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by deed or accord and satisfaction. B.N. P. 152. WilUntghln/ v. Backhouse, 2 B. and C. 824. So it seems, that where the instrument is in writing pursuant to the statute of frauds, it may yet be discharged by a subsequent parol agreement before breach. 1 Phill. Ev. 545, and see Cuff v. Penn, 1 M. and S. 21, ante p. 9.
Parol evidence admissible to explain latent ambiguity.] Where an ambiguity not apparent on the face of a written instrument is raised by the introduction of parol evidence, then from the necessity of the case, the same description of evidence is admitted to explain the ambiguity; for example, where a testator devises Ms estate of Blackacre, aod 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. 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 show that the name was mistaken by the person who took the instructions for the will, Beaumont v. Fell, 2 P. Wins. 141, and see Careless v. Careless, 1 Meriv. 384.. And where a devise was to S. H. second son of T. H., but in fact he 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 not. Doe v. Huthwaite, 3 B. and A. 632. So where a tine was levied of twelve messuages in Chelsen, and itappeared that the cognizor had more than twelve messuages in Chelsen, parol evidence was admitted to show which messuages in particular the cognizor intended to pass. Doe v. Wilford, R.and M. 88. 8 D. and R. 549. 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 puqrose of applying the terms to a different object. 3 Stark. Ev. 1026. Thus, where a testator devised his •' estate at Ashton," it was held, that patrol 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. Oxendon, 3 Taunt. 147, S. C. in Error, 4 Dow, 65. See also Carrutliers v. Sheddon, 6 Taunt. 14.
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 show whose name was intended to be inserted. Baylis v. Att.-Gen. 2 Atk. 239. See Doe v. Westlake, 4 B. and A. 57. 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. So in case of a devise "to Mrs. C." the Chancellor referred it to the Master to receive evidence, to show the person intended. Abbot v. Manic, 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 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 Pkill. Kv. 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 Will. 215.
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 by evidence of what parcels the farm consisted. Goodtille v. Southern, 1 M. and S. 299. So in case of a written agreement to convey" all those brick-works in the possession of A.B.," declarations of A. B. at the time of the agreement were admitted to show what the brick-works were. Paddock v. Fradley, 1 Crom. and Jer. 90; and see Davis v. Lewis, 1 Chitty's Rep. 535, 8 D. and R. 554.
Parol evidence admissible to prove a certain relation between parties.] The relation or relative situation of two parties may be proved by parol, though the contract out of which- that relation arises be in writing. Thus in a settlement case it has been held that parol evidence of the fact of tenancy is admissible though the pauper held under a written contract. R. v. Iuhab. Holy Trinity, 7 B. and C. 611, sed videStrother v. Barr, 5 Bingh. 155. But where a tenancy is thus prima facie proved by parol, the other party who wishes to vary the terms of the tenancy must produce the written instrument. B. ti. Rawden, 8 B. and C. 708. So a partnership maybe proved by parol, although there is a deed of copartnership. Alderson v. Clay, 1 Stark. 405; and see Havvey v. Ray, 9 B. and C. 356. Vide ante, p. 1.
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 tie earlier arrears are satisfied), without laying any ground for the introduction of such evidence by showing that positive evidence cannot be procured. See post.
As almost every fact is capable of being proved by presumptive as well as by positive evidence, a i'evr of the most useful cases only will be selected as examples of the nature and application of presumptive evidence. In case of an ancient recovery accompanied by possession, it shall be presumed, that the tenant to the praecipe was seized of the freehold, and such seisin need not be proved. Gilb. Kv. 27. So a deed, thirty years old", or upwards, is presumed to have been duly executed, provided some account be given of the deed, where found, &c. B. N. P. 255. An endowment of a vicarage may be presumed from the long and continued possession of tithes and other profits. Crimes v. Smyth, 12 Hep. 4, and see Wolleu v. Brousnhitl, M'Ctel. 332. A license may be presumed, as where an enclosure having been made from a waste, twelve or fourteen years, and seen by the steward of the lord from time to time, without objection made, it was left to the jury to say whether or not the enclosure was made by the lord's license. Doe v. Wilson, 11 East, 56. The existence of an immemorial custom may be presumed from an uncontradicted usage of twenty years. R. v. JollijJ'e, 2 B. and C. 54, 3 D. and R. 240, S. C. The flowing of the tide is presumptive evidence of a public navigable river. Miles v. Rose, 5 Taunt. 705, 1 Marsh. 313, S. C. But the strength of this prima facie evidence depends upon the situation and nature of the channel. /(. v. Mimntague, 4 J!, and C. 602.
