TO REBUT A PRESUMPTION.

347 itself follows this practice; as when a contract written or verbal is for the delivery of goods, though nothing be said about the time of delivery, the law presumes that the delivery intended was one within a reasonable time: so also with regard to price; as where a man purchases an article in a shop, or orders goods to be made, if nothing is said about price, the law will infer that the contract was made on a tacit mutual consent that the price should be a reasonable one. The maxim is expressio eorum quæ tacité insunt nihil operatur.) The expression of what is tacitly implied, is inoperative; i. e. gives no addi̟tional force. A common instance is that of promissory notes, which are sometimes thought to require the words "for value received," whereas the law implies that every promissory note is made for a good consideration; and hence the words are superfluous.(m)

§ 665. Following the general presumption which the law raises from silence in these cases, it is allowable to annex to an instrument customary incidents. The leading case upon this point is Wigglesworth v. Dallison(") where a tenant was allowed to take the away-going crops after the expiration of his lease, on proof that such was the custom of the country, his lease being silent on the point. So when a bill or promissory note is silent as to the days of grace, parol evidence may be given of the custom which varies in various localities; and the maxim is consuetudo loci observanda est, local custom is to be respected.

And in Lucas v. Bristowe.(0)

"A written contract expressed that defendant had bought 'fifty tons of best palm oil, expected to arrive in Bristol from Africa, per The Chalco, at 40%. 10s. per ton, usual tare and draught. Wet, dirty, and inferior oil, if any, at a fair allowance; and if any difference should arise, the same to be settled by arbitration.' In an action for not accepting the oil, parol evidence was admitted of a usage of trade at Bristol, to show that a delivery of a substantial portion of best oil with inferior descriptions, in the proportion of onefifth best and four-fifths inferior, would have been a compliance with the contract :-Held, that the written contract having left undefined what portion

(2) Broom's Leg. Max. 518.

See also Bacon's 2 C.'s rule. Coke Litt. 19. 1. a. and see Att. Genl. v. Ironmongers' Co 3 M. and K. 576. Ibid, 588,"here the prohibition is merely superfluous, and has no greater operation in preventing an appropriation of the fund in proportions different from those specified, than if the prohibition had been entirely omitted.'

(m) See Halch v. Trayes, 2 Ad. and Ell. 792.

(n) Dougl. 201; 1 Sm. L C. p. 299.

(0) 5 Jur. N. S. p. 68.

of the oil was to be wet, dirty, and inferior, the evidence of usage was admissible as explaining its terms,

§ 666. But no such evidence of custom can be given when the instrument is not silent: for it is of course open to the parties to exclude the operation of the custom by express agreement. The maxims are Quilibet potest renuntiare juri pro se introducto :(P) every one may renounce the benefit of a right in his favor-usually illustrated by a party declining to avail himself by plea of the statute of limitations. And again; Modus et conventio vincunt legem. (2) The form of agreement and the convention of parties overrule the law. Expressio facit cessare tacitum. That which is expressed excludes implication. Expressio unius est exclusio alterius.(r) The express mention of one thing

implies the exclusion of another.

§ 667. 5th. To rebut a presumption.-Since Presumption is merely an inference raised from, and not by the written instrument: parol evidence to show that the presumption is in fact faulty and not well founded, is admissible for it does not in any way contradict the writing. Thus the law presumes that a legacy to a creditor is in satisfaction of a debt; and that a portion advanced to a child is an ademption of a legacy to her. In both these cases parol evidence may be given to rebut the presumption.

3. WHERE PAROL EVIDENCE IS OFFERED AS ORIGINAL AND INDE. PENDENT TESTIMONY.

§ 668. In certain cases the law has made a writing the indispensi ble depository of evidence of a particular fact. Such for instance is the law which requires a will to be in writing :(s) contracts of a certain value to be in writing ;() acts of Courts of Justice, and the like. Here, to permit these facts te be proved by parol testimony

(p) See Broom's L. M. 546.

(q) Ibid, 538.

(r) Ibid, 505.

(s) St. of Wills. 1 Vic. c. 26,

(t) St. of Frauds 29. C. 2. c. 3,

WHERE USED AS ORIGINAL EVIDENCE.

349

would stultify the law. Accordingly a judgment cannot be proved by parol evidence, its only proof is the production of the record, or such exemplified, sworn, or certified copy, as the Legislature has approved. (v)

So again when parties have reduced their contracts to writing, they have tacitly consented that their agreements shall be evidenced by the writings alone; and here again the contract must be proved by its own production.

§ 669. But where a writing is only a collateral memorial of a fact, it will not exclude parol evidence of the same fact. Thus the fact of a marriage may be proved by a witness who was present at the ceremony, as well as by the registry. Thus the fact of payment of money may be proved orally, notwithstanding the existence of a receipt. So in Rambert v. Cohen, (2)

"Where a receipt for money has been given on unstamped paper, it may be used by a witness who saw it given, to refresh his memory."

§ 670. Where a document which might have been pleaded as an estoppel, has not so been, parol evidence is admissible to contradict the instrument.

§ 671. Parol evidence may always be given of inscriptions on walls, tombstones, mural tablets, sasanums let into buildings, and the like, which from their nature are incapable of removal.

