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Oral Evidence-when admissible.

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taken by the court, and it was held that on a parol demise it might be shown that "Lady Day" meant “Old Lady Day." The cases of Doe d. Peters v. Hopkinson, 3 D. & Ry. 507; and Rogers v. Hull Dock Co., 34 L. J., Ch. 165, are to the same effect. In pleading, it was held that “ Martinmas" must mean “New Martinmas,” even though followed by the words, “to wit, the 23rd of November," which is the day on which Old Martinmas falls. Smith v. Walton, 8 Bing. 235. In many parts of the country the practice of letting lands, according to the old style, is still retained ; and many text writers have expressed a general opinion that evidence of a custom of the country is always admissible to show that the feast day mentioned in the lease is referable to the old style, even though the lease be by deed. Vide tamen, 1 Smith's L. Cases, 8th ed., 619, 620.

Oral evidence, when admissible to explain ancient chartera, 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, oral 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. 106. Thus, in a crown grant of “tithes," contemporaneous leases, proceedings in causes, and oral testimony, may be resorted to in order to show the species of tithes intended to be conveyed. Lucton School, Governors of, v. Scarlett, 2 Y. & J. 330. An ancient crown grant of a seigniory or lordship, or of "terra de Gower," may be shown by modern user to include the sea-shore between high and low water. Beaufort, Dk. of, v. Mayor of Swansea, 3 Exch. 413 ; see also Hastings, Corporation of, v. Ivall, L. R., 19 Eq. 558; although the grant from the crown contains no appropriate words. Calmady v. Rowe, 6 C. B. 861. 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. Att.-Gen. v. Parker, 3 Atk. 576. So it was held that in an ancient charter, the word “inhabitants” might be explained by local usage. R. v. Mashiter, 6 Ad. & E. 153, and this decision was recognised in R. v. Davie, Id., 374, 386, where the same word, in a charter of Edward VI., was explained by usage to mean inhabitants paying church and poor-rates. So where an old charter granted and confirmed certain port-duties, it may be shown by user that the grantee is also entitled to other immemorial port duties not named in the charter. Bradley v. Newcastle, Pilots of, 2 E. & B. 427 ; 23 L. J., Q. B. 35, Ex. Ch.

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; and pastura bosci may be explained by usage and later admittances to mean the soil and wood itself. Doe d. Kinglake v. Beviss, 7 C. B. 456. So evidence of usage is admissible to show what is comprehended in parcels described by words of a general nature or doubtful import. Waterpark, Ld. v. Fennell, 7 H. L. C. 650 ; Hastings, Corporation of, v. Ivall, supra. See also Forbes v. Watt, L. R., 2 H, L. Sc. 214.

But evidence of usage, however long, will not be admitted to overturn the clear words of a charter. R. v. Varlo, supra. And in the case of modern deeds evidence of the acts of the parties is not admissible to show their construction of it. Clifton v. Ialmesley, 5 T. R. 565 ; Iggulden v. May, 9 Ves. 333 ; 2 N. R. 449, Ex. Ch. Even the conditions of sale, and the admissions of the grantee, are insufficient and inadmissible to narrow the operation of a deed of conveyance ; Doe d. Norton v. Webster, 12 Ad. & E. 442 ; although we have seen that, in the absence of the deed, such admissions might be evidence of its contents. Ante, p. 2. Nor can the subsequent correspondence or conduct of the parties de submitted to a jury as evidence by which “alone " to explain the meaning of a contract. Simpson v. Margitson, 11 Q. B. 23; Doe d. Morgan v. Poweli, 7 M. & Gr. 980.

Oral evidence admissible to discharge uritten agreements.] A deed cannot be revoked or discharged by parol, i.e. word of mouth, or writing not under seal ; Rutland's (Countess of) Case, 5 Rep. 26 a; West v. Blakevay, 2 M. & Gr. 729, 751, et seq. But an executory agreement in writing not under seal (other than a bill of exchange or promissory note, vide infra) may, before breach, be discharged by a subsequent oral agreement. B. N. P. 152. After breach, it cannot be discharged except by release under seal, or accord and satisfaction, Id.; 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, for an invalid agreement will not discharge the former one.

Case v. Barber, T. Raym. 450 ; Noble v. Ward, L. R., 1 Ex. 117; L. R., 2 Ex. 135, Ex. Ch. In these cases, wh ever the subsequent oral agreement has had the effect, in point of law, of varying or discharging the original one, it is (apart from statute, as to which vide infra) 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 oral agreement. Cuff v. Penn, 1 M. & S. 21, Where an auctioneer sold for 61. an article described as silver in a printed catalogue, but which he publicly stated at the sale to be only plated; held, that this was an oral sale of a plated article. Eden v. Blake, 13 M. & W.614.