Presumption of payment.] If a landlord give a receipt for the rent last due, it is to be presumed that all former rent due by the tenant has been paid, Gilb. Ev. 157; and, if the acquittance is under seal, it is an estoppel, and the presumption cannot be rebutted. Ibid. 158. Where a bill of exchange negociated after acceptance is produced from the hands of the acceptor after it is due, the presumption is, that the acceptor has paid it. Gibbon v. Featherstonehaugh, 1 Stark. 225. Pfiel v. Vanbatenberg, 2 Campb. 439. Proof that the plaintiff, and other workmen employed by the defendant, came regularly to receive their wages from the defendant, whose practice was to pay every week, and that the plaintiff had not been heard to complain of non-payment, is presumptive evidence of payment. Lucas v. Novosilieski, 1 Esp. 296, Sellen v. Norman, 4 C.and P. 80. So where the demand was for the proceeds of milk sold daily to customers bv the defendant, as agent to the plaintiff, and it appeared that the course of dealing was for the defendant to pay to the plaintiff every dav the money which she had received, without any written voucher passing, it was ruled that it was to be presumed, that the defendant had in fact accounted, and that the onus of proving the contrary lay on the plaintiff. Evans v. Birch, 3 Campb. 10. So where goods have been consigned to a factor to sell on commission, it may be presumed after a reasonable time (e.g. 14 years) has elapsed, that he has accounted. Topham v. Bruddick, 1 Taunt. 572. Although, in analogy to the case of bonds, Lord Ellenborough ruled that a promissory note might be presumed to be paid after twenty years; Duffield v. Creed, 5 Esp. 52; yet it has been since held that the case is distinguishable from that of bonds, and that the rule as to twenty years does not apply. Du BeWrix v. Lord Waterford, 1 D. and R. 16. The mere production of a cheque drawn by the defendant on his bunker, and pavable to the plaintiff, with proof that he endorsed his name upon it, and that it has been paid, affords prima facie evidence of payment to him. Egg v. Barnett, 3 Esp. 196. But it was ruled by Dallas, C. J. that the mere proof of a cheque being made payable to A. and of A. having received payment of it, is not evidence of the payment of money bit the maker to A. for it might have been given to a third person, and by him to A. . Lhyd v. Sandilands, Gow, 16, sed qutere.
Payment of a bond is presumed after twenty years, without demand made; Oswald v. Leigh, 1 T.R. 270; and even after the lapse of a less time, if other circumstances concur to fortify the presumption, as a settlement of accounts in the mean time. Ibid. Colsel v. Budd, 1 Campb. 27. The presumption may be rebutted by the defendant's admission of the debt, or by proof of payment of interest within twenty years. Vide infra. So by proof that the defendant has resided abroad during the whole of the time; Newman v. Newman, 1 Stark. 101; but proof of the defendant's poverty is not sufficient to rebut the presumption. Willaume v. Gorges, 1 Campb. 217. Indorsements on the bond, made by the obligee, acknowledging the receipt of interest within twenty years, are admitted to rebut the presumption, provided there be evidence that such indorsements existed before the presumption of payment arose. Searlev. Lord Barrington, 2 Str. 826. Rose v. Bryant, 2 Campb. 322, and see 2 Phill. Ev. 137, 1 Stark. Ed. 310.
Presumption of property.] Proof of the possession of land, or of the receipt of rent from the person in possession, is prima facie evidence of seisin in fee, see post in Ejectment. The owner of the fee-simple is presumed to have a right to the minerals, but that presumption may be rebutted by absence of enjoyment, and user by persons not the owners of the soil. Rome v. Grenfel, R. and M. 396. See lloire v. Brenton, 8 B. and C. 737. Payment of a small unvaried rent for a long series of years  to tlie lord of a manor, raises the presumption that the rent is a quit rent, and not that the lord is entitled to the land. Doe v Jobnson, Govi, 173. A recovery in trover for a parcel of lead dug out of a mine affords no evidence of the plaintiffs possession of the mine. B. IV. P. 33. Possession of personal chattels is prima facie evidence of property, see post, in "Assampsit on Policy of Insurance." And see more as to the presumption of ownership, post "Trespass."
Presumption of grants, £fc] Evidence of an adverse enjoyment of lights for twenty years or upwards, unexplained, affords a presumption of a grant to enjoy such lights. Lewis v. . Price, 2 Sound. 175 (re). So an adverse unexplained enjoyment of a right of way for above twenty years, is sufficient to warrant a jury in presuming a grant of the way, though such grant must have been made within twenty-six years, all former ways being at that time extinguished by operation of an enclosure act. Campbell v. Wilson, 3 East, 294. And so where the way I'as been used for thirty years, a grant may be presumed, though there had been an absolute extinguishment of the right of way a few years before by unity of possession. Keymer v. Summers, cited 3 T.R. 157. Where the defendant pleaded a right of way granted by a lost deed, and the plaintiff traversed the grant, and the judge directed the jury, that if they thought the defendant had exercised the right of way uninterruptedly for more than twenty years by virtue of a deed, they would find for the defendant; but, if they thought there had been no way granted by deed, they would find for the plaintiff: it was held, that this direction was right. Levett v. Wilson, 3 Bingh. 115. The uninterrupted possession of a pew for thirty-six years affords a presumption of title. Rogers v. Brooks, cited 1 T. R. 431 (n). But, though uninterrupted possession of a pew in the chancel of a church for thirty years is presumptive evidence of a prescriptive right to the pew, in an action against a wrong doer, yet such presumption may be rebutted by proof, that the pew had no existence shortly before the thirty years. Griffiths v. Matthews, 5 T.R. 296. .Twenty years' exclusive possession of a stream of water in any particular manner affords a conclusive presumption of right in the party enjoying it, derived from a grant or act of parliament, but less than twenty years may or may not afford such a presumption, according as it is attended with circumstances to support or rebut the right. Per Lord Ellenborough, C. J. Bealey v. Shaw, 6 East, 215. Where it had been proved, that the owners of a fishery and their lessees had for above twenty years publicly landed their nets on another's ground, and had occasionally repaired the landing-places, it was held that it was properly left to the jury to presume a grant of the right of landing nets to the owners of the fishery. Gray v. Bond, 2 B.