words used in a sense different from their ordinary meaning, or the addition of known terms not inconsistent with the written contract."

Parol evidence, when admissible to control or explain agricultural contracts.] A custom affecting the contract may be proved by parol in other, as well as in mercantile, contracts, as in the case of customs affecting agricultural contracts. Thus, it may be proved that a heriot is due by custom on the death of a tenant, though not expressed in the lease. White v. Sayer, Palm. 211. Or, that a lessee by deed is entitled by custom to an away-going crop, though it be not mentioned in the deed, Wigglesworth v. Dallison, 1 Dougl. 201. So in the case of a lease not under seal. Senior v. Armytage, Holt, 197. But where a covenant excludes the customary right by an express provision on the subject matter of the custom, evidence of such right is inadmissible. Webb v. Plummer, 2 B. & A. 746. Roberts v. Barker, 1 C. & M.808. But the custom may still prevail, though the terms of the holding are inconsistent with it, where it only relates to the period of quitting. Holding v. Pigott, 7 Bing. 475. And even where there is an express stipulation respecting the quitting, yet it may not always be sufficient to exclude the custom. Thus, where the custom was for the tenant to be paid for the last year's ploughing and sowing, and to leave the manure if the landlord would buy it; and the lease provided that the tenant should spend more manure than the custom required, leaving the rest to be paid for by the landlord at the end of the term; held, that the tenant was still entitled to be paid for the last year's ploughing and sowing under the custom. Hutton v. Warren, 1 M. & W. 466. On the lease of a rabbit warren, parol evidence was admitted to show that by the custom of the county, the word " thousand" means twelve hundred when applied to rabbits. Smith v. Wilson, 3 B. & Ad. 728. A contract for the sale of cyder may be explained, by local usage, to mean apple juice before it has been made into cyder in its usual form. Studdy v. Sanders, 5 B. & C. 628.

Parol evidence admissible to explain ancient charters, grants, &c.] Long user may serve to explain an ambiguous act of parliament. Stewart v. Lawton, 1 Bing. 377. In the construction of ancient charters, expressed in obscure or general terms, parol evidence has always been admitted to prove the continual and immemorial usage under the instrument. 2 Inst. 282. R. v. Varlo, Cowp. 248. Chad v. Tilsed, 2 B. & B. 406. Thus, in a crown grant of" tithes," contemporaneous leases, proceedings in causes, and parol testimony, may be resorted to in order to show the species of tithes intended to be conveyed. Governors of Lucton School v. Scarlett, 2 Y. & J. 330. Where a private deed of 1656 gave the nomination of a curate to " inhabitants," it was held that the word was properly explained by past usage to mean all housekeepers. Attorney-General v. Parker, 3 Atk. 576. So the same word, in a charter of Edward VI., was explained by usage to mean inhabitants paying church and poor rates. R. v. Davie, 6 A. & E. 374. There seems to be no distinction in this respect between charters and private deeds. Withnell v. Gartham, 6 T. R. 398. The words" three acres of meadow," in a surrender and admittance, may be confined by long user to the prima tonsura. Stammers v. Dixon, 7 East, 200. But evidence of usage, however long, will not be admitted to overturn the clear words

of a charter. R. v. Varlo, Cowp. 248. In the case of modern deeds evidence of the acts of the parties is not admissible, in the construction of the instrument, to show their understanding of it. Clifton v. Walmesley, 5 T. R. 564. Iggulden v. May, 9 Ves. 333. 2 N. R. 449.

Parol evidence admissible to discharge written agreements.] A deed cannot be revoked or discharged by parol, or even by writing not under seal, an executory agreement in writing, not under seal, may, before breach, be discharged by a subsequent parol agreement; Lord Milton v. Edgworth, 6 Brown P. C. 587.; after breach, it cannot be discharged except by release under seal, or accord and satisfaction; B. N. P. 152.; Willoughby v. Backhouse, 2 B. & C. 824.; or by proof of a valid agreement substituting a new cause of action in place of the old. Case v. Barber, T. Raym. 450. In these cases, wherever the subsequent parol agreement has had the effect, in point of law, of varying or discharging the original one, it is admissible in evidence. Thus, in an action for not accepting goods, where it appeared that the agreement in writing was to deliver at a fixed time, the plaintiff may show a subsequent extension of the time by verbal agreement, Cuff v. Penn, 1 M. & S. 21. A distinction is to be observed on this head between contracts in writing under the Statute of Frauds, and contracts at common law. In the former case a parol contract will not be admitted to show a subsequent variation in the written contract; as where several lots of land were bought together, it cannot be shown that the purchaser has by parol waived the contract as to one lot to which the vendor could not make title; Goss v. Lord Nugent, 5 B. & Ad. 58.; or, that the parties varied the day of completion. Stowell v. Robinson, 3 New Ca. 928. But the court said it would have been otherwise if the contract had not been subject to the control of an act of parliament; that where a contract has been reduced into writing, it is competent to the parties, at any time before the breach of it, by a new contract not in writing either altogether to waive, dissolve, or alter the former agreement, or to qualify the terms of it, and thus to make a new contract, which is to be proved partly by the written agreement, and partly by the subsequent verbal terms engrafted upon it. Goss v. Lord Nugent, 5 B. & Ad. 65.

