daughter, E., and that the testator knew nothing of the death of the legiti mate, 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 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 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. Oxenden, 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 Evidence-when 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. Doed. 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 aliundé 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

Farm," it was held that it might be shown of what parcels the farm consisted. Goodtitle d. Radford v. Southern, 1 M. & S. 299. But where a deed professes to convey a farm as described on a schedule and map annexed, a field not included in the map or schedule, though always treated as part of the farm, will not pass. Barton v. Dawes, 10 C. B. 261; 19 L. J., C. P. 302. Where the testator devised two cottages, one described as being in the occupation of A., and the other of B.; and it appeared that the testator had two cottages which had been internally divided, so that part only of one was occupied by A., and part of the other occupied by B.; it was held (Erle, J., dissent.) that only the portions of the cottages so occupied passed by the devise, and oral evidence was not admissible to show that he meant the entire cottages to pass. Doe d. Hubbard v. Hubbard, 15 Q. B. 227; 20 L. J., Q. B. 61. 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 d. Freeland 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.," oral 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. Although the question of parcel or no parcel is for the jury, the judge must tell the jury what is the proper construction of any documents necessary to be considered in the decision of that question. Lyle v. Richards, L. R., 1 H. L. 222. Conditions of sale, shown to a purchaser at the time of sale, are evidence against him of what was then reputed parcel of the premises conveyed to him by deed. Murly v. M'Dermott, 8 Ad. & E. 138. But they will not narrow the language of the conveyance. Doe d. Norton v. Webster, 12 Ad. & E. 442. See also Glave v. Harding, 27 L. J., Ex. 286.

PRESUMPTIVE EVIDENCE.

Presumptive evidence is usually so called in contradistinction to direct or positive proof whether written or oral; 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 presumption that the witness neither deceives nor is deceived. Perhaps the principal distinction is, that what is usually called a presumption may be rebutted without neecessarily impugning the testimony upon which it rests; but direct testimony cannot be impeached without attacking its credibility. Presumptive evidence is not, in its nature, secondary to direct evidence. Thus, 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. See observations in Doe d. Welsh v. Langfield, 16 M. & W. 513.

Some presumptions are artificial, and legally admit of no contradiction by contrary evidence; of this kind was the presumed revocation of a will by a subsequent alteration of the property. Goodtitle d. Holford v. Otway, 2 H. Bl. 522. So some damage is conclusively presumed to result from an unlawful act done by the defendant and actionable per se.

Another 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; vide post, p. 89. So the jury ought to be told to

presume legitimacy, Banbury Peerage case, 1 Sim. & St. 153; and marriage from cohabitation, except in prosecutions for bigamy, and formerly in actions for adultery; Doe d. Fleming v. Fleming, 4 Bing. 266; Campbell v. Campbell, L. R., 1 H. L. Sc. 182; Neo v. Neo, L. R., 6 P. C. 382, 386.

The law presumes in favour of possession, see Lee v. Johnstone, L. R., 1 H. L. Sc. 426; and, in the case of land, presumes the highest estate in it, viz., a seisin in fee. See post, p. 37. A good tenant to the præcipe is presumed in support of an old recovery. Gilb. Ev. 27. A deed thirty years old, and in unsuspected custody, is presumed to have been duly executed, post, tit. Proof of Deeds, &c. Long possession is a presumption of the regular endowment of a vicarage. Crimes v. Smith, 12 Rep. 4. 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 just before the libel, his continuance in office at the time of the libel need not be proved, though averred, if such continuance be consistent with the nature of the office. R. v. Budd, 5 Esp. 230; Steward v. Dunn, 12 M. & W. 655. So proof of official character at a certain time may in some cases be evidence that the party had that character within a reasonable time before. Doe d. Hopley v. Young, 8 Q. B. 63. Every place is presumably within some parish. R. v. S. Margaret's, 7 Q. B. 569. But a place, named generally, is itself presumed to be a vill; at least such was the old law; for there may be extra-parochial places, but all places in England are either vills or within a vill. Adeson v. Otway, Fréem. 228, 240. So the law presumes that a party intended that which is the immediate or probable consequence of his act. R. v. Dicon, 3 M. & S. 11, 15. In such cases, in the absence of contrary proof, the jury are, it should seem, as much bound to find agreeably to the legal presumption, as they are to find according to the law as explained by the judge.

A third class of presumptions is exclusively within the province of the jury, and they occur when direct proof of a fact is offered to the jury as probable evidence from which they may infer another fact. As where a witness says that he lent a certain printed book to A. B., who afterwards returned to him a book exactly like it, which he believes to be the same but cannot swear to its identity, this is proof of identity; for it is more probable that it was the same than another. Fryer v. Gathercole, 4 Exch. 262.

