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Since parol evidence is inferior to written evidence, it is A writing cannot admissible to vary or contradict the expressed terms of not be varied or any instrument in writing, which, according to the principle contradicted by above stated, has become the primary evidence of the facts which parol evidence. are the subject of it. An example may be found in the point, which is now fully settled, that if a promissory note is made, on the face of it payable on a day certain, parol evidence is inadmissible to shew that it was to be payable only on a contingency: Foster v. Jolly, 1 Cromp. Mees. & Rosc. 703.; or not to be payable until a given event happens: Moseley v. Handford, 10 B. & č. 729. So where a bond has been given conditioned for payment absolutely, the party bound cannot set up that it was agreed that the bond should merely operate as an indemnity: Mease v. Mease, Cowp. Rep.47. So where it was agreed in writing that A. for certain considerations should have the produce of Boreham meadow, it was held, that he could not prove by parol that he was to have both the soil and produce of Millcroft and of Boreham meadow: Meres v. Ansell
, 3 Wils. 275. So, although parol evidence may be admissible to prove an additional consideration in a written instrument consistent with the consideration expressed (see post, Vol. IV., tit. Poor, p. 1012, 1013.), yet a party cannot set up a consideration contrary thereto. Mildmay's case, 1 Co. Rep. 176. Bedell's case, 7 Co. Rep.40.
Nevertheless a deed may be averred to have been made on a Admissible different day from that on which it bears date; for it takes effect in certain cases. from the delivery. Hall v. Cagenoze, 4 East, 477. So where a lease purported on the face of it to have been made on the 25th March 1783, habendum to the lessee from the 25th March now last past for thirty-five years: there was evidence to shew that the lease was not executed until after the 25th March 1783: It was held, that it took effect from the time of delivery, and not from the day of the date, and consequently that the term commenced on the 25th March 1783, and not on the 25th March preceding the date of the deed. Steele v. Mart, 4 B. & C. 272.
Again, parol evidence is admissible to shew that a written contract
between A. & B. was in fact made by B., not on his own account, but as an agent. Wilson v. Hart, 7 Taunt. 295. S. C. 1 B. Moore,
45. So where fraud is imputed, any consideration, however conTo shew fraud. trary to the averment of a deed, may be proved to shew the fraud
ulent nature of the transaction. B. N. P.173. So, in order to set aside a will for fraud, parol evidence may be given of what passed at the signing, and what the testator said as to the contents of the will, Doe v. Allen, 8 T. R. 147. But the party charged with fraud will not be admitted to prove any other consideration
than that stated. Clarkson v. Hanway, 2 P. Wms. 203. To prove cus. Again, where the parties have contracted in writing, in many intom not ex. stances parol evidence is admitted to prove a custom affecting the pressed in the
contract, on the ground, that where such a custom exists the writing.
parties must be taken to have made their contract subject to its operation. Thus, in the construction of mercantile contracts parol evidence is always admitted to shew the sense in which, according to the usage and custom of merchants, such contracts are to be understood. As where a ship was warranted to depart with convoy, evidence of the usage amongst merchants was admitted to shew that this meant convoy from the usual place of rendezvous. Lethulier's case, 2 Salk. 443. But proof of the usage of trade is not admissible to contradict the plain words of an instrument;as where a policy of insurance was “on the ship till moored at anchor twenty-four hours, and on the goods till discharged and safely landed,” evidence of an usage that the risk on the goods as well as the ship expired in twenty-four hours was held inadmissible to qualify the clear and unequivocal words of the policy. Parkirson v. Collier, Park on Insurances, 416., 6th ed. So it should seem that parol evidence is inadmissible to explain the meaning of the words “more or less” in a mercantile contract. Cross v. Eglin, ? B. & Adol. 106. It has been doubted whether the practice of admitting parol evidence in these cases has not been carried to an inconvenient length. (See Anderson v. Pitcher, 2 B.& P. 168., per Lord Eldon CJ.)
A custom affecting the contract may be proved by parol in other as well as in mercantile contracts. Thus it may be proved that a heriot is due by custom on the death of a tenant, though not exo pressed in the lease. White v. Sawyer, Palm. 211. Or, that a jessee by deed is entitled by custom to an away-going crop, though it be not mentioned in the deed. Wigglesworth v. Dallison, Dougl. 201. So in the case of a lease not under seal. Senior v. Armytage, Holt, N. P.C. 197., by Thompson C. B. But where a covenant, in express terms, or by necessary implication, excludes the customary right, evidence of such right is inadmissible. Webb v. Plummet, 2 B. & A. 746. Rosc. Ev, 13.
