clear and unequivocal words of the policy. Parkinson v. Collier, Park, Ins. 416, 6th ed. So in an action on a warranty of "prime singed bacon," parol evidence was rejected of a practice in the bacon trade to receive bacon in some degree tainted, as "prime singed bacon." Yates v. Pym, 6 Taunt. 446, 2 Marsh. 141, S. Č. It has been doubted whether the practice of admitting parol evidence in these cases has not been carried to an inconvenient length. See Anderson v. Pitcher, 2 B. and P. 168.

A custom affecting the contract may be proved by parol in other as well as in mercantile 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, Dougl. 201. So in the case of a lease not under seal. Senior v. Armytage, Holt, 197. But where a covenant in express terms, or by necessary implication, excludes the customary right, evidence of such right is inadmissible. Webb v. Plummer, 2 B. and A. 746.

Parol evidence admissible to explain ancient charters, grants, &c.] In the construction of ancient charters, 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. and B. 406. Governors of Lucton School v. Scarlett, 2 Y. and J. 330. So in the construction of ancient grants and deeds there is no better way of construing them than by usage, and contemporanea expositio is the best way to go by. Per Lord Hardwicke, Attorney-General v. Parker, 3 Atk. 576. However general the words of ancient grants may be, they are to be construed by evidence of the manner in which the thing has been always possessed and used. Per Lord Ellenborough, Wild v. Hornby, 7 East, 199. There seems to be no distinction in this respect between charters and private deeds. Withnell v. Gartham, 6 T. R. 398, Stammers v. Dixon, 7 East, 200. Evidence of usage, however, will not be admitted to overturn the clear words of a charter. See 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. 452, S. C. Moore v. Foley, 6 Ves. 238.

Parol evidence admissible to discharge written agreements.] Although a deed cannot be revoked or discharged by parol, or even by writing not under seal, yet an executory agreement, in writing, not under seal, may, before breach, be discharged by a subsequent parol agreement; Lord Milton v. Edworth, 6.B.P.C. 587; but, after breach, it cannot be discharged, unless

by deed or accord and satisfaction. B. N. P. 152. Willoughby 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 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. 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. Wms. 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 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. 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 purpose 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 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. Oxendon, 3 Taunt. 147, S. C. in Error, 4 Dow, 65. See also Carruthers 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. Massie, 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 Phill. Ev. 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 Wils. 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, 2 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. Inhab. Holy Trinity, 7 B. and C. 611, sed vide Strother v. Barr, 5 Bingh. 155. But where a tenancy is thus primâ facie proved by parol, the other party who wishes to vary the terms of the tenancy must produce the written instrument. R. v. Rawden, 8 B. and C. 708. So a partnership may be proved by parol, although there is a deed of copartnership. Alderson v. Clay, 1 Stark. 405; and see Harvey v. Ray, 9 B. and C. 356. Vide ante, p. 1.

PRESUMPTIVE EVIDENCE.

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. See post.

As almost every fact is capable of being proved by presumptive as well as by positive evidence, a few 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 præcipe was seized of the freehold, and such seisin need not be proved. Gilb. Ev. 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 Rep. 4, and see Wolley v. Brownhill, M'Clel. 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. Jolliffe, 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 primâ facie evidence depends upon the situation and nature of the channel. R. v. Mountague, 4 B. 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 by the defendant, as agent to the plaintiff, and it appeared that the course of dealing was for the defend

ant to pay to the plaintiff every day 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 Tuunt. 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 Belloix v. Lord Waterford, 1 D. and R. 16. The mere production of a cheque drawn by the defendant on his banker, and payable to the plaintiff, with proof that he endorsed his name upon it, and that it has been paid, affords primâ 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 by the maker to A. for it might have been given to a third person, and by him to A. Lloyd v. Sandilands, Gow, 16, sed quære.

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. Searle v. Lord Barrington, 2 Str. 826. Rose v. Bryant, 2 Campb. 322, and see 2 Phill. Ev. 137, 1 Stark. Ev. 310.

Presumption of property.] Proof of the possession of land, or of the receipt of rent from the person in possession, is primá 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. Rowe v. Grenfel, R. and M. 396. See Rowe v. Brenton, 8 B. and C. 737. Payment of a small unvaried rent for a long series