A distinction, however, is to be observed on this head between simple contracts in writing under the Stat. of Frauds, and contracts at common law. In the former case, an oral 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, orally, waived the contract as to one lot to which the vendor could not make title ; Goss v. Nugent, Ld., 5 B. & Ad. 58; or, that the parties varied the day of completion. Stowell v. Robinson, 3 N. C. 928 ; Marshall v. Lynn, 6 M. & W. 109; Stead v. Dauber, 10 Ad. & E. 57;

Noble v. Ward, supra. See also Sanderson v. Graves, L. R., 10 Ex. 234. But it would have been otherwise if the contract had not been subject to the control of a statute ; for where such 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 to be proved partly by the written agreement, and partly by the subsequent oral terms engrafted upon it. Goss v. Nugent, Ld., 5 B. & Ad. 65, per cur.

A contract within the Stat. of Frands can, it seems, he wholly discharged orally. Goman v. Salisbury, 1 Vern. 240 ; Goss v. Nugent, Ld., 5 B. & Ad. 66, per cur. See, however, Harvey v. Grabham, 5 Ad. & E. 61, 74, per cur. But a contract in writing, good under the Stat. of Frauds, is not rescinded by a subsequent invalid oral contract intended to be substituted for the former one. Noble v. Ward, supra. By the Bills of Exchange Act, 1882, ss. 62, 89, the renunciation of the holder of a bill of exchange or promissory note of his rights against the acceptor must be in writing unless the bill or note is delivered up to the acceptor.

Oral evidence admissible to explain latent ambiguity.) Where an ambiguity, not apparent on the face of a written instrument, is raised by the introduction of oral evidence, the same description of evidence is admitted to explain it; for example, where a testator devises his estates of Blackacre, and has two Oral Evidence-when admissible.

29 estates called Blackacre, evidence may be admitted to show which of the Blackacres was 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 the testator intended. Per Gibbs, C. J., Doe v. Chichester, 4 Dow, 93; Doe d. Morgan v. Morgan, 1 Cr. & M. 235. And where the description of the devisee, or thing devised, is true in part, but not true in every particular, oral evidence is admissible to show the person or thing intended, provided there be enough on the face of the will to justify the application of the evidence; per Cur. in Miller v. Travers, 8 Bing. 248-9; Charter v. Charter, L. R., 2 P. & M. 315; L. R., 7 H. L. 364. Thus, an error in a Christian or surname may be proved. S. CC., and see Careless v. Careless, 1 Meriv. 384. Where the grantor has no lands agreeing exactly with the description in the deed, the lands intended 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. Where a farmer contracted in writing (as required by the Stat. of Frauds) to sell " his wool" at a certain price, evidence of a previous conversation between him and the buyer was held admissible to prove that his “ wool" meant wool in his possession bought by him of other farmers as well as wool of his own growth, but not admissible to prove that only a limited quantity of such wool was intended to be bought. Macdonald v. Long. bottom, 1 E. & E. 977; 28 L. J., Q. B. 293 ; 1 E. & E. 987 ; 29 L. J., Q. B. 256, Ex. Ch. See also Buxton v. Rust, L. R., 7 Ex. 280, 281, Ex. Ch., per Willes, J. So in construing a written contract of service under which A. was "to enter into the employ" of B., or A. was “to give the whole of his services to B.," oral evidence is admissible to show in what capacity A. was to serve B. Mumford v. Gething, 7 C. B., N. S. 305 ; L. J., 29 C. P. 105 ; Price v. Mouat, 11 C. B., N. S. 508 ; even although the Statute of Frauds requires a written contract. S. C. See also Chadwick v. Burnley, 12 W. R. 1077; T. T. 1864, Q. B. Where by a written agreement purporting to be between a company and the plaintiff, three of the directors of the company, who signed the same, agreed, in consideration of the advance of 5001. by the plaintiff to the company, to repay the same to the plaintiff

, oral evidence was held admissible to prove that it was binding on the directors personally. McCollin v. Gilpin, 6 Q. B. D. 516, C. A.

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 d. Le Chevalier v. Huthwaite, 3 B. & A. 632. There are also other authorities for admitting evidence that the testator was accustomed to misname a person, and thus to show who was meant by him, although there be a person in existence whose name corresponds with that in the will. Blundell v. Gladstone, 11 Sim. 467; 1 H. L. C. 778; Lee v. Pain, 4 Hare, 251. So by "my nephew, J. G.," testator's wife's nephew may be shown to be meant, though the testator also had a nephew J. G. Grant v. Grant, L. R., 2 P. & M.8; Id. v. Id., L. R., 5 C. P. 380 ; Id. 727, Ex. Ch. ; Sherratt v. Mountford, post, p. 30. See Wells v. Wells, L. R., 18 Eq. 504, cor. M. R., contra. 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 J. A. ; lield, that oral 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 d. Allen v. Allen, 12 Ad. & 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 showing 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 illegitimate, E. Doe d. Thomas v. Beynon, Id. 431. See also Hill v. Crook, infra.