Parol evidence is admissible to explain the meaning of words used in a particular trade, as the word “ level” in a mine. Clay
ton v. Gregson, 4 Nev. & M. 602. To explain Where an ambiguity, not apparent on the face of a written inlatent ambi.
strument, is raised by the introduction of parol evidence, then, guity.
from the necessity of the case, the same description of evidence is admitted to explain the ambiguity; for example, where a testator devises his estate of Blackacre, and has two estates, called Blockacre, evidence may be admitted to shew which of the Blackacres is meant; or if one devises to his son John Thomas, and he has two sons of the name of John Thomas, evidence may be admitted to shew which of them the testator intended. Per Gibbs C. J.
Doe v. Chichester, 4 Dow. 93. So where land is devised to a person designated by her christian and surname only, and no person of that name claims under the devise, parol evidence is admissible to shew that the name was mistaken by the person who took the instructions for the will. Beaumont v. Fell, 2 P. Wms. 141. So where a fine was levied of twelve messuages in Chelsea, and it appeared that the cognizor had more than twelve messuages in Chelsea, Best C.J. admitted parol evidence to shew which messuages in particular the cognizor intended to pass : Doe v. Wilford, 1 R. & M. 88.
Where a subject-matter exists which satisfies the terms of the will, and to which they are perfectly applicable, there is no | latent ambiguity, and no evidence can be admitted for the
purpose of applying the terms to a different object. 3 Stark. Ev. 1026. 1st ed. Thus, where a testator devised his “ estate at Ashton," it was held, that parol evidence was inadmissible to shew that he was accustomed to call all his maternal estate “ his Ashton estate," there being an estate in the parish of Ashton which was sufficient to satisfy the devise. Doe v. Oxenden, 3 Taunt. 147. S. C. in Error, 4 Dow. 65. (See Miller v. Travers, 8 Bingh. 244., where all the cases connected with this subject are collected and commented on by T'indal C. J.)
Where the ambiguity is not latent, and raised by extrinsic evidence, but patent or apparent on the face of the instrument, parol evidence is not admissible to explain such ambiguity. Thus, where a blank is left for the devisee's name in a will, parol evidence cannot be admitted to shew whose name was intended to be inserted; Baylis v. Att. Gen. 2 Atk. 239. But, where a blank was left for
the christian name only, parol evidence was admitted by Lord Alvanley to prove the individual intended. Price v. Page, 4 Ves. 680. So in case of a devise “ to Mrs. C.,” Lord Loughborough referred it to the master, to receive evidence to shew the person intended. Abbot v. Massie, 3 Ves. 148.
Where a blank is left in a written agreement, which need not have been reduced into writing, and would have been equally binding if written or unwritten (as if the agreement were to deliver goods to the amount of less than 101., and a blank were left for the quantity of goods to be delivered), in such a case it is presumed,
in an action for the non-performance of the contract, parol evidence might be admitted to shew the quantity for which the parties agreed. 1 Phill. Ev. 521. So where, in the bishop's register, a blank was left for the patron's name, it was held, that this might be supplied by parol evidence. B. of Meath v. Lord Belfield, 1 Wils. 215.
Where a question is “ parcel or no parcel,” parol evidence is On question of always admissible to explain a writing. Thus, when a testator de. parcel or no vised - all his farm called Trogue's farm,” it was held that it parcel. might be shewn by evidence of what parcels the farm consisted. Goodtitle v. Southern, 1 M. & S. 299. So in a case of a written agreement to convey “ all those brick works in the possession of Å. B.,” declarations of A. B. at the time of the agreement were admitted to shew what the brick works were. Paddock v. Fradley, 1 Crompt. & Jerv. 90.
III. (3.) DE Hearsay Evidence.
that hearsay frequently applied than the general one, that hearsay evidence of evidence is ina fact is not admissible. If any fact is to be substantiated against admissible.
Hearsay part of the transaction, or res gestæ.
a person, it ought to be proved in his presence by the testimony of a witness sworn to speak the truth : and the reason of the rule is, that evidence ought to be given under the sanction of an oath, and that the person who is to be affected by the evidence may have an opportunity of interrogating the witness as to his means of know. ledge, and concerning all the particulars of his statement: 1 Phill. Ev. 218. There are, however, certain instances, which it will be the object of this section to point out, where hearsay evidence is admissible, because either the objection does not apply, or, from the necessity of the case, the rule is relaxed.
