filed by Woollam, stating that the rent of 731. 10s. was inserted in the agreement *by mistake, or with an unfair view, the real agreement being that the plaintiff was to have the lease at the same rent as the landlord paid for the premises to his lessor, and that he did not pay more than 601.; and the prayer of the bill was for a specific performance, by the execution of a lease by the defendant, according to the alleged agreement, at the rent of 60%. or such other rent as the defendant paid his lessor. The mistake and fraud was denied by the answer, but the parol evidence which was admitted without prejudice, supported the allegation of the plaintiff. Sir W. Grant dismissed the bill, it being admitted at the bar that there was no authority in direct support of it; but his Honour at the same time observed, that if the party who was defendant in this cause, had brought his bill for a specific performance of the agreement in writing, he should have felt himself bound by the decisions to have admitted the parol evidence against him, and to have given it effect; but as the evidence was offered, not for the purpose of resisting, but of obtaining a decree; first, to falsify a written agreement, and then to substitute in its place a parol agreement, to be executed by the court; and as it appeared to him, that the statute had been too much broken in upon by supposed equitable exceptions, he should not go further in receiving and giving effect to parol evidence, than he was forced by precedent.

*[ 84 ]

In respect, therefore, to the compulsory performance of executory contracts, the doctrine of the courts of equity appears to be, that, upon an allegation of fraudulent variance in the written agreement from the terms truly agreed upon by the parties, or of a collateral verbal agreement controuling or altering the effect of the instrument, they will refuse their extraordinary relief to the plaintiff by compelling a specific performance of the agree ment according to such verbal evidence of intention, unless actual fraud is also proved; but if the party relying upon such parol testimony, lays it before the court in the character of a defendant resisting an attempt to carry into effect a written agreement, fraudulently obtained, or varying through mistake or circumvention from the professed intention of the parties, "the ear of the [85] court will be open to every description of extrinsic evidence, and its active interference will be granted or denied according to the weight and value of such evidence.

*

Where loss or destruction can be

proved, the contents of

an instru

ment may be shown by parol evidence.

The doctrine is simple on the head of loss or accident. The whole contents of a deed may be verbally proved in all courts, where it is made satisfactorily to appear, that it has been lost or destroyed; and the fact of such loss or destruction, from the nature of the thing, can only, and is therefore required only to be made out upon grounds of strong inference and probability,(x) for the best evidence which the nature of the case admits ought to be received. Nor is the statute at all invaded by the admission of such evidence in a case within its provisions, since the evidence does not go to establish a verbal agreement, or to put a case out of the reach of the statute; but supposes the case to fall within it, and strives to demonstrate a compliance with its requisitions, by showing that an instrument did once exist with all the circumstances constitutive of its legal validity. It is also to be observed, that cases of this sort are favourably regarded by the courts, and though proof is required of the contents of the instrument, yet if destruction is proved by substantial testimony, the evidence of the contents will be helped by presumption against the spoliator.

It is moreover a well-grounded reason for admitting parol evidence of the contents, that the instrument itself is in the hands of the adversary who refuses, upon proper notice,(y) to produce it.

* [86]

Of the doctrine in respect to commercial contracts.

*PART VII.

Some Miscellaneous Topics.-Mercantile Contracts, &c.

WITH respect to mercantile contracts and adventures, it has been said, that as the articles are commonly extremely short, where a doubt arises about them, the usage and understanding of

(x) Vide Saltern. Melhuish, Ambler, 247. Whitfield v. Fausset, 1 Vez. 387.

(y) And see the Ni. Pr. case of Leeds v. Cook et Ux. 4 Esp. 256, where a letter had been written by the plaintiff to a witness, and the witness having had a subpana duces tecum from the defendant, had delivered the letter over to the plaintiff, who refused to produce it, having had no notice: Lord Ellenborough held, that as it was subtracted in fraud of the subpoena, parol evidence of its contents, although notice had not been given to produce it, should be admitted in odium spoliatoris.

merchants may be consulted thereupon.(z) An observation which ought to be understood with a proper restriction, for there cannot be a different rule of evidence in respect to commercial instruments, from that which prevails in other cases. The shortness, and often the perplexed language of these instruments, may leave them more open to explanation than others, and the sages of merchants may be resorted to as a medium of expla nation; but witnesses, whatever may be their experience, ought not, I presume, to be allowed to put their own private construction upon the contract, even for the purpose of explaining it; much less, as it should clearly seem, can such instruments, however loose, and whatever may be the practice among merchants, be altered, contradicted, or added to by parol and extrinsic evidence.(36) But as all instruments may be explained [ 87 ] by external proofs consistent with the grammatical sense and lan guage of their contents, it is to be observed, that where the usage and consent of a particular body of men, have affixed particular senses to words and phrases in their transactions with each other, the obscurity of these terms, where they occur in written contracts or instruments, is doubtless removable by the evidence of

(2) By Lord Hardwicke in Blunt. Cumyns, 2 Vez. 331.

