partly express and in writing, partly implied or understood and unwritten; but in these cases a restriction is established on the soundest principle, that the evidence received must not be of a particular which is repugnant to or inconsistent with the written contract. Merely that it varies the apparent contract is not enough to exclude the evidence; for it is impossible to add any material incident to the written terms of a contract without altering its effect more or less; neither in the construction of a contract among merchants, tradesmen, or others, will the evidence be excluded because the words are in their ordinary meaning unambiguous; for the principle of admission is, that words, perfectly unambiguous in their ordinary meaning, are used by the contractors in a different sense from that. What words more plain than 'a thousand,' 'a week,' 'a day'? Yet the cases are familiar in which a thousand' has been held to mean twelve hundred; 'a week' only a week during the theatrical season; a day' a working day. In such cases the evidence neither adds to, nor qualifies, nor contradicts, the written contract-it only ascertains it by expounding the language" (x). So, there being in every voyage policy of insurance an implied warranty of seaworthiness, parol evidence is admissible to show the amount of seaworthiness required (y).

A few more illustrations will complete the outline of this doctrine. In Browne v. Byrne, a bill of lading specified a certain sum as payable for freight, and it was held that an indorsee, in an action for the amount, might give evidence of a customary deduction. The extrinsic evidence in this case, although bordering on repugnancy, was received because the bill of lading merely specified a sum certain for freight, without stipulating that it was to be free of all deductions. If the bill of lading had expressed, or if from the language of it

(x) Per Coleridge, J., Browne v. Byrne, 3 E. & B. 703.

(y) Burges v. Wickham, 3 B. & S. 669.

the intention of the parties could have been collected, that the freight at the specified rate should be paid free from all deductions, customary or otherwise, then it would have been repugnant to it to set up the usage (z). Under a contract to carry a full and complete cargo of molasses from London to Trinidad, evidence has been received to qualify the contract by showing that a cargo is full and complete, if the ship be filled with casks of the standard size, although there be smaller casks of other produce freighted in the same vessel (a).

Where the defendants buy as brokers for a principal, whose name they do not disclose at the time of contract, it has been held that evidence of a custom will be admitted to show that in this case the broker is personally liable on the contract (b). It may be shown that by the usage of trade an inferior kind of palm oil answers to the description of “best palm oil" (c); or that by the custom of the building trade the words "weekly accounts" refer to regular day work only (d); or that credit "for six or eight weeks" does not necessarily give the whole eight weeks for payment for goods (e). It is a leading principle that an agricultural custom, as that a tenant shall have an away-going crop, is good if not 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 (ƒ). Evidence of surrounding circumstances is admissible to show that a guarantee was intended to be a continuing one (g). Expressum facit cessare tacitum. When the usage is inconsistent with the express or implied terms of the written con

(z) 3 E. & B. 703; cf. Phillipps v. Briard, 1 H. & N. 21.

(a) Cuthbert v. Cumming, 11 Ex. 405.

(b) Humfrey v. Dale, 7 E. & B. 266.

(c) Lucas v. Bristow, E., B. & E. 907.

(d) Myers v. Sarl, 3 E. & E. 306. (e) Ashforth v. Retford, L. R., C. P. 20.

(f) Heffield v. Meadows, L. R., 4 C. P. 595; Wigglesworth v. Dallison, Dougl. 201.

(g) Heffield v. Meadows, L. R., 4 C. P. 595.

tract, it will be inadmissible to control it, on the principle expressum facit cessare tacitum (h); and therefore evidence of a custom, inconsistent with an arbitration clause in a bought note, was held inadmissible (i). In so far as 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 (k). 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 (7). The mere habit of affixing a special meaning to words in one class of contracts cannot amount to a custom of trade, so as to control a written agreement (m).

Alterations or interlineations. 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 (n). 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 (0), as if the date (p), or amount, or time of payment of a bill of exchange be altered (1), or a joint responsibility is converted into a joint and several responsibility (→), 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 (s). 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 (t). The same rule holds when the alteration is accidental (u), or by a stranger without the privity of either party (x). Parol evidence may be called to show that a variation between a bought note and a sold note is immaterial (y).

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 (≈). 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 (a).

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 (b). A subpœna duces tecum ought to specify the documents required, and the court will not act upon a subpoena which is too general; but if a person served with a subpoena admits that he has the documents required with him, he must produce them (c). He may be asked what documents he has with him, and he is bound to answer the question without being sworn, and produce the documents. The witness produces the document to the court and not to the parties, and the court decides whether it is to be used or not. The witness can, of course, take any legal objection to producing the document. If a witness attends on a subpœna duces tecum, with a document which he refuses to produce on

(a) R. S. C. 1883, Ord. 37, rr. 26 to 34.

(b) Raymond v. Tapson, 22 Ch. D. 430.

(c) Lee v. Angas, L. R., 2 Eq. 59.