When hearsay is introduced, not as a medium of proof in order to establish a distinct fact, but as being in itself a part of the transaction in question, it is then admissible ; for to exclude it might be to exclude the only evidence of which the nature of the case is capable. Thus in Lord George Gordon's case, on a prosecution for high treason, it was held that the cry of the mob might be received in evidence as part of the transaction : 21 Hoc. St. Tr. 535. In an action by a husband and wife for wounding the wife, Ld. C. J. Holt allowed what the wife said immediately upon the hurt received, and before she had time to devise any thing for her own advantage, to be given in evidence as part of the res gesta : Thompson v. Trevannion, Skinn. 402., cited by Ld. Ellenborough C. J. in Aveson v. Lord Kinnaird, 6 East, 193. And Lawrence J. said, in the same case, that it is in every day's experience, in actions of assault, that what a man has said of himself to his surgeon is evidence, to shew what he suffered by the assault. So in Rex v. Foster, 6 C. & P. 325., the prisoner was charged with manslaughter, in killing John Ferrall, by driving a cabriolet over him : A witness saw the cabriolet drive by very rapidly, but did not see the accident; and immediately afterwards, on hearing the deceased groan, he went up to him, when the deceased made a statement as to how the accident happened: And it was held by three judges (Park, Patteson, and Gurney) that this statement was receivable in evidence. Inquiries of patients by medical men, with the answers to them, are evidence of the state of health of the patients at the time; and what were the symptoms, what the conduct of the parties themselves at the time, are always received in evidence upon such inquiries, and must be resorted to from the very nature of the thing: By Ld. Ellenborough, 6 East, 195. So on a prosecution for a rape, it has been held, that the prosecutor may prove that the woman made a complaint against the prisoner recently after the injury: Rer v. Clarke, 2 Stark. N. P. C. 242.; as it also has been considered allowable,
an indictment for an assault on an infant of five years old, with intent to ravish her, to give evidence of the child's having complained of the injury recently after it was received: 1 East
, P.C. c. 10. § 5. p. 444.; post, Vol. III. (Criminal Law,) tit. Rape. But the particulars of the complaint stated by her on the former occasion, are clearly not admissible as evidence of the truth of her statement: 1 Phil
. Ev. 222. On a charge of larceny, where the proof against the prisoner is that the stolen property was found in his possession, it would be competent to shew, on behalf of the prisoner, that a third person left the property in his care, saying he would call for it again afterwards ; for it is material in such a case to inquire under what circumstances the prisoner first had possession of the property: 1 Phill. Ev. 223.
If there has been a previous prosecution between the same Testimony of parties, and the point in issue was the same, the testimony deceased witof a deceased witness given upon oath at the former trial is admis. ness at a former
trial. sible on the subsequent trial, and may be proved by one who heard him give evidence: Rex v. Carpenter, 2 Show. 47., 2 Hawk. P. C. c. 46. § 29., 1 Phil. Ev. 219., and Mr. Starkie's note to Rex v. Smith, in the second volume of his Reports, p. 211. But the witness must speak to the very words, and not merely swear to the effect of them: Ld. Palmerston's case, cited by Ld. Kenyon in Rex v. Jolliffe, 4 T. R. 290. “ He ought,” said Ld. Kenyon, “ to recollect the very words; for the jury alone can judge of the effect of words:” Ennis v. Donithorne, MS., 1 Phill. Ev. 219. (a)
Besides the usual evidence of guilt in general cases of felony, Dying declarthere is one kind of evidence peculiar to the case of homicide; ations. which is the declaration of the deceased after the mortal blow as to the fact itself, and the party by whom it was committed : 1 East, P. C. c.5. $124. p. 353. The general principle on which this species of evidence is admitted is, that they are declarations made in extremity, when the party is at the point of death, and when every hope in this world is gone : when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth: A situation so solemn, and so awful, is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a court of justice: Per Eyre C. B., in Woodcock's case, 1 Leach, 502. It Deceased must is therefore evident, that declarations, though proved to have been be conscious of made by a person in a dying state, are not admissible, unless it approaching
death, also appears that the deceased himself apprehended that he was in such a state of mortality as would inevitably oblige him soon to answer before his Maker for the truth or falsehood of his assertions : Per Eyre C. B., ibid.
Upon the trial of Henry Welbourn, 1 East, P. C. c. 5., § 124. Welbourn's p. 358., for the murder of Elizabeth Page by poison, a witness case. deposed that the deceased and the prisoner lived with her as her servants; that perceiving the deceased alter and appear very ill, she taxed her with being with child, which she owned, and the next day continuing very ill, she confessed she had taken something; at which time the witness believed that the deceased was sensible of her situation and danger, though she did not say so. But when the apothecary came to see her the same evening, she said that she was very bad, and did not know if she should get the better of it. The apothecary himself deposed, that when he first saw the deceased she was then apparently dying; but he believed that she was not sensible of her danger ; that after he had been with her some time he made her sensible of her danger, in order that he might get from her what she had done. She desired him to give her something to ease her pain. He told her he must first know what she had done; and that she would not live twenty-four hours unless proper relief were afforded (she did not in fact live above an hour afterwards). The witness had no other reason for thinking that she knew her danger from any thing that she said, except that on his telling her of her danger, she told him what was the cause, which she had before refused to do. She then de
(a) That is, it should seem, the witness ought to say, " to the best of my recollection these were the very words used,"