(36) In Kaines v. Knightly, Skin. 454, see this point so determined in respect to a policy of assurance. See also Henkle. the Royal Exchange Assurance Company, 1 Vez. 317. In the case of Motteaux v the Governor and Company of the London Assurance, 1 Atk. 545, the policy was permitted to be set right by a label which had been entered into a book, and subscribed by both parties, containing the instructions and all the particulars of the agreement. But in the nisi prius case of Bates v. Grabham, 2 Salk. 444, determined by Lord Holt, there was no such natural ground for the admission of the extrinsic evidence ; for though it went to prove an alteration of the terms by consent, yet still, if such consent is verbal, and only to be got at through the medium of parol evidence, is not its admission equally opposed by the principle of law? and though it may be true that a policy of assurance is an instrument founded upon broad equitable principles, as Lord Mansfield has expressed himself; yet, unless equity allows a written instrument to be varied by verbal evidence, where the law will not, I do not see how these equitable principles can enlarge the doctrine of evidence, by their application to these instruments.

persons experienced in the subjects to which they relate, and acquainted with the ideas they are designed to convey.

In some certain cases, although the transaction relates to lands Transactions or hereditaments, the written authentication of it may be corin pais regar- rected or supplied by parol evidence. Of this kind are surrending realpro. perty, prove- ders of copyholds, which being in themselves mere matters of able by parol testimony. fact, though recorded for the better preservation of their memory, averments of mistakes in the entries of them, as well to the lands as the uses, have been admitted in courts of law.(a) Upon a similar principle also, where(37) a clerk had been presented to a church and instituted, but a blank was left in the bishop's register for the name of the patron, the omission was allowed to be supplied by parol evidence, for as the presentation might be made by parol, the effect of receiving the verbal testi*[88] mony was not to make that *pass by parol, which the law requires to be conveyed by writing. And though it be true, that if a matter not necessary to be in writing, is nevertheless, for greater solemnity or assurance, committed to paper, the intent of the parties must be collected only from the written contract or instrument, yet we can easily discern the distinction between the effect of a writing, which gives birth to and comprises the very essence of the transaction, and that which after the transaction has had its legal operation, records and preserves the memory of the fact.

Parol testi

mony, how.

Some particular cases there are in which, upon the broad ever impro- principles of the evidence, a matter, which ought otherwise per on other to be proved in writing, may be substantiated by parol testimony; occasions, is

good when it as, where such testimony comes from the mouth of a party's comes from own witness examined by himself, and makes for his adversary, the adversa

ry.

his adversary shall have the advantage of it. Thus, in Blunt v. Cumyns, it was held by Lord Chancellor Hardwicke, that the parol evidence examined by the plaintiffs, as to the articles in question in that cause, and not called for, might be called for by

(a) Towers v. Moor, 2 Vern. 98.

(37) 1 Wils. 215. What is said by Lord Kenyon on this case in Rex the inhabitants of Eriswell, T. R. 723, does not affect the proposition, that parol evidence is admissible in such a case, but denies that common reputation could be received as evidence.

the defendants.(6) And his lordship further observed, that at law, where a witness called on one side, proved a matter by parol which was in writing, and proper to be proved in writing, and it tended to the advantage of the adverse party, it was held, that being a witness called, and examined by themselves, it should be admitted as evidence; though it would not, if it [ 89 ] had been called on the other side; of which he said there was a case in the time of Holt, C. J.

Parol evidence has been also allowed to vary the terms of an Parol evidinstrument in writing, in the cases wherein a matter uninten- ence allowed to avoid the tionally introduced, has brought a transaction within the letter consequences of usury. and penalties of the statutes of usury. Though an agreement in writing ought not to be contradicted by parol evidence, aceording to the general rule, yet such rule would be carried to an unjust degree of severity, if it were suffered to preclude a man from avoiding the consequences of a penal law, by resorting to any evidence whereby his innocence might be proved. Thus, where upon a loan of 50%. a bond had been given in the penalty of 100%. conditioned for the payment of 587. at the end of six months, and on an action upon the bond, the defendant pleaded the statute of usury, and the plaintiff replied, that he lent the 50%. for a-year, and that it was agreed that the plaintiff should pay 87. for the year's for bearance, which was then the allowed rate of interest, and that by the scrivener's mistake it had been made payable at the halfyear's end; this allegation, though opposed to the words of the condition, was held good.(c)

(b) 2 Vez. 331. I have given my readers credit for not confounding parol with viva voce evidence. Extrinsic evidence is certainly the correcter expression. I have more frequently used the term "parol," because it is oftener found in the books. Indeed, in equity cases, it cannot well have any other signification than evidence extrinsic to the instruments themselves, from whatever sources it may be collected, since in courts of equity all the evidence is written. Nor is this inconsistent with the ancient use of the word "parol" in our law, which, as has before been said, was applicable to any instruments not sealed and delivered. It is not, however, meant to be denied, that in its larger sense the phrase "parol evidence," signifies that evidence, which is spoken in contradistinction to that which is written

(c) Cro. Car. 501, Nevison v. Whitley; and see the same point, in 2 Vent. 83, Bush v. Buckingham.