There is a species of presumption not uncommonly urged in the addresses of a counsel to a jury, viz., the presumption that the testimony of a witness who might be, but is not, called, is unfavourable to the party who omits to call him. So it is sometimes treated as a legitimate inference that a document, tendered in evidence by A. and objected to by B., is unfavourable to the case of B. Thus, where a document was offered in evidence to confirm the statement of a witness, but was rejected by the judge, it was held to be no misdirection for the judge to tell the jury that the document might be assumed, against the objecting party, to be one which confirmed the testimony of the witness. Sutton v. Davenport, 27 L. J., C. P. 54. Such presumptions are of no value as evidence per se, and are not worth much except under special circumstances. If the witness, not called, is present at the trial, he may be called by the opposite party. If not present, his absence may be owing to other causes than that of wilful suppression. Where the document is excluded by the ruling of the judge, it is because the law presumes that the ends of justice will not be advanced by the reading of it, and it seems a strong thing for the court to invite inferences against the objecting party, though counsel cannot be restrained from addressing any, however fallacious, arguments to the jury. But, generally, there is a fair presumption against a party who keeps back a document in his own possession. Att.-Gen.

VOL. I.

D

v. Windsor, Dean of, 24 Bear. 679. See also the observations hereafter on not calling a party as a witness, Proof by witnesses. We have seen that the refusal of a party to produce a document after notice to produce is not evidence per se; ante, p. 13; accord. Chaplin v. Reid, 1 F. & F. 315; but it is matter of observation to the jury. S. C.

The following are a few of the most useful and usual cases of presumption:The existence of an immemorial custom may be presumed from an uncontradicted usage of twenty years, and it ought to be so presumed by the jury if there be nothing in evidence to negative such presumption. R. v. Jolliffe, 2 B. & C. 54; Jenkins v. Harvey, i C. M. & R. 877. ↑ The flowing of the tide is presumptive evidence of a public navigable river; Miles v. Rose, 5 Taunt. 705; but the strength of this prima facie evidence depends upon the situation and nature of the channel ; R. v. Montague, 4 B. & C. 602; and long obstruction of the right of navigation is presumptive evidence of its legal extinction by natural or legal means. S. C. Land lying between high and low-water marks on the sea shore, or the banks of a navigable river is, primú facie, extra-parochial. R. v. Musson, 8 E. & B. 900; 27 L. J., M. C. 100; Bridgwater Trustees v. Bootle-cum-Linacre, L. R., 2 Q. B. 4. But for civil parochial purposes such land is now, by 31 & 32 Viet. c. 122, s. 27, no longer extra-parochial.

Cujus est solum ejus est usque ad calum et ad inferos, is a maxim juries are directed to observe.

A letter is presumed to have been written on the day on which it is dated, as against the writer. Hunt v. Massey, 5 B. & Ad. 902. And it may be evidence of the date as against a third person; thus, where indorsee sued the acceptor, who pleaded that plaintiff's indorser took the bill with notice that the defendant was not liable upon it, and indorsed it with like notice to plaintiff, it was held that defendant might prove that the indorser had such notice by producing letters written by him to defendant; and that the date on them was evidence that the letters had been written before the indorsement. Potez v. Glossop, 2 Exch. 191. The last decision was accompanied with some expression of doubt by the court; it was, however, followed in Malpas v. Clements, 19 L. J., Q. B. 435, where in an action by indorsee against acceptor, a paper, signed by the drawer and purporting to be of even date with the bill, was received in evidence against the plaintiff to prove the terms on which the bill was drawn.

An act done with the knowledge of a person who would have a right to object to it may be presumed to be done by his licence. Thus, where an enclosure had been made from a waste twelve or fourteen years, and seen by the steward of the lord from time to time, without objection, it was left to the jury to say whether the inclosure was made by the lord's licence. Doe d. Foley v. Wilson, 11 East, 56. An entry in a merchant's book, purporting to be a copy of a letter addressed by him to his partner abroad, is evidence, as against the writer, that it was also sent. Sturge v. Buchanan, 10 Ad. & E. 598. So indorsements on a promissory note admitting the receipt of interest, are presumed (except for the purpose of rebutting the Statute of Limitations, vide post, p. 36) to have been made at the time they bear date. Smith v. Battens, 1 M. & Rob. 341. And a bill is presumed to be made on the day of its date. Oven v. Waters, 2 M. & W. 91; Laws v. Rand, 3 C. B., N. S. 442; 27 L. J., C. P. 76; except when used to prove a petitioning creditor's debt at the date specified; Anderson v. Weston, 6 N. Č. 296, 301; but the soundness of this exception was questioned in Potez v. Glossop, supra. When the bona fides of a sale to the plaintiff by a bankrupt was disputed by the assignees, the plaintiff was allowed to use a receipt and delivery order for he goods, dated at the time of the alleged sale, but not delivered to the witness who produced them till after the sale and bankruptcy, as confirma