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person has gained a settlement in a parish by purchasing an estate, within the statute 9 G. i. c. 7. s. 5., evidence is admissible to shew, that less than thirty pounds was the consideration, though the deed of conveyance may express a greater consideration; for that act of parliament says, that no person shall gain a settlement, &c. by virtue of any purchase, unless the consideration for such purchase shall amount to the sum of thirty pounds bona fide paid (1). And for the purpose of setting aside a will on the ground of fraud, parol evidence may be given of what passed at the time of the testator's signing, and what the testator said; as in the case of Small v. Allen (2), where it was proved, that the testator at the time of the execution asked, whether the contents of the will were the same as those of a former will, to which he was answered in the affirmative, when in fact the contents were different. So, where indentures or other writings are not available in evidence, unless the consideration paid or contracted for is truly stated, it may be proved that a greater sum than is mentioned was actually paid, or that the writing does not contain the whole of the agreement, but that some of the terms of the agreement were omitted for the purpose of evading the provisions of the stamp acts. In these and similar cases the general reason against admitting parol evidence will not apply; the danger is, not, that the admission of such evidence would introduce uncertainty or fraud, but, that fraud would be assisted by its exclusion, the whole object of the evidence being to expose and defeat a secret fraud.

As a deed takes effect from the time of delivery, not from the time of the date, it may be proved to have been delivered eitlier before or after the day, when it purports to have been made. In an action of debt, therefore, upon a bond, the plaintiff may declare on a bond bearing date on a certain day, and prove the delivery on another day (3);

(1) R. v. Mattingley, 1 T. R. Ij. (a) 8 T. R. 147. R. v.Olney, i Maule Ic Selw.38;. (3) Godciards case, a Rep.4. b. or may state in his pleading, that the deed was indented, made, and concluded, on a different day from that on which the deed itself professes to have been indented and concluded. (1)

Extrinsic evidence may sometimes be admitted to establish a customary right, appendant or consequent to other rights established by a deed, though such customary right is not expressed in the deed, provided that it is not inconsistent w^th any of the stipulations. Thus, it may be shewn, that a heriot is due by custom on the death of a tenant for life, though not expressed in the lease (2). So, a lessee by deed may be entitled to an away-going crop by the custom of the country, though no such right is reserved by the deed. This was determined in the case of Wigglesworth v. Dallison (3), which was an action of trespass for cutting down corn, which the plaintiff claimed as his away-going crop after the expiration of a lease by deed. The jury found the existence of the custom; and it was afterwards moved, in arrest of judgment, that such a custom was repugnant to the deed; and to that effect a case was cited, which had been determined ten years before by Mr. Justice Yates. But the Court of King's Bench held, after a full argument and taking time to consider, that the custom was not repugnant. They considered such a customary right as consequential to the taking, in the same manner as a heriot may be due by custom, though not mentioned in the grant or lease. And the judgment of the Court of* King's Bench on this point was afterwards affirmed, on a writ of error, by the unanimous opinion of the Court of Exchequer-chamber.

But no proof will be admitted of such a custom as would vary or add to the stipulations expressed or necessarily implied in the lease. In the case of White v. Sayer (4), a

(1) Stone v Bale, 3 Lev. 348. Hall (3) I Doug. lof. v. Ci«anove, 4 East,477. (4) Palm. 111.

(1) P*r Cur. in White- v. Sayer, Palm. MI.

custom custom for a lord of a manor to have common of pasture in all the lands of his tenants for life dr years was held void and against law, "for that it is part of the thing demised," and consequently the custom would be contrary to the lease. And in Doe on the demise of Strickland v. Spence (i), it having been observed, among other things, in argument, that " the custom of the country might be let in as evidence of the holding where no express contract appeared, (though it could not govern the case then before the Court,)" Lord Ellenborough C. J. observed, that "the agreement to quit according to the time of entiy is ho more than the law would have implied, if it had not been so expressed;" and Mr. Justice Le Blanc added, that "the custom of the country would not make the tenant quit at a different time from that at which he entered;" from which it may be properly inferred, that when a lease has expressly fixed the time of entry, it implies so strongly and necessarily the time of quitting, that a custom cannot be set op, to establish a different time of quitting, without contradicting the lease.