Evidence of the testator's declaration of intention is only admissible where the language is clear and unambiguous, but the ambiguity arises from some of the circumstances admitted in proof, as to which of two or more persons the testator intended to express. Doe d. Hiscocks v. Hiscocks, 5 M. & W. 363, 369 ; Charter v. Charter, L. R., 7 H. L. 364. 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 the declarations of the testator were not admissible to show which was meant. Doe d. Hiscocks v. Hiscocks, supra. Where the devise was to the testator's “ nephews,” and evidence had been adduced to show that he had no nephews, but that his wife's nephews were meant, it was held that evidence that these could not have been intended by the testator was not admissible, without also showing some other class who were intended to take. Sherratt v. Mountford, L. R., 8 Ch. 928.

A devise to my dear wife C.” cannot be defeated by showing that the devisor had a lawful wife, M., alive when he went through a form of marriage with C. Doe d. Gains v. Rouse, 5 C. B. 422. But where B. makes a devise to his wife A., the devise may be defeated by showing that A. fraudulently concealed from B. that she had a husband living when she went through a form of marriage with B. Wilkinson v. Jonghin, L. R., 2 Eq. 319, following Kennell v. Abbott, 4 Ves. 802. Where a fine was levied of 12 messuages in Chelsea, and it appeared that the cognisor had more than 12 messuages in Chelsea, oral evidence was admitted to show which messuages in particular the cognisor intended to pass. Doe d. Bulkeley v. Wilford, Ry. & M. 88; S. C., 8 D. & Ry. 549.

It may be laid down as a general rule, that all facts relating to the subject of the devise, such as that 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 d. Templeman v. Martin, 4 B. & Ad. 785 ; Webber v. Stanley, 16 C. B., N. S. 698, 751, 752; 33 L. J., C. P. 217, 220, per cur.; Wigram on Interp. Wills, 51. Even the value of the property, and the charges upon it in the will may be shown in explanation of it

. Semb. Nightingall v. Smith, 1 Exch. 879. See also Allgood v. Blake, L. R., 8 Ex. 160, 162, Ex. Ch. In construing a will the court should place itself as fully as possible in the situation of the testator, and guide its construction of his intention in some degree by the light of the knowledge thus acquired. Hill v. Crook, L. R., 6 H. L. 265, 277 ; Charter v. Charter, L. R., 7 H. L. 364, per Lds. Cairns C. & Selborne. See further, ante, p 20.

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. Thus, where a testator devised his "estate at Ashton," it was held that oral 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 d. Chichester v. Owenden, 3 Taunt. 147; S. C. 4 Dow, 65; Webber v. Stanley, supra; Pedley v. Dodds, L. R., 2 Eq. 819. See also Carruthers v. Sheddon, 6 Taunt. 14. But a devise of lands“ in parish D.," will pass lands of which part only is in D., if it be shown by oral evidence that all was reputed to be in it. Anstee v. Nelms, 1 H. & N. 225 ; 26 L. J., Ex. 5; Whitfield v. Langdale, 1 Ch. D. 61. Where words have acquired a precise and technical meaning, no other meaning can be applied to them. Per Lord

Oral Evidencewhen admissible.

31 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 orally that there are several to whom the name applies; yet this is not enough to let in oral evidence of intention, where it can be collected from the will itself who was intended. Doe d. Westlake v. Westlake, 4 B. & A.57 ; Webber v. Corbett, L. R. 16 Eq. 515.

Where the ambiguity is not latent, or raised by extrinsic evidence, but patent or apparent on the face of the instrument, oral evidence is not admissible to explain such ambiguity. Thus, where a blank is left for the devisee's name in a will, oral evidence cannot be admitted to show whose name was intended to be inserted. Baylis v. Att.-Gen., 2 Atk. 239. Where the names of the devisees in a will of real property were all indicated only by single letters, a card kept by the testator separate from his will, containing “a key” to the letters, and showing the person meant by each, was held inadmissible to explain it, though referred to in the will. Clayton v. Nugent, Ld., 13 M. & W. 200. But where a blank was left for the Christian name only, oral evidence was admitted to prove the individual intended. Price v. Page, 4 Ves. 680. But see Doe d. Gord v. Needs, 2 M. & W. 139. So in case of a devise " to Mrs. G.," the Chancellor referred it to the Master to receive evidence to show the person intended, who found that the testator invariably called a Mrs. Gregg by the name of “Mrs. G.” 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 d. Gord 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. If an agreement, unambiguous on the face of it, is shown by extrinsic evidence to have a different meaning from that which it imports, and the extrinsic facts are undisputed, the construction of it is for the judge, who ought not to leave it to the jury as a question of the intention of the parties. Semb. Hitchin v. Groom, 5 C. B. 515.

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 be to deliver goods to the value of less than 101., and a blank be left for the quantity of goods to be delivered), in such a case it would seem that in an action for the non-performance of the contract, oral evinence may be admitted to supply the defect. 1 Phill. Ev. 521. An instrument so imperfect on the face of it is no perfect contract at all so as to exclude oral evidence. As to the effect of omissions in a contract within the Statute of Frauds, see post, Action 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 oral evidence. Meath, Bp. of, v. Ld. 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 Cr. & M. 539.

Oral evidence admissible on questions of parcel or no parcel.] Where the question is “parcel or no parcel,” oral evidence is admissible to explain a writing. Thus, where a testator devised “all his farm called Trogues

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