Where an am

Parol evidence admissible to explain latent ambiguity.] biguity, not apparent on the face of a written instrument, is raised by the introduction of parol evidence, the same description of evidence is admitted to explain it ; for example, where a testator devises his estate of Blackacre, and has two estates called Blackacre, evidence may be admitted to show 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 show which of them the testator intended. Per Gibbs, C. J., Doe v. Chichester, 4 Dow. 93. Doe v. Morgan, 1 C. & M. 235. And where the description of the devisee, or thing devised, is true in part, but not true in every particular, parol evidence is admissible to show the person or thing intended, provided there is enough on the face of the will to justify the application of the evidence; per Cur. in Miller v. Travers, 8 Bing. 248-9. Thus, an error in a christian or surname may be proved. S. C., and see Careless v. Careless, 1 Meriv. 384. Where the grantor had no lands agree.

ing with the description in the deed, the lands intended to be conveyed may be shown by the contract of sale, or by letters written between the parties and their agents. Beaumont v. Field, 1 B. & A. 247. But where a devise was to John H., the eldest son of John H., and it appeared that John H., the father, had an eldest son, named Simon, and a son by a second marriage named John, held that declarations of the testator were not admissible to show which was meant. Doe v. Hiscocks, 5 M. & W.363. Where a devise was to S. H., second son of T. H., but in fact S. H. was the third son; evidence of the state of the testator's family, and of other circumstances, was admitted to show whether he had mistaken the name or the description. Doe v. Huthwaite, 3 B. & A. 632. But evidence of the testator's declared intention would not, it seems, have been admissible. See the judgment in Doe v. Hiscocks, 5 M. & W. 369. Where the devise was to John A., grandson of T. A., with a charge in favour of " each of the brothers and sisters" of the said John A., and it appeared that there were two grandsons of T. A., both named John A., held that parol declarations of the testator were admissible to show which was meant, although it also appeared that only one of the grandsons had several brothers and sisters. Doe v. Allen, 12 4. & E. 451. In the case of a devise to testator's niece, remainder to her three daughters M., E., and A., the niece at the time of making the will had two legitimate daughters, M. and A. and one illegitimate, E.; held that the claim of the latter might be rebutted by shewing that the niece formerly had a legitimate daughter, E., and that the testator knew nothing of the death of the legitimate, or the birth of the illegimate E. Doe v. Beynon, 12 A. & E. 431. Where a fine was levied of twelve messuages in Chelsea, and it appeared that the cognizor had more than twelve messuages in Chelsea, parol evidence was admitted to show which messuages in particular the cognizor intended to pass. Doe v. Wilford, R. & M. 88. S. C., 8 D. & R. 549. Where a devise was of "Trogues Farm, in the occupation of A.," it may be shewn that A. was not a tenant. Goodtitle v. Southern, 1 M. & S. 299.

It may be laid down as a general rule that all facts relating to the subject and object of the devise, such as, that it was not in the possession of the testator, the mode of acquiring it, the local situation, and the distribution of the property, are admissible to aid in ascertaining what is meant by the words used in a will. Parke, J., in Doe v. Martin, 4 B. & Ad. 785.

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 show 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 also Carruthers v. Sheddon, 6 Taunt. 14. So where words have acquired a precise and technical meaning, no other meaning can be applied to them. Lord Kenyon, Lane v. Earl of Stanhope, 6 T. R. 352. In the case of a legacy to the testator's "heir," it cannot be shown that a testator was in the habit of calling a person his heir who was not so. Mounsey v. Blamire, 4 Russ. 384. If a will names the devisee, and it be shown by parol that

there are several to whom the name applies; yet this is not enough to let in parol evidence of intention, where it can be collected from the will itself who was intended. Doe v. Westlake, 4 B. & A. 57.