Yet, in the case of Doe on the demist of Dagget v. Snowden(2), the court of Common Pleas are reported to have said, that, in a lease for years, if there is a taking from Old Lady-day, the custom of most countries would allow the lessee to enter on the arable land at Candlemas, to prepare it for Lent corn; and on the meadows not before May-day, when, in the northern counties, they are usually heyned in for hay. The point was not immediately before the Court; but, considering this dictum as a decision, it may perhaps be understood to imply, that a general time of entry in a lease refers to what the court called in that case, and what has since been called (3), the substantial time of entry, that is, to the time of entry on the principal subject of the demise; that

(i} 6East,i22. (3) See Doe v. Spcnce, 6 East, 120.

(2) 2 Biick. Rep. 1215. Doe v. Watkins, 7 East, 551. Doe

dem. Heap/ v. Howard, 1 1 East, 498.

11 this this does not necessarily involve the time of entry on the subordinate or accessory subjects of demise; that with respect to the latter, therefore, a lease, which mentioned only a general time of entry, might be considered as silent; and, consequently, that evidence of custom might be admitted concerning these subordinate parts, without contradicting the terms of the lease. Even thus explained, however, the opinion of the court on this point seems to carry the principle of letting in proof of custom, to explain or vary written agreements, much farther than it has been admitted in any of the later decisions.

Agreeably to the rules already mentioned, if, in a deed, a word of description is used, to which the law affixes a certain sense, it should seem, that evidence cannot be admitted to shew, that, by the custom of the county, the word bears a sense different from its ordinary legal acceptation, unless where the deed expressly refers to such customary or peculiar sense. It was, indeed, ruled by Lord Kenyon C. J. in a case at nisi prus (1), that, where the holding of certain lands in the city of Canterbury was from Michaelmas to Michaelmas, evidence was admissible to shew that, by the custom of the county of Kent, all demises to hold " from Michaelmas" commenced at Old Michaelmas. But the authority of this case seems overturned by that of Doe on the demise of Spicer v. Lea (2). One of the questions there was, whether a lease from Michaelmas generally, which prima facie must be taken to mean New Michaelmas, was capable of being shewn by extrinsic evidence, (such as the fact of a previous holding by the same tenant, and the understanding of the parties,) to mean Old Michaelmas. And to support the affirmative, the decision, already mentioned, of Lord Kenyon at nisi prius, was cited and relied on. But the court of King's Bench were of opinion, that no extrinsic evidence could be given to explain the time of holding stated in the deed, which

(1) Foiley dem the Mayor of Can- (t) n East, 312. terbury v. Wood, cited in 11 East,3i3.

must must be taken to be from New Michaelmas, since the act of parliament for altering the style; unless, as Lord Ellenborough C. J. observed, there had been some reference in the deed itself to the prior holding. The same principle which governs the last case seems equally applicable to agreements to sell a certain number of acres of land generally, in which case the acres are to be computed, not according to the custom of the place, but by the statute measure (i); though, it must be confessed that, in some cases, where the number of acres may be thought to have been put rather by way of description than measurement, or where some other grounds (not, indeed, very definable) appeared for an exception to the general rule, they have been computed according to the general understanding of the country (2S And, from analogy to the rule above mentioned, on a sale of so many bushels of corn generally, (supposing, that a custom to sell by any other than the Winchester measure were not illegal and void (3),) it might, perhaps, be laid down, notwithstanding a dictum in an old case to the contrary (4), that the bushel must be intended to mean not the customary but the statute bushel (5). It appears, indeed, to be a general principle, that when a word is used which has a legal meaning, it must be understood in its legal acceptation. [6)

Mercantile 3- Policies of insurance, though not specialty contracts, contract*. are within the same rule, and cannot be contradicted or varied by any unwritten agreement made by the parties previous to the time of signing the policy. Thus, in an early case, where, in an action on a policy of insurance from Archangel to Leghorn, the defendant attempted to shew, that the agreement before the subscription of the

(1) Win*. v. Earle, Cro. El. 167. {$) Sec R. v. Major, 4T. R. 750. Morian v. Tedcastle, Poph. 55. Wad- Ma ter. Ac of St. Cr.*s v. Laid Howdy v. Newton, 8 Mod. 176., and see ard de Wal.len, 6T. R. 1^8. 3T. R.i74. (4) Per Croke J. ia Floyd v. BeihiB,

(1) Morgan v. Tedcastle, Poph. _c5. 1 Roli. Rep. 420.

a Roll. Rep. 67. Sir J. Brum's case, (5) Hockin v. Cooke, 4T. R. 314.

cited 6 Rey. 67. Some v. Taylor, Cro. (6) 6 T. R. 344.
El. 665.

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