or when terms are offered in writing, and accepted verbally. Such a combination of written and verbal evidence is admissible to prove a complete contract, except where the contract is required to be in writing (1). Thus, a contract, required by the Statute of Frauds to be in writing, must be wholly in writing; but such a contract can be proved by several writings which require oral evidence to connect them (").

(0) Davidson v. Cooper, 13 M. & W. 352; Crookwit v. Fletcher, 1 H. & N. 293.

(p) Holmes v. Mitchell, 7 C. B., N. S. 361.

(4) Kempson v. Boyle, 3 H. & C. 363.

(") Supra, p. 417.

PART III.

CHAPTER I.

THE ATTENDANCE OF WITNESSES.

PROCESS.

THE attendance of witnesses in the High Court (a), and, when such process is necessary, in the criminal courts, is obtained by serving the witness with a subpoena ad testificandum. If the witness is required to produce a document he is served with a subpoena duces tecum. A subpoena can be issued without leave of the Court at any stage of the proceedings ().

PENALTY FOR NON-ATTENDANCE.

(5 Eliz. c. 9, s. 12.)

"If any person upon whom any process out of a court of record shall be served to testify concerning any cause or matter depending there, and having tendered to him, according to his countenance or

(a) R. S. C. 1883, Ord. 27, r. 20.

(b) Raymond v. Tapson, L. R., 22 Ch. D. 430; 31 W. R. 394.

calling, such reasonable sum of money for his costs and charges, as with regard to the distance of the place is necessary to be allowed, do not appear according to the tenor of the process, not having a lawful and reasonable cause to the contrary, he shall forfeit for every such offence 107., and yield such further recompense to the party grieved as by the discretion of the judge of the court, out of which the process issues, shall be awarded." This enactment is made perpetual by 26 & 27 Vict. c. 125.

If a witness does not attend on his subpoena he may be proceeded against in either of three ways:1st. Under the above statute he may be sued for the penalty of 107., and further recompense; or, 2nd. In an action for damages (c); or,

3rd. He may be attached for contempt of court: but, on the motion for an attachment, it must be shown distinctly on affidavit that the witness was served; that his expenses were paid or tendered to him at the time of service; and that everything reasonable has been done to secure his attendance (d).

ATTENDANCE IN CRIMINAL PROCEEDINGS.

Generally the witnesses for a prosecution are bound over, by the committing magistrate or coroner, on recognizances conditioned to be forfeited if the witness do not appear to give evidence on the trial

(c) Pearson v. Isles, Dougl. 561.

(d) Garden v. Cresswell, 2 M. & W. 319.