Where the ambiguity is not latent, or 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 show 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 to prove the individual intended. Price v. Page, 4 Ves. 680. But see 2 M. & W. 139. So in case of a devise "to Mrs. C." the Chancellor referred it to the Master to receive evidence to show the person intended. Abbott v. Massie, 3 Ves. 148. Where a will mentioned George, the son of George Gord, and also George the son of John Gord, a bequest to "George the son of Gord" was explained by proof of the declarations of the testator to mean George the son of George Gord; Doe v. Needs, 2 M. & W. 129. : in reply to the argument that this was a patent ambiguity, it was said that it could only appear ambiguous by showing aliunde the non-existence of a George the son of Gord, different from the other two Georges; and that the mention of another George in the same will had no other effect than extrinsic proof of the same fact would have had.

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 ten pounds, 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 show the quantity for which the parties agreed. 1 Phill. Ev. 521. It might indeed be contended that an instrument so imperfect on the face of it is no contract at all so as to exclude parol evidence. See antè, p. 3. As to the effect of omissions in a contract within the Statute of Frauds, see post, Assumpsit for not accepting goods." Where, in the entry of an appointment to a curacy 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. Bishop of Meath v. Lord Belfield, 1 Wils. 215. A demise offered in evidence was a printed blank form filled up and altered for use; held that the court might look at the parts struck out in order to ascertain the intent of the parties in what remained. Strickland v. Maxwell, 2 C. & M. 539.

Parol evidence admissible on questions of parcel or no parcel.] Where the question is "parcel or no parcel," parol evidence is admissible to explain a writing. Thus where a testator devised "all his farm called Trogues farm," it was held that it might be shown of what parcels the farm consisted. Goodtitle v. Southern, 1 M.'& S. 299. Where a lease professed to demise premises and a yard, extrinsic evidence was admitted to rebut the presumption that a cellar under the yard was also intended to pass. Doe v. Burt, 1 T. R. 701. So in case of a written agreement to convey "all those brick-works in the possession of A. B.," parol evidence of what passed on making the agreement was admitted to show what brick-works were intended to pass. Paddock v. Fradley, 1 C. & J. 90. Conditions of sale, seen by a purchaser at the

time of sale, are evidence against him to shew what was then reputed parcel of the premises conveyed to him by deed. Murley v. M‘Dermott, 8 A. & E. 138.

PRESUMPTIVE EVIDENCE.

Presumptive evidence is usually so called in contradistinction to direct or positive proof; though all moral proof is, in strictness, founded on probability and presumption. Thus a fact attested by the direct evidence of an ocular witness can only be admitted to be true on the double presumption that the witness neither deceives, nor is deceived. Presumptive evidence, though liable to be rebutted by evidence to the contrary, is not, in its nature, secondary to positive evidence. Thus, although the payment of rent may be proved by the positive evidence of a person who saw it paid, yet it may also be proved by the production of a receipt for later arrears, which affords a presumption that the earlier arrears are satisfied, without laying any ground for the introduction of such evidence by showing that positive evidence cannot be procured.

Presumptions have been divided, after the example of the Roman law, into three classes: 1. Presumptions juris et de jure. 2. Presumptions of law (juris). 3. Presumptions of fact (hominis).

(i.) The first kind are purely artificial and admit of no contradiction by contrary evidence; of this kind is the presumed revocation of a will by a subsequent alteration of the property. Goodtitle v. Otway, 2 H. Black. 522.; or the old rule of law by which a son born of a mother whose husband lived within the realm was conclusively held to be legitimate. Co. Litt. 244. a. So some damage is conclusively presumed to result from an unlawful act done by the defendant and actionable per se.

(2.) The second class of presumptions includes those cases in which a jury will be directed by the court to presume a fact, of which no evidence has been given. Thus a bill of exchange is always presumed to be given for a good consideration. Philliskirk v. Pluckwell, 2 M. & S. 395. So the law always presumes innocence; therefore, where a woman married a second husband after the first had gone abroad and not been heard of for a year, the party who wished to prove bigamy was called upon to show the first husband was then alive. R. v. Twyning, 2 B. & A. 386.; but see R. v. Harborne, 2 A. & E. 540. So the law presumes in favour of possession; and, in the case of land, presumes the highest estate in it, viz. a seisin in fee. See post, p. 22. So the continuance of things in statu quo will be generally presumed; as where the plaintiff being slandered in his official character proves his appointment to the office before the libel, his continuance in office at the time of the libel need not be proved, though averred. R. v. Budd, 5 Esp. 230. So the law presumes that a party intended that which is the immediate or probable consequence of his act. R. v. Dixon, 3 M. & S. 11. 15. These and similar presumptions admit of proof to the contrary; but, in the absence of such proof, the jury are as much bound to find agreeably to the legal presumption, as they are to find according to the law as explained by the judge.

(3.) The third class of presumptions is exclusively within the province of the jury, and they occur whenever direct proof of a fact is