Thus we have shown how the party is to supply the evidence; and in taking leave of this topic, I would beg to point out that there is no more delicate or important point in the whole of a pleader's duty, than that of considering what evidence he will bring forward to prove his

(v) Efforts have been made for many years in England, hitherto without success, to introduce a general system of Registration of Title deeds. The fear of exposing men's titles, the expense, the delay, the complicated machinery required, have all been against such a measure, as well as the opinion of a considerable number of professional men of great weight, at the head of whom stands Lord St. Leonards. In this country the benefit of such a system, as affording a record of evidence and defeating the unscrupulous litigation on false claims, is too obvious to require argument. Attempt have indeed been made by our Legislature to intrdouce a general system of Registration of Title deeds. But the effort has failed, because the registry was not made compulsory. An Act is now under consideration, which will repeal the old Regulations, and provide generally for the want.

The old Regulations are 36 of 1793. 38 of 1795, 17 of 1803. S. 17. Reg. 8 of 1805, Reg. 12 of 1805, S. 32. Reg. XX. of 1812, 4 of 1824 (Bengal.) Reg. 17 of 1802 and XII of 1851. (Madras) Reg. 9 of 1827 (Bombay.) Acts 30 of 1858, 19 of 1843, 4 of 1845, 18 of 1847. (w) 4 Esp. 213.

client's case, and obtain a judgment in his favour. In England the Barrister performs this when he advises on the evidence. In this Country the Vakeel will have to marshall his own forces. He will have two points to consider. First, what he is to prove; secondly, how he is to prove it. The first will to a certain extent have been chalked out for him by the points laid down for him by the judge. But even here he will have to see that these points are material, and pertinent, and sufficiently wide. It will be his duty to object otherwise at the preliminary hearing when points are fixed; or if necessary, if there has been an oversight, to urge their addition subsequently. But where the points are properly laid down, the Vakeel will still have to consider to a great extent what he is to prove: for it is an error to order that a particular document shall be produced, as is often done; that is pointing out what instruments of evidence are necessary, not what points are essential to be proved. The Vakeel will therefore first of all consider seriatim what points he must prove. Having done this; he comes to the second consideration-how he is to prove those points. He will see what is the best evidence which can be produced by him on each point. If he has written evidence which will exclude parol; if his written evidence is original or a copy: if the absence of the original has been sufficiently accounted for, or if sufficient notice to produce the original has been given, when it is in the hands of the opposite party. Then he will see whether his copies are true copies, and capable of being proved such. He will then proceed to see what oral testimony he must produce; how many witnesses on each point; which of his witnesses he will dispense with, where he has more than enough. He should take a careful note from each man's mouth of what he knows of the matter: testing him by cross-examination on points that seem to require it. He will see whether the witness can refresh his recollection from written evidence; and he will consider what objections are likely to be offered to the reception of his evidence written and oral, and how those objections are to be met and overcome. Then he will consider what is likely to be the evidence offered by the other side. He will consider whether such documentary evidence as the case discloses, or as has been filed, is open to objections, and what: and he will institute inquiry touching the character and antecedents of his adversary's witnesses, so as to be prepared for topics of cross-examination independent of those which may arise on the examinations in chief. If these matters be not attended to in time, the best case may be lost through want of care or sufficient preparation.

PROOFS APPLIED BY JUDGE.

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CHAPTER XXXIX.

II. PROOFS TO BE APPLIED BY THE JUDGE.

§ 672. All evidence, we may remember, is either direct or indirect the latter of which is the same as circumstantial. It is but compara

tively seldom that any case can be exclusively proved by direct testimony, though more or less of the facts may be so proved. For instance, where an attesting witness stands forward to swear to the execution of a document, that is direct evidence; because he is deposing to a fact which he saw, and so knows by the direct evidence of his senses; but in cases of fraud or force, their very nature ordinarily necessitates their being committed in secrecy, as for instance, murder and robbery in the catalogue of force, and forgery in that of fraud. Hence there can seldom be produced a witness who was actually present at the commission of the offence, unless either by accident, or as an accomplice; and in these cases the medium of proof is generally circumstantial evidence.

§ 673. In dealing with the circumstantial evidence (which must be established by direct evidence (see ante § 299) the nicest discrimination of the judge is called into play, to guard against an undue preponderance being given to any one or more circumstances; to see that the whole are received by him without omission; and that the chain of evidence is complete without any broken or faulty links. (x)

The provinces of the Advocate and the Judge are widely distinct. It is the duty of the former to prove of the latter to infer. Bias, so long as it does not blind a pleader to the weak points of his case, is by no means incompatible with, indeed oft times it is highly incentive to the proper discharge of his functions. It is totally inconsistent with the office of the judge; and it is a forgetfulness of this distinction which is apt to lead judges, especially where they are not aided by advocates on each side of the case before them, to adopt rather the views of a pleader than of a judge, and to support their own pre-conceived opinions by argument, rather than to hold the

(x) It is unnecessary to follow Starkie through that portion of his work which treats of the different provinces of judge and jury, as the two functions are in the Company's Courts ordinarily discharged by one and the same officer, the judge. But the judge should not jumble up the functions of judge and jury because they are united in him. The jury judges of fact, the judge of law; but here the judge should carefully keep the two apart; first with discrimination satisfy himself that the facts he has to judge on are sufficiently proved, and in his judgement show how and why; and then proceed to apply the law to them.